IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION Nos.31267-31268 OF 2016(GM-CPC) Between:
1. Sri. K.M.Basavaradhya, Aged about 66 years, Adopted son of R.N.Mallikarjunaiah @ R.N.Mallikarjuna Aradhya, R/at No.3, old No.60/1, 4th Main, 5th Cross, Chamarajpet, Bengaluru-560 018.
2. Smt. C.M.Nagarathna @ Nagarathnamma, Aged about 60 years, W/o K.M.Basavaradhya, R/at No.3, old No.60/1, 4th Main, 5th Cross, Chamarajpet, Bengaluru-560 018.
3. Sri. K.B.Girisha, Aged about 46 years, S/o. Basavaradhya, R/at No.3, old No.60/1, 4th Main, 5th Cross, Chamarajpet, Bengaluru-560 018.
4. Sri. K.B. Guruprasad, Aged about 44 years, S/o K.M. Basavaradhya, R/at No.3, old No.60/1, 4th Main, 5th Cross, Chamarajpet, Bengaluru-560 018.
5. Sri. K.B.Rajashekar, Aged about 42 years, S/o. K.M. Basavaraadhya, R/at No.3, old No.60/1, 4th Main, 5th Cross, Chamarajpet, Bengaluru-560 018.
(By Sri.V.B. Shiva Kumar, Advocate) AND:
1. Smt. Gangamma, W/o. Late K.P.Mallikarjunaiah, Since deceased by LR’s 2. Smt. M. Neelambika, Aged about 50 years, W/o. S.V.Nadesh, R/at No.435, AMS layout, 3rd Cross, vidyaranyapura, Bengaluru-560 050.
3. Smt. Umadevi, Aged about 47 years, W/o. K.N.Basavaradya, R/at No.1189/C, 1st Floor, 14th Cross, M.C.Layout, Bengaluru-560 040.
4. Sri. Savadappa, Aged about 45 years, S/o. Late K.P.Mallikarjunaiah, R/at No.47, A.D.Halli, Magadi Main Road, Bengaluru-560 079.
... Petitioners 5. Smt. K.M.Soubhagya, Aged about 43 years, W/o. T.S. Davanth Aradya, No.54, 9th ‘B’ Cross, 1st Floor, A.D.Halli, Magadi Main road, Bengaluru-560 079.
6. Sri.K.M.Sachidanandamurthy, Aged about 42 years, S/o. Late K.P.Mallikarjunaiah, R/at No.47, A.D.Halli, Magadi Main road, Bengaluru-560 079.
7. Sri. K.M.Rudramuthy, Aged about 40 years, S/o. Late K.P.Mallikarjunaiah, R/at No.1188, 1st Floor, 1st Main, 3rd Cross, Vijayanagar, Bengaluru-560 040.
8. Sri. K.M.Hemalatha, Aged about 33 years, W/o. B.R.Hullapaswamy, R/at No. 315/7, “Roopashree Nilaya”, Behind K.V.V. High School, Subbanna Garden, Vijayanagar, Bengaluru-560 040.
(By Sri. K.V.Sathish and R.C.Prakash Kumar Advocates for R2, 4, 6 and R8;
R9 dispensed with;
R1- Dead vide order dated 07.03.2019; R3 and R5 - Deleted) ... Respondents These writ petitions are filed under Article 227 of the Constitution of India, praying to quash the order on I.A. Under Order VII Rule 14 of CPC., I.A. under Order XVIII Rule 17 read with Section 151 of CPC passed by the Court of XLI Additional City Civil Judge at Bengaluru dated 04.11.2015 in O.S.No.3151/2004 at Annexure-A.
These writ petitions coming on for Orders this day, the court made the following.
ORDER Petitioners being the defendants in a declaratory suit filed by the respondents herein in O.S.No.3151/2004 are knocking at the doors of Writ Court for assailing the order dated 04.11.2015, a copy whereof is at Annexure-A whereby, the learned 51st Additional City Civil Judge, Bengaluru, having favoured respondent-plaintiffs’ applications has reopened the case for production of additional documents under Order VII Rule 14(3) of CPC, 1908 and has also permitted them to further cross-examine the defendant witnesses 3, 4 & 5. Respondents having entered appearance through their counsel, resist the writ petitions.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, this Court grants indulgence in the matter in part for the following reasons:
a) the impugned order to the extent it allows the application filed under Order VII Rule 14(3) and thereby grants leave for production of additional documents cannot be faltered, since the same was not much opposed by the petitioners even in the Court below; in view of this, it is open to the plaintiffs to recall their witness for the marking of the subject documents now sought to be produced; though this part of the order is not challenged by the plaintiffs, justice of the case requires this kind of relief being granted to them; and, b) the impugned order to the extent it recalls the defendant witnesses 3, 4 & 5 for further cross-examination is not sustainable since these witnesses are not the attesting witnesses to the subject documents in question but are only their children/relatives; they have already stated about the signatures of the attesting witnesses and no purpose will be served by recalling them to the witness box for further cross- examination; this aspect having not been duly considered by the Court below; there is an error apparent on the face of the record warranting indulgence of this Court for setting aside the likely hardship at naught.
In the above circumstances, these writ petitions are partly allowed to the extent mentioned above, there is no need for calling defendant witnesses i.e., DWs.3, 4 & 5 for further cross examination; the rest of the impugned order is left intact.
No costs.
Since suit is of the year 2004, the learned trial judge is requested to try & dispose off the same expeditiously.
Sd/- JUDGE ag