IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.48739/2014 & 52827/2014 (GM-CPC) BETWEEN:
SMT. NIRMALA V.E. D/O EKNATH RAO MAJOR, AGED 48 YEARS R/A NO.681, 1ST FLOOR 1ST STAGE, II MAIN ROAD HUTTING COLONY DOMLUR, BANALORE-71.
(By Mr. SYED SALMAN, ADV., FOR Mr. YOUNOUS ALI KHAN, ADV.,) AND:
1. MUTHU S/O LATE AMMAYAMMA AND KATAPPA AGED ABOUT 70 YEARS R/A NO.36, PUDUPETE ARAKONAM-631002.
2. PILLAPPA S/O LATE AMMAYAMMA AND KATAPPA AGED ABOUT 54 YEARS R/A NO.277/A SINGAPUR VARDARAJ NAGAR SONNENAHALLI VILLAGE BANGALORE NORTH TALUK BANGALORE-64.
3. PILLAMMA D/O LATE AMMAYAMMA AND KATAPPA … PETITIONER AGED ABOUT 55 YEARS R/A NO.681, 1ST STAGE 2ND MAIN ROAD DOMLUR HUTTING COLONY BANGALORE-560071.
4. SUSHEELA D/O LATE AMMAYAMMA AND KATAPPA AGED ABOUT 43 YEARS R/A NO.6815, HUTTING COLONY DOMLUR LAYOUT, GAUTAMPURA BANGALORE-560071.
5. MUNIRATHNAM S/O LATE AMMAYAMMA AND KATAPPA AGED ABOUT 42 YEARS R/A NO.62, CHAKRANAGAR VISHWANEEDAM POST, BANGALORE-64.
… RESPONDENTS (By Mr. N. NAGARAJA, ADV., FOR R1 – R5) - - -
These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India, praying to quash the impugned order dated 11-9-2014 passed in O.S.No.4403/2009 passed by the Court of the Additional City Civil and Sessions Judge, at Bangalore and produced at Annex-D and permit to cross examine PW-1 and etc.
These Writ Petitions coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER Mr.Syed Salman, learned counsel for Sri.Younous Ali Khan, learned counsel for the petitioner.
Mr.N.Nagaraja, learned counsel for the respondent Nos.1 to 5.
2. These writ petitions are admitted for hearing.
With consent of the parties, the same are heard finally.
3. In these petitions under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 11.09.2014 passed by the Trial Court by which application preferred by the petitioner under Section 151 r/w Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) has been rejected.
4. I have heard the learned counsel for the petitioner and have perused the record. From perusal of the record, it is evident that the applications are not supported by an affidavit setting out the reasons. It has further been held that fair opportunity is granted to defendant No.2 to cross-examine plaintiff No.1. Accordingly, the applications have been rejected.
The impugned order reads as under:
“Heard on the applications. Applications are not supported by Affidavits setting out the reason. Moreover fair opportunity is granted to D2 to cross-examine PW1.
There are no merits in the application. Hence, I.A.Nos.6 & 7 are rejected.”
Thus, from perusal of the impugned order, it is evident that it is cryptic and suffers from the vice of non application of mind. In case the Trial Court was of the opinion that the application filed by the petitioner is not maintainable and the same is not supported by an affidavit, the Trial Court ought to have dismissed the application on that very ground and should not have expressed opinion on merits. The impugned order therefore is quashed and set aside and the Trial Court is directed to decide the application of the petitioner afresh by a speaking order.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS