IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOS.11538 - 11539 OF 2019 (GM-CPC) BETWEEN:
SRI.KURLILINGAPPA NO.1, ‘KURILINGAPPA GARDEN’ JAGAJYOTHI NAGAR PANCHASHEELA NAGAR MOODALPALYA BENGALURU – 560 078.
SINCE DEAD BY HIS LRS. SRI.K.SIDDARAJ ALIAS RAJA S/O LATE KURILINGAPPA AGED ABOUT YEARS NO.1, ‘KURILINGAPPA GARDEN’ JAGAJYOTHI NAGAR PANCHASHEELA NAGAR MOODALPALYA BENGALURU – 560 078.
(BY SRI P.D.SURANA, ADV.,) AND:
1. SRI.BHATHYAPPA S/O LATE C.HANUMANTHAPPA AGED ABOUT 39 YEARS RESIDNIG AT NO.10 1ST MAIN ROAD, 2ND CROSS ... PETITIONER MARENAHALLI, VIJAYA NAGAR BANGALORE – 560 040.
2. SRI.ANJANAPPA S/O LATE C.HANUMANTHAPPA AGED ABOUT 42 YEARS RESIDING AT NO.44, 9TH CROSS BYRAVESHWARA NAGAR MOODALAPALYA BANGALORE – 560 079.
3. SMT. KAMALAMMA W/O LATE SUBRAMANI AGED ABOUT 32 YEARS RESIDING AT NO.50 AMRUTHAHALLI BELLARY ROAD BANGALORE – 560 092.
4. SMT. SHIVALAXMI W/O ASHWATHANARAYANA AGED ABOUT 30 YEARS RESIDING AT KARLAPURA PALYA BYALA POST, HESARAGHATTA HOBLI BENGALURU NORTH TALUK – 560 088.
5. SMT. PUSHPA W/O VISHWANATH AGED ABOUT 27 YEARS RESIDING AT NO.15 GANESHA LAYOUT NELAMANGALA BENGALURU RURAL DISTRICT – 562 123 NO.2 TO 5 ARE REPRESENTED BY THEIR GPA HOLDER MR.BHATHYAPPA 6. SRI. RAMANJANAPPA S/O LATE C.HANUMANTHAPPA AGED ABOUT 48 YEARS RESIDING AT NO.24, 1ST MAIN 2ND CROSS, MARENAHALLI VIJAYANAGAR BENGALURU – 560 040.
(BY SRI M.J.ALVA, ADV., FOR R1 TO R6) ***** …RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 16.01.2019 PRODUCED AT ANNEXURE – J MADE IN O.S.NO.3017/2009 PENDING ON THE FILE OF XXXIX ADDL. CITY CIVIL & SESSION JUDGE AT BANGALORE AND ETC., THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner filed the present writ petitions against the impugned order dated 16.01.2019 on I.A.Nos.15 and 16, made in O.S.No.3017/2009 passed by the XXXIX Additional City Civil and Sessions Judge at Bangalore, rejecting the applications filed to recall P.W.1 and permit to cross-examine him and also for reopening the case.
2. The respondents who are the plaintiffs before the trial Court filed the suit for declaration of title and for permanent injunction contending that the plaintiffs are the owners and are in possesion of the suit schedule property. The defendant - Kurilingappa has no manner of right, interest in the suit schedule property.
3. The defendant - Kurilingappa filed the written statement denying the plaint averments and contended that the vendor of the defendant purchased the property in the year 1963 and defendant - Kurilingappa purchased the property under the registered sale deed on 29.7.1968. Therefore, contended that suit is not maintainable.
4. When the matter was posted for arguments, at that stage, the legal representative of defendant- Kurilingappa i.e., defendant No.1(h) filed two applications i.e., I.A.No.15 filed under Order XVIII Rule 17 of C.P.C. to recall the order dated 3.11.2018 for further cross-examination of P.W.1 and I.A.No.16 filed under Section 151 of Code of Civil Procedure, to re-open the case and to cross-examine P.W.1, by contending that he could not attend the Court on 3.11.2018 as he was suffering from formation of stones in the kidney and he had high fever. The same was not known to his Advocate who represented him. Therefore, he sought permission to recall P.W.1 and to cross-examine him and also for reopening the case. The said applications were resisted by the plaintiffs by filing objections contending that the applications are filed only to protract the proceedings and harass the plaintiffs and sought for dismissal of the applications. The trial Court considering the applications and objections, by the impugned order dated 16.1.2019, dismissed both the applications. Hence, present writ petitions are filed.
5. I have heard the learned counsel for the parites to the lis.
6. Sri.P.D.Surana, learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the applications filed by the present petitioner for re-opening the case and to recall P.W.1 and permit him to cross-examine P.W.1 is errorenous and contrary to the materials on record. When the matter was posted for cross-examination on 3.11.2018, on that date, the petitioner was not able to attend the Court, as he was suffering from formation of stones in the kidney and he had high fever. The same has not been considered by the trial Court and proceeded to pass the impugned order. He further contended that considering the rights of the parties involved in the immovable properties, the trial Court ought to have given opportunity to the petitioner by imposing cost, but the same has not been done. Therefore, he sought to allow the writ petitions.
7. Sri.M.J.Alva, learned counsel for the respondents sought to justify the impugned order and contended that the suit filed in the year 2009 and the application for amendment filed in the year 2019. This shows the tactics played by the petitioner in dragging the proceedings by filing successive applications, which is not bonafide. Therefore, he sought for dismissal of the present petitions.
8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed the suit for declaration and permanent injunction in respect of the immovable properties. The same is disputed by the defendant-Kurilingappa, by filing written statement. It is also not in dispute that when the matter was posted for arguments, at that stage the applications came to be filed by legal representative of defendant - Kurilingappa. The trial Court proceeded to reject the applications mainly on the ground that defendant No.1(h) had filed 4th successive application for the same relief of recalling P.W.1 for further cross-examinatrion under Order 18 Rule 17 of C.P.C. on 01.02.2018 and the same was allowed and P.W.1 was recalled for the fourth time on 03.02.2018. Due to the failure on the part of defendant No.1(h) to cross-examine P.W.1 even on that day, the Court had taken the cross examination of P.W.1 as closed on 3.11.2018. Hence, further stated that the conduct of defendant No.1(h) clearly shows that he is not diligent in prosecuting the matter and he is dragging the matter by filing successive applications for recalling of PW-1, which is not permissible under law. On these grounds, the learned Judge rejected the applications.
9. The materials on record clearly depicts that, when the case was posted on 03.11.2018, the counsel for defendant No.1(h) nor defendant No.1(h) were present before the Court. Therefore, the Court proceeded to close the cross-examination of P.W.1 on the said date. In the present writ petitions, learned counsel for the petitioner has filed medical documents to show that the petitioner was suffering from formation of stones in kidney. But the said medical document was not produced before the trial Court. Taking into consideration all these grounds, this Court is of the view that an opportunity should be given to the present petitioner to cross-examine P.W.1 without seeking any further adjournment on the next date of hearing before the trial Court.
10. The rights of the parties invovled in respect of the immovable property cannot be decided on technicality. Ultimately, it is well settled that it must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. This Court is also aware of the dictum of the Hon’ble Supreme Court in the case Gayathri vs. M. Girish, reported in 2016(4) SCC 142, wherein repeated adjournments sought for was negated and Hon’ble Apex Court held that such litigant should not be encouraged. But in the present case, taking into consideration, the petitioner was suffering from formation of stones in kidney, he could not attend before the trial Court on 03.11.2018, an opportunity should be given to the petitioner to cross-examine P.W.1 on 03.04.2019 without fail, subject to payment of cost.
11. For the reasons stated above, the writ petitions are allowed. The impugned order dated 16.01.2019 passed by the XXXIX Additional City Civil and Sessoins Judge at Bangalore on I.A.No.15 filed under Order XVIII Rule 17 of C.P.C. and I.A.No.16 filed under Section 151 C.P.C. are hereby quashed. I.A. No.15 & 16 filed by the petitions are allowed subject to payment of cost of Rs.5,000/- payable by the present petitioner to the respondents /plaintiffs before the trial Court and subject to the condition that the present petitioner shall not seek any further adjournments and shall proceed to cross-examine P.W.1 on 03.04.2019.
It is made clear that if for any reason, the present petitioner failed to cross-examine P.W.1 on 03.04.2019, the learned Judge shall proceed with the case in accordance with law.
Sd/- JUDGE VMB