IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.Nos.42629-42630 OF 2014 (GM-CPC) BETWEEN :
Smt. Sarojamma Rangaiah, W/o. late Rangaiah, Aged about 56 years, R/at No.1566, 4th Cross, Ashoka Puram, Chamaraja Mohalla, Mysore. ... Petitioner (By Smt. Kavitha R. Reddy, Advocate for Sri. K. Varaprasad, Advocate) AND 1. Smt. Susheelamma, W/o late Chikkajavaraiah @ Koosappa, Aged about 67 years, R/at No.2135, CH-24, 1st Cross, Ashoka Puram, Mysuru – 570 001.
(Deleted as per Court order dated 10.07.2018) 2. Smt. Chikkaputtamma, D/o. Late Chikkajavaraiah @ Koosappa, Aged about 70 years, R/at No.2135, CH-24, 1st Cross, Ashoka Puram, Mysuru-570001.
3. Sri. Narayana Swamy, S/o Chikkaputtamma, Aged about 45 years, R/at No.2135, CH-24, 1st Cross, Ashoka Puram, Mysuru-570001.
4. Sri. M.Manchanna, S/o. Manchanna, Aged about 52 years, R/o No.3605, 2nd Cross, Eranagere, Mysore-570001.
5. Smt. Rachamma, W/o. H.Rangaiah, Aged about 80 years, R/o No.149, Caveri ‘D’ Block, K.S.R.P. Police Quarters, Koramangala, Bengaluru-34.
6. Sri. R.Rangaswamy, S/o. H.Rangaiah, Aged about 63 years R/o No.149, Caveri ‘D’ Block, K.S.R.P. Police Quarters, Koramangala, Bengaluru-34.
7. Sri. R.Siddaraju, S/o. H.Rangaiah, Since deceased, by his L.Rs, 7a. Smt. Jayamma, W/o. late Siddaraju, Aged about 60 years, R/o No.149, Caveri ‘D’ Block, K.S.R.P. Police Quarters, Koramangala, Bengaluru-34.
7b. Smt. Savitha, D/o. late Siddaraju, Aged about 42 years, R/o No.149, Caveri ‘D’ Block, K.S.R.P. Police Quarters, Koramangala, Bengaluru-34.
7c. Sri. Padmanabha, S/o late Siddaraju, Aged about 35 years, R/o No.149, Caveri ‘D’ Block, K.S.R.P. Police Quarters, Koramangala, Bengaluru-34.
8. Sri. R.Huchaiah, S/o. R.Rangaiah, Aged about 57 years, R/o No.1552, CH-76, 4th Cross, Ashoka Puram, Mysore-570001.
9. Sri. R.Somashekar, S/o. H.Rangaiah, Aged about 51 years, R/o. No.1552, CH-76, 4th Cross, Ashoka Puram, Mysore-570001.
10. Sri. R.Narayana, S/o. H.Rangaiah, Aged about 45 years, R/o. No.1552, CH-76, 4th Cross, Ashoka Puram, Mysore-570001.
Respondent Nos.8 to 10 are Represented by their G.P.A Holder Sri. H.Vasu, S/o. Obaliah, Aged about 61 years, R/at 1st Cross, Ashoka Puram, Mysore-570001. ... Respondents (By Sri. Showri H.K & Akshay D.B., Advocates For R5 to R10; R2-served;
Notice to R3 & R4 is held sufficient; R1 is deleted) These writ petitions are filed under Articles 226 & 227 of the Constitution of India praying to set aside the order dated 20.08.2004 passed by the learned 1st Additional Senior Civil Judge, Mysore on I.A.Nos. 34 and 35 filed in O.S.No.1714/2007 vide Annexure-H and etc.
These writ petitions coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following:-
O R D E R The petitioner being the 1st defendant in respondents’ Civil Suit in O.S.No.1714/2007 for a decree of declaration and permanent injunction in respect of the subject property has invoked writ jurisdiction of this Court for assailing the common order dated 20.08.2014, a copy whereof is at Annexure-H made by the learned I Additional Senior Civil Judge and C.J.M., Mysuru, whereby her applications in I.As.XXXIV and XXXV have been rejected. The application in I.A.XXXIV was for recalling the order dated 06.12.2013, whereby her version of examination-in-chief was expunged for not making herself available for cross-examination; the application in I.A.XXXV was for re-opening the case, so that she can make herself for cross-examination and thereby validate her examination-in-chief.
2. Learned counsel for the petitioner submits that the impugned order denying innocuous relief to the petitioner breeds a lot of injustice and therefore, the same is liable to be set-aside; expunging of evidence of a party to the proceedings where stakes are high is ordinarily not to be resorted to; petitioner in her affidavit accompanying the application has specifically narrated the circumstances that resulted into her not making available for the cross-examination in the three consecutive hearings of the case and expunging of evidence is a serious matter. So arguing, she seeks allowing of the writ petition.
3. Learned counsel for the contesting respondents per contra submits that it is a settled legal position that where a party to the proceedings having been examined in chief does not avail himself for cross-examination without any justification, the trial Court is left with no liberty except striking down such evidence and to proceed with the matter. So arguing, the learned counsel seeks dismissal of the writ petitioner with costs.
4. I have heard the learned counsel for the petitioner and learned counsel appearing for the respondents. I have perused the papers.
5. The suit is for a decree of declaration and permanent injunction in respect of an agricultural land ad- measuring 4 acres & 3 guntas; the petitioner being 1st defendant has done examination-in-chief by way of affidavit;
for three consecutive hearings, she remained absent; in her applications supported by affidavits, she has explained the cause of absence satisfactorily; although, she did not produce any medical certificates. Striking off the evidence is a serious matter and ordinarily the same shall not be resorted to. As a matter of fact, since it denies the opportunity of meeting the very case of other side once for all, the Court below is not justified in making the impugned order, which yields injustice.
6. In the above circumstances, these writ petitions succeed; the impugned order is set at naught; petitioner’s applications in I.As.XXXIV and XXXV are allowed, subject to the condition that the petitioner shall make herself available for cross-examination on the next date of hearing without fail and further, on or before that date she shall pay a cost of Rs.2,000/- to respondent Nos.5 to 10 each, failing which, the impugned order shall stand revived.
Since, the suit is of the year 2007, the learned Trial Judge is requested to try and dispose of the same expeditiously.
Sd/- JUDGE NR/-