IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.47471 OF 2018 (GM-CPC) BETWEEN:
SRI. B. A. AHAMMED SON OF AMEER SAB AGED ABOUT 50 YEARS, RESIDING AT SHANTHI NAGAR BEHIND RAILWAY STATION UNION OFFICE STATION, TUMAKURU-572 102. ... PETITIONER (BY SRI. FAYAZ SAB B.G., ADV.) AND:
1. M/S. BTH LABORATORIES PVT. LTD., REPRESENTED BY ITS MANAGING DIRECTOR SRI VARGHESE CHACKO AGED ABOUT 61 YEARS, NO.994, 2ND MAIN, 4TH BLOCK RAJAJINAGAR BENGALURU-560 010.
2. MRS. SUSAN VARGHESE WIFE OF VARGHESE CHACKO AGED ABOUT 57 YEARS, DIRECTOR OF BTH LABORATORIES PVT LTD, NO.994, 2ND MAIN, 4TH BLOCK, RAJAJINAGAR BENGALURU-560 010. ... RESPONDENTS (BY SRI. B.S. MURALI, ADV. FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 10.10.2018 WHEREIN REJECTED THE I.A. FILED UNDER ORDER XVIII RULE 17 R/W SECTION 151 OF CPC, 1908, FILED FOR SEEKING PERMISSION TO TENDER CROSS EXAMINATION OF DW1 IN O.S.NO. 256/2012 ON THE FILE OF ADDL. CIVIL JUDGE AND JMFC AT RAMANAGARAM VIDE ANNEX-A.
THIS PETITION IS COMING ON FOR ‘ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner/defendant filed the present writ petition against the Order dated 10.10.2018 on I.A. under Order 18 Rule 17 of Code of Civil Procedure in O.S.No.256/2012 rejecting the application filed for reopening and recalling the DW-1 for cross examination.
2. The respondents/plaintiffs filed a suit in O.S.No.256/2012 for permanent injunction contending that the defendants have no manner of right, title and interest over the suit schedule property. The defendant filed written statement denying the plaint averments and contending that he is the owner in possession and enjoyment of the suit schedule property and sought for dismissal of the suit.
3. When the matter was posted for cross of DW1, he was not present before the Court. Hence, trial Court considered the cross examination of DW1 taken as nil and closed the evidence of DW1 and posted the matters for arguments. At that stage, the defendant filed an application under Order 18 Rule 17 CPC to recall DW1 to tender for his cross examination. In the affidavit accompanying application, he contended that he was suffering from ill health when the matter was posted for the cross examination, hence, he could not present before the Court on that particular date. The said application came to be resisted by the plaintiffs. The trial Court considering the same, passed the order on IA dated 10.10.2018 rejecting the same with cost of Rs.500/-. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri. Fayaz Sab B.G., learned counsel appearing for petitioner contended that the impugned order passed by the trial Court rejecting the application filed by the defendant under Order 18 Rule 17 of CPC to reopen the case for cross examination of DW1 is erroneous and contrary to the provisions of law and failed to exercise the inherent jurisdiction vested with the Court. Learned trial judge without exercising its discretionary power simply rejected the said application. Hence, sought to allow the writ petition.
6. Per contra, Sri. B.S.Murali, learned counsel appearing for respondent Nos.1 and 2 sought to justify the order. Though, the suit is filed in the year 2012 for perpetual injunction against the defendant and his men restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property, the defendant did not cooperate with the case and filed an IA under Order 18 Rule 17 of CPC only to drag on the proceedings and same was rejected by the trial Court. He would further contend that in the affidavit accompanying the application, he has stated that due to ill health, he could not appear before the Court when the matter was set down for his cross examination. But he did not produce single piece of document to prove his contention. As such, trial Court has rightly rejected the application filed by the defendant. Hence, he sought dismissal of the writ petition.
7. Having heard the learned counsel for both the parties, it is undisputed fact that the respondents have filed O.S.No.256/2012 in respect of the suit schedule property against the petitioner. The learned trial Judge ought to have provided one more opportunity to the petitioner to tender his cross examination as the suit is of the year 2012. The learned trial Judge proceeded to reject the said application only on the ground that he did not produce single document to prove that he was suffering from ill health when the matter was set down for the cross examination. The learned trial judge has passed a non speaking order and ought to have permitted the defendant to present before the trial Court to tender his cross examination.
8. For the reasons stated above, writ petition is allowed and order impugned dated 10.10.2018 on IA filed under order 18 Rule 17 of Code of Civil Procedure is hereby quashed. Application is allowed. The petitioner is permitted to appear before the trial Court subject to payment of cost of Rs.2,500/-on 23.03.2019 or any other date to be fixed by the trial judge.
Both the parties are hereby directed to cooperate with the case to dispose of the matter expeditiously.
Sd/-
JUDGE JS/-