IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.48898-48899/2018 (GM-CPC) BETWEEN:
SRI. K. R. VEERANNA S/O SRI K. B. RUDRAPPA AGED ABOUT 49 YEARS, DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC ‘A’ BLOCK, DAVANAGERE-577001.
... PETITIONER (BY SRI A. MADHUSUDHANA RAO, ADVOCATE) AND:
1. SMT. A. N. INDUMATI, W/O A. NATARAJ, AGED ABOUT 65 YEARS, DOOR NO.9, 53-A CROSS, 16TH MAIN, III Y BLOCK, RAJAJINAGAR, BANGALORE-560016.
2. SMT. HEMALATHA S. WALI, W/O SHIVAYOGI S. WALI AGED ABOUT 61 YEARS, B-3, SFS APARTMENTS NEAR SHARAVATHI STOP YELAHANKA NEW TOWN BANGALORE-560064.
3. SMT. B. J. VIJAYA, W/O B. MALLAPPA AGED ABOUT 60 YEARS DOOR NO.9, 53-A CROSS 16TH MAIN, III Y BLOCK, RAJAJINAGAR, BANGALORE-560016.
4. SMT. K. R. NAGARATNA, W/O S. MUDDANNA, AGED ABOUT 51 YEARS, NO.2574, 7TH A MAIN 7TH CROSS, RPC LAYOUT VIJAYANAGAR VTH STAGE BANGALORE-560040.
5. SMT K R MALA W/O K A MANJUNATH AGED ABOUT 47 YEARS, DOOR NO.2718, GOWRI NILAYA II MAIN, II CROSS, MCC ‘B’ BLOCK, DAVANAGRE-577004.
6. SRI K R SHIVA KUMAR, S/O SRI K. B. RUDRAPPA AGED ABOUT 65 YEARS, 7. SRI K R PRAKASH S/O SRI K B RUDRAPPA AGED ABOUT 56 YEARS, 8. SRI K R THIPPESH S/O SRI K B RUDRAPPA AGED ABOUT 53 YEARS, 9. SRI K R PRABHU KUMAR S/O SRI K B RUDRAPPA AGED ABOUT 45 YEARS, RESPONDENT No.6 TO 9 R/AT DOOR NO.1990 PURANTAR HOSPITAL ROAD, MCC A BLOCK, DAVANAGERE-577001.
10. SMT. K. R. MADHU, W/O N V GIRISH AGED ABOUT 48 YEARS, 11. SMT. SUNANDA R. GUJJAR, W/O RAJANNA GUJJAR AGED ABOUT 50 YEARS, RESPONDENT No.6 TO 9 R/AT DOOR No.1/1, 34TH CROSS, JOGANAHALLI, IIND BLOCK, RAJAJI NAGAR, BANGALORE-560010.
... RESPONDENTS (BY SRI SUMAN HEGDE, ADVOCATE FOR R1, R3 & R4; SRI RAJASHEKAR B KANAVI, ADVOCATE FOR R2;
SRI PRAKASH M.H. ADVOCATE FOR R6 TO R9;
SRI P.M. SIDAMALLAPPA, ADVOCATE FOR R5, R10 & R11) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 23.10.2018 PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANAGERE ON I.A.NOS.22 AND 23 IN O.S.NO.26/2010 FOUND AT ANNEXURE-Y, AND ALLOW THIS WRIT PETITONS WITH COSTS.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R These writ petitions are filed by the 5th defendant against the order dated 23.10.2018 on I.A. Nos.22 and 23 made in O.S. No.26/2010 on the file of the II Addl. Senior Civil Judge & JMFC, Davangere rejecting the applications filed by him under Section 151 of the Code of Civil Procedure.
2. The Respondent Nos.1 to 5 who were the plaintiffs before the trial Court filed O.S. No.26/2010 against the defendants for partition and separate possession. The defendants filed the written statement denying the plaint averments.
3. During the pendency of the suit, the petitioner – 5th defendant filed an application – I.A. No.15 along with copy of the written statement. The trial Court by an order dated 12.8.2016 rejected the said application. Against the said order, the petitioner has filed Writ Petition No.44572/2016. This Court after hearing both the parties disposed of the said writ petition directing the trial Court to accept the written statement dated 18.7.2016 already filed by the petitioner in O.S. No.26/2010 and to dispose of the suit within six months from the date of receipt of copy of the order.
4. Subsequently, the 5th defendant filed two applications – I.A. Nos.22 and 23 under Section 151 of the Code of Civil Procedure to recall and re-open the case for cross-examination of PWs.1 to 6 by the 5th defendant, contending that the application filed by him for written statement came to be rejected and that was the subject matter of Writ Petition No.44572/2016 before this Court and ultimately, this Court permitted to file the written statement. In the meanwhile, PWs.1 to 6 were examined on behalf of the plaintiffs and posted for defendants’ evidence. Though the defendant No.5 sought time for cross-examination of PWs.1 to 6, the trial Court rejected the prayer and taken the cross-examination as nil. Therefore he sought to allow the applications. The said applications were resisted by the plaintiffs by filing objections. The trial Court considering the applications and the objections by the impugned order dated 23.10.2018 rejected the applications. Hence the present writ petitions are filed.
5. Sri A. Madhusudhana Rao, learned counsel for the petitioner – defendant No.5 contended that the trial Court erred in rejecting the applications filed by the 5th defendant to recall and re-open the case for cross- examination of PWs.1 to 6 by the defendant No.5 in view of the fact that earlier application – I.A. No.15 filed by the 5th defendant for permission to written statement came to be rejected and ultimately, this Court in Writ Petition No.44572/2016 permitted the 5th defendant to file the written statement only on 6.9.2018. He further contended that at the time of conducting the evidence of PW.2, the petitioner was present and sought to cross-examine PW.2 and the same was rejected as he has not filed the written statement. After this Court permitting the 5th defendant to file the written statement, the petitioner has filed these applications. If the petitioner is not permitted to cross- examine PW.1, the very purpose for which Writ Petition No.44572/2016 is allowed and permitted the petitioner to file the written statement would be a futile exercise. Therefore he sought to allow the writ petitions.
6. Sri Prakash M.H, learned advocate for Respondent Nos.6 to 9 – defendant Nos.2 to 6 support the case of the petitioner - 5th defendant.
7. Per contra, Sri Suman Hegde, learned counsel for Respondent Nos.1,3 and 4; Sri Rajashekar B. Kanavi, learned counsel for Respondent No.2 and Sri P.M. Siddamallappa, learned counsel for Respondent Nos.10 and 11 sought to justify the impugned order passed by the trial Court. They submit that while filing the applications, certain false allegations are made against the Court and such a litigant should not be encouraged and sought for dismissal of the writ petitions.
8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff Nos.1 to 5 filed the suit for partition and separate possession contending that they are entitled to share. The defendants filed the written statement and denied the plaint averments. The 5th defendant has not filed the written statement within time and subsequently filed application for written statement and the same came to be rejected. It was the subject matter of W.P. No.44572/2016 before this Court. This Court by an order dated 6.9.2018 allowed the writ petition and permitted the 5th defendant to file the written statement and directed the trial Court to accept the same and thereafter the present applications came to be filed.
9. The trial Court considering the applications proceeded to reject the present applications on the ground that on perusal of the order sheet and deposition, no where the 5th defendant or his counsel prayed time to adjourn the case and the 5th defendant has stated that the Court has rejected his prayer, which is contrary to the order sheet. If the 5th defendant has assigned the correct and cogent reason, the matter would be different. But, he has stated that the Court has rejected his prayer. As such, the reason assigned by the 5th defendant is against the court proceedings. Further, the matter is of the year 2010 and it was delayed for various reasons. Therefore the applications – I.A. Nos.22 and 23 were rejected.
10. At this stage, it is relevant to state that the party who comes to the Court should be due diligent and he should confine to the pleadings and the litigant has no business to blame the Court. If anybody files affidavit blaming the Court, prima facie it amounts to contempt and such person should not be permitted to conduct the case. At the same time, the Court should act like a mother. Certain omissions and commissions are always there in the system, that too in the pending litigations and the litigants, learned advocates and the Court should not go beyond their Lakshman rekha. The fact remains if the applications – I.A. Nos.22 and 23 are not allowed and rejected as done by the trial Court, the very purpose for which the writ petition No.44572/2016 is allowed permitting the present petitioner to file the written statement would be a futile exercise. Ultimately, Court is meant for doing substantial justice and not to reject the applications on technicalities.
11. Taking into consideration the matter is of the year 2010 and we are now in the year 2019 and this Court in the earlier writ petition i.e., W.P. No.44572/2016 directed the trial Court to accept the written statement filed by the petitioner – 5th defendant and to dispose of the suit within six months and further the suit filed is for partition and separate possession of the immovable property, this Court is of the considered opinion that an opportunity should be given to the petitioner – 5th defendant to cross- examine PWs.1 to 6.
For the reasons stated above, the writ petitions are allowed. The impugned order passed by the trial Court dated 23.10.2018 on I.A. Nos.22 & 23 made in O.S. No.26/2010 is hereby quashed. The applications – I.A. Nos.22 and 23 are hereby allowed subject to payment of costs of Rs.5,000/- (Rupees five thousand only) to the Advocates’ Welfare Fund within a period of two weeks.
The petitioner – 5th defendant shall appear before the trial Court on the next date of hearing i.e., 15th March 2019 or on any other date to be fixed by the learned Judge and he should proceed to cross-examine PWs.1 to 6 on the day-to- day basis and shall not seek for adjournment. Counsel for the plaintiffs shall ensure presence of all PWs.1 to 6 on all the dates before the trial Court.
Ordered accordingly.
Sd/-
JUDGE Gss/-