IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.8449 OF 2019 AND WRIT PETITION NO.10661 OF 2019 (GM-CPC) BETWEEN:
Sri.B.M.Kumar S/o late B.R.Manja Shetty Aged about 53 years R/o Lakshminiwas Pension Mohalla Chikkamagaluru – 577 101.
(By Sri.K.R.Lingaraju, Advocate) AND:
1. Smt.K.R.Roopa W/o late B.R.Manja Shetty Aged about 48 years Household Work R/o Lakshminiwas Pension Mohalla Chikkamagaluru – 577 101.
2. Smt.C.M.Jayanthi D/o late B.R.Manja Shetty Aged about 51 years R/o Gowrikaluve Chikkamagaluru.
...PETITIONER …RESPONDENTS (By Sri.Vigneshwar S.Shastri, Advocate for R1 R2 served through hand summons) These Writ Petitions are filed under Article 227 of the Constitution of India praying to call for records in O.S.No.8/2013 before the 1st Additional Senior Civil Judge, Chikkamagaluru and set aside the order on I.A.Nos.34 and 35 dated 22.01.2019 passed by the 1st Additional Senior Civil Judge, Chikkamagaluru, in O.S.No.8/2013 vide Annexure-A and direct the trial Court to re-open the stage of the case and permit the plaintiff No.1 to lead evidence of PW-1 and recall the P.W.1 cross examination and etc.
These Writ Petitions coming on for Orders, this day, the Court made the following:
ORDER Plaintiff No.1 filed these Writ Petitions against the order dated 22.01.2019 passed on I.A.Nos.34 and 35 in O.S.No.8/2013 dismissing the applications filed under Section 151 of CPC to reopen the case and to recall PW-1 for cross-examination, with cost of Rs.1,000/- each.
2. Plaintiffs filed P & SC No.5/2010. Later the said proceeding was converted to O.S.No.8/2013 for issuance of succession certificate. Subsequently, suits filed by the plaintiffs and defendants in O.S.Nos.8/2013, 96/2015, 65/2015 and 66/2015 were clubbed together and the trial Court by judgment and decree dated 29.06.2017 dismissed O.S.Nos.8/2013 and 96/2015 filed by the plaintiffs and decreed the suits in O.S.Nos.65/2015 and 66/2015 filed by the defendants and it was declared that the Will dated 14.03.2017 is the original, genuine and last Will of late B.R.Manja Shetty and plaintiffs, who are the defendants in O.S.No.65/2015 are restrained from trespassing into the suit schedule property and thereby disturbing the peaceful possession and enjoyment of the suit schedule property.
3. Being aggrieved by the same, appeals in R.A.Nos.41 to 44 of 2017 was preferred before the lower Appellate Court. The lower Appellate Court by considering the entire material on record allowed the appeals by judgment and decree dated 21.10.2017 and remanded the matter to the trial Court with a direction to provide an opportunity to the plaintiffs to adduce evidence with reference to their pleadings in O.S.Nos.66/2015 and 96/2015 and directed the trial Court to dispose of the matter as early as possible not later than six months. After remand, the present plaintiff has not contested the matter for more than 20 dates of hearing i.e., nearly more than five months and PW-1 continuously remained absent and the trial Court by observing the same and considering the fact that no satisfactory reasons are forthcoming for having remained absent, dismissed the applications – I.A.Nos.34 and 35. Hence, the present Writ Petitions are filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri.Lingaraju, learned counsel for petitioner contended that the impugned order passed by the trial Court rejecting I.A.Nos.34 and 35 to re-open and recall PW-1 is erroneous and contrary to material on record. When the matter was posted on 03.09.2018, since PW-1 was suffering from viral fever, he was not present before the Court for his cross-examination. The trial Court without considering the said fact, dismissed the applications by expunging the evidence of PW-1. He further submits that due to illness, he was not able to present before the Court and the same is unintentional and contended that the trial Court ought to have given an opportunity to the plaintiff to appear for his cross- examination. He would further contend that since the rights of the parties are involved in respect of properties in question, the trial Court ought to have given an opportunity to the petitioner herein to tender himself for cross-examination. He would further submits that PW-1 will proceed with the case without seeking any further adjournments.
6. Per contra, learned counsel for respondent No.1-defendant No.1 sought to justify the impugned order and contended that from 10.07.2018, till the rejection of the applications by the trial Court, the plaintiff remained absent for more than 20 dates of hearing without any reasons and no satisfactory reasons was assigned in the applications for having remained absent. The evidence of PW-1 is already ordered to be expunged since he fails to tender himself for cross-examination. He would further submits that in an earlier occasion, the very plaintiff filed W.P.No.8501/2017 and connected matters before this Court challenging the order dated 27.01.2017 passed by the trial Court on I.A.Nos.12, 13, 15 to 18 for recalling of PW-1 for further chief examination and for production of documents and for condonation of delay in filing the list of witnesses and for re-opening the case of plaintiffs. This Court dismissed the said Writ Petitions. Inspite of the same, the plaintiff has not mend his ways and has not come to the Court with clean hands and sought to dismiss the Writ Petitions.
7. Having heard the learned counsel for the parties, it is undisputed fact that the plaintiff initially filed P & S.C.No.5/2010 for issuance of succession certificate. Subsequently, the same was converted to O.S.No.8/2013. It is also not in dispute that on earlier occasion, the suits filed by the plaintiff came to be dismissed and suits filed by the defendants were decreed and the lower appellate Court on appeals filed by the plaintiffs in R.A.Nos.41 to 44 of 2017 by order dated 21.10.2017 allowed the appeals and remanded the matters to the trial Court with a direction to the learned Judge to provide an opportunity to the plaintiff to adduce evidence and directed the trial Court to dispose of the suit within six months. Inpiste of knowing all the things, the plaintiff has not tendered himself for cross examination. Therefore, the trial Court proceeded to expunge the evidence of PW-1 and posted the matters for final arguments. At that stage, I.A.Nos.34 and 35 were came to be filed for re-opening the case to lead evidence of PW-1 and to recall PW-1 for his cross-examination. It is the contention of the plaintiff that on last date of hearing i.e., on 03.09.2018, since he was suffering from viral fever, he was not present before the Court. Except saying that he was suffering from viral fever, he has not produced any documents to that effect. But the fact remains that the rights of the parties are involved in respect of immovable properties and in view of the submission made by the petitioner that he will not seek further adjournment and he will not file any application, an opportunity is required to be given to him as a last chance to tender himself for cross examination on the next date of hearing.
8. Taking into consideration the peculiar circumstances of the case, this Court is of the considered opinion that an opportunity is required to be given to plaintiff No.1 as a last chance to tender himself for cross examination on the next date of hearing and proceed further in accordance with law subject to payment of cost of Rs.5,000/- each to be payable to defendant No.1 on the next date of hearing before the trial Court.
9. Accordingly, Writ Petitions are allowed. The trial Court is directed to permit the petitioner herein to tender himself for cross examination. Further, the trial Court is directed to expedite the suit itself subject to cooperation of the parties to the lis.
Sd/- JUDGE Prs*