IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.53994 OF 2014 AND WRIT PETITION No.54231 OF 2014 (GM-CPC) BETWEEN:
Sri B. Shankar S/o Bettaiah, Aged about 42 years, R/at No.190, Sri Saimangala Enterprises, Hegganahalli Main Road, Vishwaneedam Post, Bengaluru-560 091. … Petitioner (By Sri.K.D. Vijaya Kumar, Advocate) AND:
1. Sri Shivanna S/o Late Subbanna, Aged about 57 years, R/at No.31, 13th ‘C’ Cross, Magadi Road, Dasarahalli, Bengaluru-560 079.
2. Sri Thimmaiah S/o Late Subbanna, Aged about 72 years, R/at Shivananda Nagar, Hegganahalli, Near Pataki Godown, Vishwaneedam Post, Yeshwanthapura Hobli, Bengaluru-560 091.
3. Smt. Doddamma @ Lalithamma W/o Thimmaiah, Aged about 65 years, 4. Kum. T. Gowramma S/o Thimmaiah, Aged about 38 years, 5. Kum. Savithramma D/o Thimmaiah, Aged about 36 years, R3 to R5 are residing at:
No.109, 5th Cross, Opp: Milk Diary, Peenya 2nd Stage, Hegganahalli Main Road, Friends Colony, Bengaluru-560 091. … Respondents These Writ Petitions are under Articles 226 & 227 of the Constitution of India praying to set aside the order dtd.03.09.2014 passed by the learned V Addl. City Civil Judge, Bengaluru, on I.A.Nos.12 & 13 in O.S.No.2809/2007, vide Annex-H and consequently allow the said application and etc.
These Writ Petitions coming on for Orders, this day, the Court made the following:
ORDER Petitioner being the second defendant in a declaratory suit filed by the respondents herein in O.S.No.2809/2007, is knocking at the doors of Writ Court for assailing the order dated 03.09.2014, a copy whereof is at Annexure-H whereby the learned Principal City Civil and Sessions Judge, Bengaluru has rejected their applications in I.A.Nos.12 & 13 seeking re-opening of the case for cross-examination of PWs.2 and 3.
2. After service of notice, the contesting respondents having entered appearance through their counsel, resist the writ petition. Notice to other respondents is dispensed with, since they do not have adverse stake in the matter.
3. Having heard the learned counsel for the parties and having perused the writ petition papers, this Court is inclined to grant indulgence in the matter inasmuch the prayer made in the subject applications is innocuous and that the same could have been granted subject to cost and conditions. This having not been adverted to, there is error apparent on the face of the record that warrants indulgence of this Court; contra would militate against the justice of the case.
In the above circumstances, the writ petition is favoured and the impugned order is set at naught; petitioner’s subject applications having been allowed, the petitioner is permitted to cross-examine PWs.2 and 3 subject to payment of cost of Rs.2,000/- to the respondent-plaintiff, within a period of one month or on the next date of hearing of the suit whichever is later, failing which, the order now quashed shall stand resurrected.
Further, the petitioner shall not seek any adjournment in the suit save with a cost of Rs.2,500/- on each occasion.
NR/-
Sd/- JUDGE