IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS.8378-8379/2019 (GM-CPC) BETWEEN:
1. S.SUPRITHA, AGED ABOUT 25 YEARS, D/O C.R.SUBRAMANYA, R/AT NO.501, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076.
2. S.SURAJ, AGED ABOUT 17 YEARS, S/O C.R.SUBRAMANYA, R/AT NO.501, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076, SINCE MINOR, REPRESENTED BY HIS NEXT FRIEND S.SUPRITHA.
(BY SRI. N MANOHAR, ADVOCATE) AND:
1. M.K.SHYJITH, AGED ABOUT 40 YEARS, S/O M.V.KUTTAPPAN, NO.202, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076.
2.SMT RADHI PRIYA, AGED ABOUT 40 YEARS, W/O SHYJITH M K, NO.202, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076.
3. J.S.MANJUNATH, AGED ABOUT 51 YEARS, ... PETITIONERS S/O LATE SURYANARAYANA RAO, NO.3, 21ST AVENUE, NMPT COLONY, PANNUBUR, MANGALORE - 575 010.
4.BEKAL R SANDEEP, AGED ABOUT 38 YEARS, S/O B.K.RAJAGOPAL, NO.205, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076.
5. JAMES SERRAO, AGED ABOUT 37 YEARS, S/O PATRICK SERRAO, NO.402, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076.
6. JENNIFER SERRAO, AGED ABOUT 36 YEARS, W/O JAMES SERRAO, NO.402, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076.
7. VENKATARAJA A, AGED ABOUT 49 YEARS S/O K.KESHAVA BHAT, NO.404, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076.
8. PRASHANTHI A, AGED ABOUT 38 YEARS, W/O VENKATARAJA.A, NO.404, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076.
9. C.R.SUBRAMANYA, AGEDA BOUT 56 YEARS, S/O LATE C.RAJAGOPAL RAO, NO.501, CRR RESIDENCY, ARAKERE, B.G.ROAD, BANGALORE - 560 076. ... RESPONDENTS (BY SRI.S.A.SAMI, ADVOCATE FOR R1, 2 & 5 TO 8;
R3(J), R9(C) SERVED; NOTICE TO R4 DISPENSED WITH VIDE ORDER DATED 16.08.2019 ) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 06.12.2018 REJECTED THE APPLICATION IA 17 AND 18 FILED U/O 151 OF CPC IN O.S.NO.1477/2011 ON THE FILE OF THE CITY CIVIL JUDGE (CCH44), BANGALORE VIDE ANNEXURE-L AND ALSO DIRECT THE COURT BELOW TO ALLOW THE SAID APPLICATIONS BY RECALLING THE ORDER DATED 05.09.2018 IN ACCORDANCE WITH LAW AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioners being the plaintiffs in a partition and declaration suit in O.S.No.1477/2011 are invoking the writ jurisdiction of this Court for assailing the order dated 06.12.2018 made by the learned XLIII Addl. City Civil Judge, Bengaluru at Annexure-L, whereby their applications in I.A.No.17 & 18, filed under Order XVIII Rule 17 and u/s. 151 of CPC, 1908, thereby refusing to reopen the case for cross-examination of the subject witness. The respondents having entered caveat through their counsel resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that the Court below ought to have favoured the subject applications for the following reasons:
(a) the rejection of subject applications virtually renders the evidence tendered by the plaintiffs side redundant since the concerned witness will not be subjected to cross-examination at all; this does not augur well for the due adjudication of the case;
(b) whatever lapse attributable to the plaintiffs side could have been remedied by awarding costs and imposing condition which the justice of the case justifies; this having not being done, there is error apparent on the face of the record; and, (c) the subject applications are to be treated as procedural in nature and that the procedure is a hand- maid of justice, the procedure should not defeat the justice itself; no prejudice would be caused to the other side if the applications are allowed.
In the above circumstances, the writ petition is favoured; the impugned order is set at naught; subject applications are allowed; petitioners shall keep present their witness PW-2 for cross examination, subject to payment of a cost of Rs.1,000/- each to the respondent nos. 1, 2 & 5 to 8 within one month or on the next date of hearing, whichever is later, failing which the order now quashed shall stand resurrected.
Sd/- JUDGE cbc