IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.38910 OF 2016 (GM-CPC) AND WRIT PETITION No.38911 OF 2016 (GM-CPC) BETWEEN:
1. SRI H HANUMAIAH S/O CHIKKATAYAPPA AGED ABOUT 58 YEARS 2. SMT KANTHAMMA D/O H HANUMAIAH W/O NARAYANASWAMI AGED ABOUT 33 YEARS DODDACHEEMANAHALLI VILLAGE DEVANAHALLI TALUK 3. SMT MUNIRATHNA D/O H HANUMAIAH W/O LINGARAJU AGED ABOUT 30 YEARS 4. SMT LAKSHMI D/O H HANUMAIAH W/O NAGESH AGED ABOUT 27 YEARS NO.218, GOWDANAPALYA SUBRAMANYAPURA POST BANGALORE-61 5. MR MOHAN H S/O H HANUMAIAH AGED ABOUT 25 YEARS 6. SMT NAGAVENI D/O H HANUMAIAH W/O KRISHNAPPA AGED ABOUT 22 YEARS BILEGUMBA VILLAGE RAMANAGARA TALUK AND DISTRICT-571 511.
7. SMT SHASHIKALA D/O H HANUMAIAH W/O KRISHNAPPA AGED ABOUT 20 YEARS THIMMAIAH GARDEN FIRST CROSS, R T NAGAR BANGALORE-32 PETITIONER NOS.1, 3 AND 5 ARE RESIDING AT VEERANNANAPALYA ARABIC COLLEGE POST BANGALORE – 45.
8. K T KRISHNAPPA S/O THIMMAIAH AGED ABOUT 61 YEARS R/A NO.65/278/449 MARUTHINAGARA KOTHIHOSAHALLI VILLAGE KODIGEHALLI VILLAGE PANCHAYATH YELAHANKA HOBLI BANGALORE NORTH TALUK (BY SRI MANU B.P., ADVOCATE) AND:
1. SMT. ANUSUYAMMA W/O LATE T SEENAPPA @ CHINNAIAH AGED ABOUT 50 YEARS 2. SRI LAKSHMINARAYANA S/O LATE T SEENAPPA @ CHINNAIAH AGED ABOUT 28 YEARS 3. SRI SUBRAMANI S/O LATE T SEENAPPA @ CHINNAIAH AGED ABOUT 21 YEARS ALL ARE R/AT NO.65/278/449 MARUTHINAGARA KOTHIHOSAHALLI VILLAGE KODIGEHALLI VILLAGE PANCHAYATH … PETITIONERS YELAHANKA HOBLI BANGALORE NORTH TALUK BANGALORE – 45 … RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:21.6.2016 PASSED IN I.A's NO.3/2015 & 4/2015 FILED UNDER ORDER 18 RULE 17 OF CPC AND SECTION 151 OF CPC IN O.S.NO.2963/2007 ON THE FILE OF THE HON'BLE COURT OF XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE(CCH-7) AT BANGALORE VIDE ANNEXURE-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the plaintiffs in a partition suit in O.S.No.2963/2007 are invoking the writ jurisdiction of this Court for assailing the order dated 21.06.2016, a copy whereof is at Annexure – A, made by the learned XXII Addition City Civil & Sessions Judge, Bengaluru, whereby their applications in I.A.Nos.3/15 & 4/2015 filed under Section 151 and under Order XVIII Rule 17 read with Section 151 of CPC respectively for reopening the case for the purpose of further cross-examination of DW-2 have been rejected. After service of notice, the respondent-defendants having entered appearance through their Counsel resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, the relief needs to be granted to the petitioners, of course, subject to cost and condition, because:
a) the suit is for a decree of partition & separate possession of the subject properties; the DW-2 although was examined for a period of two years or so, his evidence was closed on 18.09.2015, and the petitioners had filed the subject applications on 04.11.2015 i.e. little more than a month, thereafter; thus there is no delay or latches;
b) the rejection of subject applications virtually amounts to preventing the party from leading whatever evidence he wants to, in a hotly contested partition suit; all parties are related to each other; justice of the case requires that the subject applications be allowed;
c) the cross-examination has been dragged on by the petitioners side, is true; however, that cannot be a ground for rejecting their applications for further cross- examination, subject to cost and condition, which justice of the case demands.
In the above circumstances, the writ petitions succeed; the impugned order is set at naught; petitioners’ subject applications are allowed and they are permitted to conduct further cross-examination of DW-2 on the next date of hearing on payment of a cost of Rs.1,500/- to each of the respondents, failing which, the order now quashed, shall stand resurrected, and the petitioners shall not be permitted to further cross-examine the said witness.
Sd/- JUDGE KTY