IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS. 28245-28246 OF 2019 (GM-CPC) BETWEEN:
1. SRI G SIDDIAH, S/O LATE D GANGAIAH, AGED ABOUT 75 YEARS, 2. SRI B S UMASHANKAR, S/O SRI G SIDDAIAH, AGED ABOUT 45 YEARS, BOTH ARE RESIDING AT NO.118, BYRASANDRA, NEAR JAYANAGAR, 1ST E BLOCK, BANGALORE-560011.
(BY SRI. L S VENKATAKRISHNA, ADVOCATE) AND:
SMT GANGALAKSHAMMA W/O LATE BYLAPPA, AGED ABOUT 71 YEARS, RESIDING AT NO.1207, 4TH CROSS, L N COLONY, YESHWANTHPURA, BANGALORE-560022.
(BY SRI. PRAKASH K M, ADVOCATE) ... PETITIONERS ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER MADE U/S 151 CPC AND UNDER ORDER VIII RULE 1(A) CPC I.A.12 & 14 ANNEXURE-A DATED 20.06.2019 PASSED IN O.S.NO.12/2011 BY THE ADDITIONAL SENIOR CIVIL JUDGE, NELAMANGALA WITH COSTS OF THE WRIT PETITION.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the defendants in a partition suit in O.S.No.12/2011 are invoking the writ jurisdiction of this Court for assailing the order dated 20.06.2019, a copy whereof is at Annexure-A, whereby the learned Addl. Sr. Civil Judge, Nelamangala having rejected their two applications in I.A.Nos. 12 & 13 filed u/s.151 and Order VIII Rule 1A of CPC, 1908 has refused to reopen the case and to permit them to lead further evidence.
2. The Caveator having entered appearance through her counsel, resist the writ petitions.
3. Having heard the learned counsel for the parties and having perused the petition papers, this court is of the considered opinion that, reprieve needs to be granted to the petitioner for the following reasons:
(a) the suit is for partition & separate possession of the subject property which are of huge value; a Will is also pressed into service by the petitioners for resisting the suit; when a testament is in question, ordinarily greater latitude ought to have been shown by the Court below by permitting the petitioners to lead further evidence by reopening the case; this having not been done, there is an error apparent on the face of the record; and, (b) allowing of the subject applications on payment of reasonable cost would not have caused any prejudice to the respondent-plaintiff since she too will have an opportunity of cross examining the witnesses to be examined on behalf of the defendants; even this aspect of the matter has been lost sight of by the learned trial Judge; in any event the cost would be a balm to the legal injury, in case of this kind, subject to all just exceptions.
In the above circumstances, these writ petitions are favoured; the impugned order is set at naught; petitioners subject applications having been allowed, they are permitted to lead further evidence in the matter on payment of cost of Rs.10,000/- (Rupees ten thousand) only to the respondent-plaintiff on or before next date of hearing of the suit, failing which the order now quashed shall stand resurrected.
It is made clear that if the petitioners do not avail the last opportunity of leading their evidence on the next date of hearing, their right to lead any evidence will be forfeited.
Sd/- JUDGE Snb/