IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS. 22186-22187 OF 2017 (GM-CPC) BETWEEN:
SRI K U PADMESH S/O UDDEGOWDA, AGED ABOUT 53 YEARS, R/O KATRUMANE, JAKKANAHALLI POST-577101.
CHIKMAGALUR TALUK AND DISTRICT. ... PETITIONER (BY SRI. VIGHNESHWAR S SHASTRI, ADVOCATE) AND:
SMT B L SUBBAMMA W/O LATE THIPPEGOWDA, SINCE DECEASED BY HER LRS, 1. SMT.T.SRIDEVI, D/O LATE SRI THIPPEGOWDA, AGED ABOUT 63 YEARS, R/O RATHNAGIRI ROAD-577101 CHIKMAGALUR CITY 2. SMT.DEVAKI W/O DR.RUDRAPPA, AGED ABOUT 58 YEARS, R/O KEMPANAHALLI, NEAR MESCOM-577101 CHIKMAGALUR CITY.
3. SRI T.JAYAPRAKASH S/O LATE SRI THIPPE GOWDA, AGED ABOUT 57 YEARS, RETIRED INSPECTOR GENERAL OF POLICE R/O THALILHALLA VILLAGE, JAKKANAHALLI POST-577101 CHIKMAGALUR TALUK AND DIST 4. E.B. MALLESH S/O BYREGOWDA, AGED ABOUT 48 YEARS, R/O ILEHOLE VILLAGE, JOLDALL POST-577101 CHIKMAGALUR AND DISTRICT ... RESPONDENTS (BY SRI. P B AJITH, ADVOCATE FOR R1; NOTICE TO R2 & R3 IS DISPENSED WITH VIDE ORDER DATED 31.07.2019;
R4 SERVED AND UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27.04.2017 PASSED BY THE II ADDL. SECITON CIVIL JUDGE AND JMFC AT CHIKKAMANGALURU IN O.S.NO.92/2009 VIDE ANNEX-E AND CONSEQUENTLY PERMIT PETITIONER/PLAINTIFF TO RE-EXAMINED THE CW1 IN O.S.NO.92/2009 ON THE FILE OF II ADDL. SECTION CIVIL JUDGE AND JMFC AT CHIKKAMAGALURU.
THESE PETITIONS COMING ON FOR PRELIMINMARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner being the plaintiff in a suit for declaration & possession in O.S.No.92/2009 is knocking at the doors of Writ Court for assailing the order dated 27.04.2017, a copy whereof is at Annexure-E, whereby the learned II Addl. Civil Judge, Chikkamagaluru has rejected his request for further cross-examination of the Court Commissioner who was examined as CW-1. After service of notice, the 1st respondent-defendant entered appearance through his counsel resisting the writ petition, notice to respondents 2 & 3 having been dispensed with and respondent No.4 having chosen to remain unrepresented.
2. Having heard the learned counsel for the parties and having perused the petition papers, the impugned order is unsustainable inasmuch as the petitioner’s right to further cross examination cropped up in view of the changed circumstances namely the respondent’s application for leave to file objections to the Commissioner’s Report was later favoured pursuant to intervention of this Court in his W.P.No.58507/2016 (GM- CPC) on 25.11.2016, order copy whereof is placed on record by the learned counsel for the respondent himself.
3. However, justice of the case warrants that petitioner needs to pay a reasonable cost to the respondent because of some prejudice suffered by him, which would assuage whatever hardship he was put to.
4. In the above circumstances, this writ petition succeeds; the impugned order is set at naught; petitioner is permitted to further examine/cross examine CW-1 on the next date of hearing of the suit and on payment of a cost of Rs5,000/- to the 1st respondent on or before the same day, failing which the order now quashed shall stand resurrected.
All contentions of the parties are kept open.
Sd/- JUDGE Snb/