IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.33183/2017(GM-CPC) BETWEEN:
SRI. PAVAN, S/O C. B. SADASHIVAMURTHY, AGED 28 YEARS, R/A BASAVANAHALLI MAIN ROAD, CHIKKAMAGALURU-577101.
... PETITIONER (BY SRI SATHISH, ADVOCATE FOR SRI K. V. NARASIMHAN, ADVOCATE) AND:
SMT. RENUKAMANI, AGED 57 YEARS, R/A DAKSHAYINI NILAYA, BACKSIDE OF GENSHA SAW MILL, BASAVANAHALLI, CHIKKAMAGALURU-577101.
... RESPONDENT **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER AT ANNEXURE-E DATED 3.7.2017 PASSED ON I.A.4 IN O.S.137/2015 BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND CJM AT CHIKKMAGALUR TO THE EXTENT THAT RECALL OF PW1 FOR CROSS-EXAMINATION IS NOT PERMITTED.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The defendant filed the present writ petition against the order dated 3.7.2017 made in O.S. No.137/2015 on the file of the II Additional Senior Civil Judge, Chikkamagaluru allowing the application in part and not permitting the defendant for cross-examination of PW.1.
2. The plaintiff filed the suit for partition and separate possession of half share in the suit schedule properties and also for mesne profits under Order XX Rule 12 Code of Civil Procedure, contending that she is the legally wedded wife of the deceased Sadashivamurthy, who died on 11.8.2014; The defendant is the illegitimate son of the deceased Sadashivamurthy; The plaintiff’s husband acquired the suit schedule properties during his life time out of the amount contributed by the plaintiff and also out of his earnings; The deceased Sadashivamurthy was suffering from cancer and passed away; The plaintiff who is the legally wedded wife of Sadashivamurthy is entitled for the partition and separate possession of her half share in the suit schedule properties; Inspite of the demands, the defendant refused to effect partition contending that all the properties standing in his name and plaintiff is not entitled for any share and therefore the plaintiff filed the suit for partition.
3. The defendant filed the written statement and contended that plaintiff is not the legally wedded wife of Sadashivamurthy. The defendant admitted the death of his father and contended that the plaintiff is not entitled to any share and the suit filed by the plaintiff is not maintainable and sought for dismissal of the suit.
4. After completion of cross-examination, when the matter was posted for the defendant’s evidence, the defendant filed the present application - I.A. No.4 under Section 151 of Code of Civil Procedure to recall the plaintiff’s witnesses for cross-examination contending that PWs.1 and 2 have been examined on their behalf and PW.1 has been cross-examined and when PW.2 was in witness box, the counsel for the defendant has been to Manipal hospital for attending his brother who met with an accident and therefore PWs.1 and 2 have not been cross-examined.
5. The said application was resisted by the plaintiff contending that the application is not maintainable and liable to be dismissed. He further contended that the defendant has not filed affidavit alongwith the application and only filed memo of facts. Further, the defendant has filed the application only to protract the proceedings and he not made out any case to recall PW.1. PW.1 has already been cross-examined and therefore sought for dismissal of the application.
6. The trial Court considering the application and the objections by the impugned order allowed the application in part and permitted the defendant to cross-examine PW.2 with costs of Rs.500/-. Hence the present writ petition is filed to set aside the impugned order to the extent that recall of PW.1 for cross-examination is not permitted.
7. I have heard learned counsel for the parties to the lis.
8. Sri Satish for Sir K.V. Narasimhan, learned counsel for the petitioner has contended that the trial Court was not justified in rejecting the application for permission to cross- examine PW.1 and the same is contrary to the material on record. The trial Court ought to have given permission to the defendant to cross-examine PW.1 since the suit filed for partition and separate possession. The same has not been done by the trial Court. Therefore he sought to set aside the impugned order passed by the trial Court to the extent that recall of PW.1 for cross-examination is not permitted, by allowing the present writ petition.
9. Having heard learned counsel for the petitioner, it is an undisputed fact that the respondent who is the plaintiff before the trial Court filed the suit for partition and separate possession contending that she is the legally wedded wife of the deceased Sadashivamurthy, who died on 11.8.2014 and that the defendant who is the illegitimate son refused to effect partition. The defendant filed the written statement and contended that the plaintiff is not the wife of the deceased Sadashivamurthy and she is not entitled to any share.
10. The records also reveal that when the cross- examination of PW.1 was over, when PW.2 was in the witness box, counsel for the defendant had been to Manipal for attending his brother who met with an accident and was admitted in the hospital. Therefore the application is filed to recall the plaintiff’s witnesses. The said application was resisted by the plaintiff by filing objections. The trial Court considering the application and the objections recorded a specific finding that the Court framed the issues on 22.6.2015 and when the case was set down for defendant’s evidence, the present application was filed to recall plaintiff’s witnesses; PW.1 has already been fully cross- examined, but PW.2 is not subjected for cross-examination by the defendant’s side; The defendant wants to cross- examine the witnesses of the plaintiff. Therefore the application was allowed permitting the defendant to cross- examine PW.2 by imposing costs of Rs.500/-. The application filed by the defendant on 31.5.2017 to recall the plaintiffs’ witnesses for cross-examination is accompanied by memo of facts wherein it is stated that PWs.1 and 2 have been examined on their behalf and PW.1 has been cross-examined and when PW.2 was in the witness box, the defendant has been to Manipal hospital for attending his brother who met with an accident. Thus, memo of facts accompanying the application clearly indicates that the defendant has already cross-examined PW.1. Therefore question of recalling PW.1 who has been cross-examined fully does not arise. The trial Court was justified in passing the impugned order holding that PW.1 has already been fully cross-examined and permitting the defendant to cross-examine PW.2 on payment of costs of Rs.500/-. The petitioner has not made out any case to interfere with the impugned order in exercise of the powers under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE Gss/-