IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.8253/2019 (GM-CPC) AND WRIT PETITION NO. 9435/2019 (GM-CPC) BETWEEN:
Sri. Munegowda, 35 years, S/o. Doddaiah, Now r/a. Jalige Dhakale, Basavanapura Village, Kundana Hobli, Devanahalli Taluk, Bengaluru Rural District-562 110. ...Petitioner (By Sri. K.B. Chandrashekar Swamy, Advocate) AND:
1. Sri. Doddaiah, 63 years, S/o. Late. Muniyappa, 2. Smt. Rathnamma, 56 years, W/o. Doddiah, 3. Sri. Ashwath Narayana, 39 years, S/o. Doddaiah, The respondent Nos. 1 to 3 are residing at Bashettihalli Village, Ward No.2, Janatha Colony, Bashettihalli Post, Kasaba Hobli, Doddaballapura Taluk, Bangalore Rural District -561203.
4. Smt. Manjula, 31 years, D/o. Doddaiah, R/at. Shivapura Village, Kasaba Hobli, Doddaballapura Taluk, Bangalore Rural District- 561203.
Sri. M. Shivakumar, 50 years, S/o. Late Mahadevaiah, R/at No.109, H.V.R. Layout, 4th Main Road, Magadi Main Road, Bangalore -560 079. … Respondents These Writ Petitions are filed under Articles 226 and 227 of Constitution of India praying to quash the order dated 24.01.2019 vide Annexure –F passed by the Additional Civil Judge and JMFC, Devanahalli in O.S. No.308/2013 on the application filed by respondent No.5 under Order 18 Rule 17 read with Section 151 of CPC to recall the PW1 for cross examination and another application filed under Section 151 of CPC for reopen the case.
These writ petitions coming on for Preliminary Hearing this day, the Court made the following:
O R D E R The plaintiff filed the present writ petitions against the order dated 24.01.2019 on Interlocutory Applications filed by the defendant No.5 under Order XVIII Rule 17 read with Section 151 of Code of Civil Procedure along with the applications with cost of Rs.1500/- made in O.S.
No. 308/2013 on the file of the Additional Civil Judge & JMFC, Devanahalli.
2. The plaintiff filed the suit for partition and separate possession contending that the suit schedule properties are the joint family properties of plaintiff and defendants and there was no partition in the joint family. The defendant Nos.1 to 4 placed ex-parte. Defendant No.5 is the purchaser of the suit schedule property and filed written statement denying the averments made in the plaint and contended that he is a bonafide purchaser from defendant Nos. 1 to 4 and sought for dismissal of the suit. After completion of the evidence, when the matter was posted for arguments of the defendants, the defendant No.5 filed two applications under Order XVIII Rule 17 read with Section 151 of Code of Civil Procedure (hereinafter referred to as ‘CPC’ for brevity) to permit the defendant No.5 to cross examine PW1 and to reopen the case under Section 151 of CPC, contending that on earlier date of hearing when the Hon’ble Court fixed date of hearing for cross examination of PW-1, due to the ill-health of defendant No.5, he could not appear before the Court. Due to his absence, the cross examination has taken as Nil and posted the matter for arguments. Therefore, he sought to allow the said application. Trial Court considering the application and objections by the impugned order dated 24.01.2019 allowed the applications with cost of Rs.1,500/- and directed that defendant No.5 shall complete his cross examination of PW1 by next date of hearing without seeking any adjournment. Hence these writ petitions are filed.
3. I have heard the learned counsel for the petitioner 4. Sri. K.B. Chandrashekar Swamy, learned counsel for the petitioner, contended that the impugned order passed by the trial Court allowing the application which are filed by the plaintiff is erroneous, contrary to the materials placed on record. He would further contend that the defendant Nos. 1 to 4 have not filed written statement. The defendant No.5 though appeared through his counsel by filing Vakalath on 18.04.2013, could not adduced any evidence. When the matter was posted for arguments, at that stage, the applications came to be filed and are liable to be rejected. The suit was filed in 2013, the defendant No.5 has dragged the matter and filed written statement during the year 2014, even though the issues framed as long back as 16.02.2017. Further the petitioner has led the evidence only on 07.09.2017 and marked the document as Ex.P31 to 35 and the case was posted for cross examination of PW1 on 05.01.2018. The defendant No.5 sought time to cross examine the PW1 on 05.01.2018 and the trial Court was pleased to adjourn the above case. At the instance of the defendant No.5 it was adjourned to 12.04.2018 for cross examination of PW1. On 12.04.2018, he sought time to cross examine PW1. Hence, he contended that the applications filed by the petitioner at belated stage are liable to be rejected.
5. Having heard the learned counsel for the petitioner, it is not in dispute that the suit for partition filed by the plaintiff, contended that the suit schedule properties are the joint family properties. The same has been denied by the defendant No.5 who is the subsequent purchaser from defendant Nos.1 to 4. On completion of evidence when the matter was posted for arguments, at that stage the applications were filed. Though there was delay, the trial Court is of the opinion that the suit filed for partition, an opportunity has to be given to defendant No.5 to cross examine PW1 with certain conditions and accordingly allowed subject to cost of Rs. 1500/-. It is also not in dispute after the impugned order passed by the trial Court. Defendant No.5 cross examined PW1 in part and further case posted on 08.04.2019 virtually the order passed by the trial Court has been implemented. At this stage, this Court cannot interfere to stop further cross examination of PW1 by defendant No.5 in exercise of power under Article 227 of Constitution of India. Accordingly, writ petition is dismissed.
However, the suit is of the year 2013 and we are in the year 2019, the trial Court is directed to expedite the suit as early as possible, in accordance with law.
BVK Sd/- JUDGE