IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS.25154 & 26149 OF 2019 (GM-CPC) BETWEEN:
MRS. PATRICA PERERIA NEE GONSALVES D/O. LATE HENRY GONSALVES AGED ABOUT 56 YEARS RESIDING AT PADU HOUSE BONDANTHILA VILLAGE MANGALURU TALUK D.K.DISTRICT ... PETITIONER (BY SRI RAJASHEKAR S., ADVOCATE) AND:
1. MRS.TRESSY D’SOUZA NEE GONSALVES D/O.LATE HENTRY GONSALVES AGED ABOUT 57 YEARS R/AT ANIMANI COTTAGE BALLAJE, PADIL, KATIPALLA 3RD BLOCK, KATIPILLA POST MANGALURU DAKSHINA KANNADA DISTRICT 2. M.R.LANCY GONSALVES S/O.LATE HENRY GONSALVES AGED ABOUT 51 YEARS R/AT D.NO.1-18-1266 PAMPI HOUSE, NEAR URVA CHURCH ASHOK NAGAR, MANGALORE D.K.DISTRICT-574 151 3. MR.MAXIM GONSALVES S/O.LATE HENRY GONSALVES AGED ABOUT 49 YEARS R/AT D.NO.1-18-1266 PAMPI HOUSE, NEAR URVA CHURCH ASHOK NAGAR, MANGALORE D.K.DISTRICT 4. MRS.JESSEY D’SOUZA NEE GONSALVES D/O.LATE HENTRY GONSALVES AGED ABOUT 57 YEARS R/AT PETER D’SOUZA COMPOUND BENDROWELL, 3RD CROSS MANGALORE, D.K.DISTRICT ... RESPONDENTS (BY SRI ANISH ACHARYA, ADVOCATE FOR R3; NOTICE TO R2 IS DISPENSED WITH V/O. DATED 04.09.2019;
R1 AND R4 ARE SERVED AND UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.04.2019 (ANNEXURE-A) PASSED BY THE COURT OF II ADDITIONAL SENIOR CIVIL JUDGE & CJM, MANGALURU ON I.A.NOS.12 AND 13 IN OS.NO.181/2012 AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the fourth defendant in a partition suit in O.S.No.181/2012, is invoking the writ jurisdiction of this Court for assailing the order dated 10.04.2011, a copy whereof is at Annexure – A, whereby the learned Senior Civil Judge, Bengaluru having rejected his application in I.A.Nos.12 and 13 filed under Section 151 of CPC, 1908, has refused to recall witness-PW1 to the box for cross- examination. After service of notice, the respondent No.3 having entered appearance through his counsel resists the writ petitions.
2. Having heard the learned counsel for the parties and having perused the petition papers, the relief needs to the granted to the petitioner for the following reasons:
a) The suit is for a decree of partition & separate possession; the petitioner being the fourth defendant has filed the Counter Claim; on the eventful day, he could not have the opportunity of cross examining of PW-1; in the subject application which are supported by affidavits he has offered explanation, which to this Court appears to be plausible;
b) ordinarily, the parties should have full opportunity to substantiate their version by leading evidence which includes cross-examination of the witnesses of the other side, subject to all just exceptions; denying such an important right would prejudice the case of litigant which is not a happy affair; the impugned order is an organic mistake that would affect the outcome of the suit to the prejudice of the petitioner;
c) the justice of the case warrants that the petitioner ought to have been granted opportunity to cross-examine the PW1, of course subject to condition and cost; this aspect having not been adverted to by the learned trial Judge, there is an error apparent on the face of the impugned order warranting indulgence of the writ Court.
In the above circumstances, this writ petitions succeeds; the impugned order is set at naught; the petitioner’s subject application having been favoured, the Court below is directed to recall PW-1 to the witness box to facilitate cross examination by the petitioner on payment of cost of Rs.2,000/- to the respondents on the next date of hearing or within a period of one month, whichever is later, failing which the order now quashed shall stand resurrected.
Sd/- JUDGE KTY