IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15th DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOS.55177-78 OF 2017(GM-CPC) AND WRIT PETITION NO.56189 OF 2017 BETWEEN:
1. SMT.PUTTALINGAMMA W/O.LATE C.KESHAVA MURTHY AGED ABOUT 72 YEARS R/AT. OLD NO.385, NEW NO.2226 11TH MAIN ROAD, JAYANAGAR 3RD BLOCK BENGALURU – 560 011.
2. SRI.MARUTHI @ HANUMANTHA S/O.LATE C.KESHAVA MURTHY AGED ABOUT 41 YEARS R/AT. OLD NO.385, NEW NO.2226 11TH MAIN ROAD, JAYANAGAR 3RD BLOCK BENGALURU – 560 011.
... PETITIONERS (BY SRI R.S.RAVI., ADVOCATE) AND:
1. SRI.CHANNAKRISHNA S/O.LATE C.KESHAVAMURTHY AGED ABOUT 61 YEARS R/AT.NO.Q-30, POLICE QUARTERS SIRSI CIRCLE, MYSURU ROAD BENGALURU – 560 018.
2. SMT.MALA W/O.SANGABASAVAIAH AGED ABOUT 45 YEARS C/O.OLD NO.385 NEW NO.2226, 11TH MAIN ROAD JAYANAGAR 3RD BLOCK BENGALURU – 560 011.
3. SMT.LAKSHMI W/O.KANTHARAJU AGED ABOUT 43 YEARS C/O.OLD NO.385 NEW NO.2226, 11TH MAIN ROAD JAYANAGAR 3RD BLOCK BENGALURU – 560 011.
4. SMT.NAGARATNA W/O.K.BORAIAH AGED ABOUT 57 YEARS R/AT.JAKKANAHALLI KAILANCHA HOBLI, BANNIKUPPE KSHETRA RAMANAGARA TALUK & DISR. – 570 001.
... RESPONDENTS (BY SMT.MANJULA M., ADV., FOR R1;
NOTICE TO R2 TO R4 ARE D/W. V/O.DTD.15.12.2017) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.22.11.2017 MADE IN O.S.NO.3600/2017 DURING THE COURSE OF DEPOSITION OF PW-1 ON THE FILE OF THE XV ACCJ, BANGALORE CITY, CITY CIVIL JUDGE, BENGALURU, (CCH- 3) VIDE ANNX-D.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:
O R D E R The plaintiff filed the present writ petitions against the order dated 22.11.2017 over-ruling the questions raised by the counsel for defendant Nos.1 & 2 and the order dated 24.11.2017 holding that the learned counsel representing defendant Nos.1 and 2 has not chosen to cross-examine PW-1 and hence, treated defendant Nos.1 and 2 have no further cross- examination against PW-1 and rejected the adjournment application.
2. The plaintiff filed the suit for half share in respect of the suit schedule property and that the gift deed dated 15.10.2004 executed by the plaintiff’s father – Late C.Keshavamurthy in favour of defendant No.2 is null and void and to grant permanent injunction restraining the defendants their heirs, agents, servants henchmen from alienating the suit schedule property to others contending that the plaintiff and defendants are members of joint family property and that there was no partition.
3. The defendants filed the written statement denying the plaint averments and contended that there was severance in the joint family and suit filed for partition is not maintainable and sought for dismissal of the suit.
4. When the matter was posted for cross- examination of PW-1, at that stage, when learned counsel for defendant Nos.1 and 2 questioned PW-1 with regard to Departmental Enquiry initiated against him, the said question was opposed and the same was over-ruled by the learned Judge and subsequently, the application filed under Order 17 Rule 1 read with Section 151 of Code of Civil Procedure, 1908 for adjournment, was also rejected and later, since learned counsel for the defendant Nos.1 and 2 has not proceeded for cross-examination, the trial Court treated that defendant Nos.1 and 2 have no further cross- examination against PW-1 and posted for cross- examination of PW-1 by defendant Nos.3, 4 and 5. Hence, these writ petitions are filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri.R.S.Ravi, learned counsel for the petitioners contended that when the counsel for defendant Nos.1 and 2 was put certain questions with regard to Departmental Enquiry initiated against PW-1 on the objection raised by the plaintiff, the same was over-
ruled and subsequently, application filed for adjournment was also rejected and ultimately, closed the evidence of PW-1 and treated the cross-examination of PW-1 by defendant Nos.1 and 2 as closed. The learned trial Judge ought to have permitted the counsel for defendant Nos.1 and 2 to raise questions, since the plaintiff had made several attempts to murder - Keshavamurthy and lodged several complaints with the police against the plaintiff during his life time. In that context, departmental enquiry was also conducted. The learned Judge ought to have allowed the cross- examination of PW-1. It is ultimately for the learned counsel for the petitioners / defendant Nos.1 and 2 to put questions with regard to the pleadings in the written statement. Therefore, it is further contended that merely because learned counsel was not allowed to cross-examine PW-1, the learned Judge ought to have permitted PW-1 to proceed further. The closing of the case by rejecting the application has resulted injustice to defendant Nos.1 and 2. Therefore, he sought to allow these petitions.
7. Per contra, Smt.Manjula.M, learned counsel for the respondent No.1 sought to justify the impugned order and contended in the written statement, there is no pleading with regard to the departmental enquiry. Therefore, when the defendants want to put several questions against PW-1, the same was posted for cross- examination of PW-1 by defendant Nos.3, 4 and 5. Therefore, the trial Court has rightly over-ruled the questions and was justified in closing the evidence of PW-1 by defendant Nos.1 and 2. Therefore, she sought for dismissal of the writ petitions.
8. Having heard the learned counsel for the parties, it is undisputed fact that the plaintiff has filed the suit for partition and separate possession in respect of suit schedule property contending that it is a joint family property of the plaintiff and defendants and that there was no partition. The same was disputed by defendant Nos.1 and 2 by filing written statement and specifically contended that was severance in the joint family property and the very suit filed by the plaintiff for partition is not maintainable. It is also not in dispute that during the course of cross-examination of PW-1, the counsel for defendant Nos.1 and 2 wanted to put question to PW-1 with regard to departmental enquiry. The said question was opposed and the same was over- ruled by the learned Judge. The learned trial Judge ought to have permitted the counsel for defendant Nos.1 and 2 to proceed further to cross-examine PW-1 with regard to the averments made in the plaint and in the written statement and ought to have allowed the application for adjournment. The same has not been done in the present case. The learned trial Judge failed to notice that the suit filed by the plaintiffs is in respect of immovable property. On technical grounds, the learned Judge cannot deprive the counsel for defendant Nos.1 and 2 for further cross-examination.
9. In view of the aforesaid reasons, the impugned order passed by the trial Court closing the case of PW-1 and rejecting the application are quashed. The counsel for defendant Nos.1 and 2 is permitted to proceed further cross-examination except asking the questions which was over-ruled by the learned Judge. The learned Judge is also directed to permit defendant Nos.1 and 2 to proceed for cross-examination of PW-1 with regard to the contentions taken in the written statement by defendant Nos.1 and 2.
With the above observations, writ petitions are disposed of.
Sd/- JUDGE VMB