IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19th DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOs.275/2019 & 2095/2019 (GM-CPC) BETWEEN:
Mrs. Pinky P. Jain Aged about 40 years, W/o Prakashchand, Residing at ‘Parasmani’, 1st A Cross, Sudhamanagar, Bengaluru – 560 027. ... Petitioner (By Sri. Rajagopala Naidu, Advocate) AND:
1. Mrs. Rukmini Aged about 32 years, W/o D. Ravi, 2. Mr. D. Ravi Aged about 43 years, S/o Doddamuniyappa, Both respondents are R/at No.65, Veerabhadraswamy Temple Street, Kalkere, Horamavu Post, Bengaluru – 560 043.
3. Mr. Patalappa Aged abut 39 years, S/o late Ramaiah, R/o Kalkere Village, K.R. Puram Hobli, Bengaluru East Taluk – 560 047. … Respondents (By Sri. Sudhakar .V, Adv. for C/R-1 & R-2;
Notice to R-3 is dispensed with v/o dated 19.03.2019) These writ petitions are filed under Article 227 of the Constitution of India praying to set aside the order dated 29.11.2018 dismissing I.A. No.19 and 20 passing common order on both the applications by the XIV Additional City Civil Judge, Bengaluru City, CCH-28, in O.S. No.4646/2012 as per Annexure-A filed by the petitioner.
These writ petitions coming on for Preliminary Hearing this day, the Court made the following:
ORDER These writ petitions are filed by the plaintiff against the order passed by the XIV Additional City Civil Judge, Bengaluru made in O.S. No.4646/2012 dated 29.11.2018 rejecting I.A. No.19 filed under Section 151 of the Code of Civil Procedure to reopen the case for cross-examination of DW.2 and I.A. No.20 filed under Order 16 Rules 1 and 2 read with Section 151 of Code of Civil Procedure to permit her to examine the witnesses mentioned therein.
2. The plaintiff filed a suit for permanent injunction against the defendants raising various contentions. Defendants disputed the ownership of the plaintiff and contended that defendants are the owners and in possession of the suit schedule property.
3. When the matter was posted for cross- examination of DW.2, at that stage, the plaintiff filed two applications i.e., I.A. No.19 under Section 151 of the Code of Civil Procedure to reopen the case for cross-examination of DW.2 and I.A. No.20 under Order 16 Rules 1 and 2 read with Section 151 of Code of Civil Procedure to permit her to examine the witnesses mentioned therein and contended that the said witnesses are necessary and proper parties to establish her case. The said applications were resisted by the defendants by filing objections. The trial Court considering applications and objections, by the impugned order dated 29.11.2018 rejected the applications on cost of Rs.500/-. Hence, the present writ petitions are filed.
3. I have heard the learned counsel appearing for the parties to the lis.
4. Sri. Rajagopala Naidu, learned counsel appearing for the petitioner/plaintiff contended that the witnesses sought to be examined under I.A. No.20 are necessary and proper parties to prove the plaintiff’s case. Though the trial Court provided two opportunities, due to unavoidable circumstances she could not avail the aid opportunities. Therefore, the present applications are filed and sought to allow the writ petitions.
5. Per contra, Sri. Sudhakar .V, learned counsel appearing for respondent Nos.1 and 2 sought to justify the impugned order passed by the trial Court and contended that inspite of sufficient opportunities given, by allowing earlier applications filed by the very plaintiff on 06.07.2018 and 10.08.2017, the petitioner failed to examine the witnesses mentioned therein and present applications are filed only to protract the proceedings and are liable to be rejected. Therefore, he sought to dismiss the writ petitions.
6. Having heard the learned counsel appearing for the parties, the suit filed by the plaintiff for permanent injunction in respect of suit schedule property is not in dispute. Though opportunity was given to the petitioner, she has not utilized the same. If one more opportunity is granted as a last chance to the petitioner subject to payment of cost, no prejudice will be caused to the defendants. The civil rights of the parties in respect of immovable properties should not be deprived on technicalities.
7. Taking into consideration the rights of the parties involved in respect of the immovable property, an opportunity has to be given to the plaintiff to cross-examine the witnesses on the next date of hearing i.e., on 26.03.2019 and it is the responsibility of the petitioner to ensure the presence of the witnesses without intervention of the Court. If, on that day, the plaintiff failed to examine the witnesses, the trial Court shall proceed in accordance with law.
8. In view of the aforesaid reasons, the writ petitions are allowed. Impugned order passed by the trial Court dated 29.11.2018 on I.A. Nos.19 and 20 made in O.S. No.4646/2012 is hereby quashed. I.A. No.19 filed under Section 151 of Code of Civil Procedure to reopen the case for cross-examination of DW.2 and I.A. No.20 filed under Order 16 Rules 1 and 2 read with Section 151 of Code of Civil Procedure to permit the plaintiff to examine the witnesses mentioned therein are hereby allowed, subject to payment of cost of Rs.5,000/- payable by the plaintiff to the defendants and plaintiff shall not seek any further adjournments on 26.03.2019 and to ensure the presence of the witnesses mentioned in the application, failing which, the trial Court shall proceed the case on merits in accordance with law.
9. Taking into consideration the suit was filed in the year 2012 and we are in 2019. The trial Court is directed to expedite the suit itself subject to co-operation of both the parties.
Sd/- JUDGE MBM