IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.30187 OF 2017 (GM-CPC) & WRIT PETITION NO.31721 OF 2017 (GM-CPC) BETWEEN MRS PARVATHAMMA W/O D K CHANNABASAPPA AGED ABOUT 45 YEARS RESIDING AT DEVANURU GRAMA DODDAKOWLANDE HOBLI NANJANGUD TALUK MYSORE DISTRICT-571301. … PETITIONER (BY SRI SHRIKARA P K, ADVOCATE) AND 1. MR SHIVANNA S/O LATE BASAVALINGAPPA AGED ABOUT 72 YEARS RESIDING AT DEVANURU GRAMA DODDAKOWLANDE HOBLI NANJANGUD TALUK MYSORE DISTRICT-571301.
2. MR MARISWAMY S/O LATE BASAVALINGAPPA AGED ABOUT 50 YEARS RESIDING AT DEVANURU GRAMA DODDAKOWLANDE HOBLI NANJANGUD TALUK MYSORE DISTRICT-571301.
3. TAHSILDAR NANJANGUD TALUK MYSORE DISTRICT-571301. … RESPONDENTS (BY SMT H R ANITHA, HCGP FOR R3;
R1 & R2 ARE SERVED & UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 3.4.2017 PASSED ON THE INTERLOCUTORY APPLICATION BEARING I.A.NO.XXV FILED IN O.S.NO.73/2010 ON THE FILE OF THE HON’BLE PRINCIPAL CIVIL JUDGE AND JMFC AT NANJANGUD VIDE ANNEX-A AND CONSEQUENTLY ALLOW THE SECOND APPLICATION DATED 10.3.2017 VIDE ANNEX-H AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a declaration suit in O.S.No.405/2010, is invoking the writ jurisdiction of this court for assailing the order dated 3.4.2017, a copy whereof is at Annexure – A whereby, the learned Principal Civil Judge, Nanjangud, having rejected his application in I.A.No.25 filed under Order XVI Rules 1 & 2 r/w section 151 of CPC, for subpoena has been denied. After service of notice, the official respondent No.3 is represented by the learned High Court Govt. Pleader Smt.H.R.Anitha. The contesting respondent Nos.1 & 2 having been served with notice, have chosen to remain unrepresented.
2. Having heard the learned counsel for the petitioner and learned High Court Govt. Pleader, this court is of the considered opinion that reprieve needs to be granted to the petitioner for the following reasons:
(a) ordinarily it is for the litigant to lead evidence of his choice by examining the concerned persons as witness by producing the necessary material to substantiate their claim; the court cannot decide as to who should be examined by the litigant as a witness, subject to all just exceptions into which the case of the petitioner does not fit;
(b) the witness whom the petitioner wanted to examine to substantiate his stand having not come before court, the petitioner desired to examine another person which the court below ought to have considered leniently; instead the court below has formed a tentative opinion at the stage of the trial itself as to the sufficiency of the evidentiary material on record which is not a fair procedure to be followed; thus, there is an error apparent on the face of the record warranting indulgence of this court; and (c) what prejudice would have been caused to the other side if the petitioner’s request for subpoena was favoured, is not forthcoming from the text of the impugned order, and not even a whisper is made with regard to the same; these apparent errors are accumulated in the impugned order and make it vulnerable for challenge.
In the above circumstances, these Writ Petitions succeed; impugned order is set-at-naught; petitioner’s subject application having been favoured, the trial court needs to summon the person named for being examined as witness from the side of the petitioner.
All contentions of the parties are kept open.
Sd/- JUDGE cbc