IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS.45479-480 OF 2018 (GM-CPC) BETWEEN:
SRI P.SANJAYKUMAR, S/O SRI. U.POOLCHAND, AGED ABOUT 29 YEARS, BUSINESSMAN, R/A OLD HOSPITAL ROAD, MULBAGAL TOWN, KOLAR DISTRICT, PIN: 563 131. ... PETITIONER (BY SRI. PAPI REDDY G, ADVOCATE) AND:
MR. S.A.REHAMAN, S/O LATE MR. S.A.KAREEM SAB, AGED ABOUT 60 YEARS, AGRICULTURIST/BUSINESSMAN, C/O. RR ENTERPRISES, OPPOSITE TO RMC YARD, MALLANAYAKANAHALLI ROAD, MULBALGAL TOWN, KOLAR DISTRICT, PIN: 563 131. ... RESPONDENT (RESPONDENT SERVED & UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 11.09.2018 PASSED BY THE COURT OF ADDITIONAL CIVIL JUDGE AND JMFC, MULBAGAL ON I.A.NO.XXIV AND XXV IN O.S.NO.285 OF 2013 VIDE ANNEXURE- F; AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a declaration suit in O.S.No.285/2013 is invoking the writ jurisdiction of this Court for assailing the order dated 11.09.2018, a copy whereof is at Annexure-F, whereby his application filed under Order XVIII Rule 17 for re-opening of the case for facilitating further cross-examination of the Court Commissioner C.W.1 has been rejected. After service of notice, the contesting respondent having entered appearance through his counsel resists the Writ Petition.
2. Having heard the learned counsel for the petitioner and having perused the Petition Papers, this Court reluctantly grants indulgence in the matter for the reasons stated in the affidavits that accompany the subject application, not withstanding the disinclination of the learned trial Judge, as a final chance and on payment of costs.
3. When once the Court Commissioner is cross-examined at length as C.W.1, no further cross-examination ordinarily can be permitted save in exceptional circumstances, which the learned counsel for the petitioner now points out; he further submits that if the Commissioner is further cross- examined, no prejudice would be caused to the other side and conversely if not a huge prejudice may be caused to the plaintiff. There is some force in his submission.
In the above circumstances, these Writ Petitions succeed; the impugned order is set at naught; the subject application having been favoured, the case having been re- opened, petitioner is permitted to further cross-examine C.W.1 on the next date of hearing or within one month from today whichever is later on payment of cost of Rs.10,000/- payable to the respondent, failing which the impugned order now quashed shall stands resurrected.
All other contentions of the parties are kept open.
Sd/- JUDGE DS