IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17th DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.49765 OF 2018 (GM-CPC) BETWEEN:
SRI RAGHURAM PRASAD S/O LATE RAMAKRISHNA SHARMA AGED ABOUT 51 YEARS R/AT NO. 31, 3RD A CROSS SRI SATHYANARAYANA LAYOUT 2ND STAGE, J.C.NAGAR MAHALAKSHMIPURAM POST BANGALORE- 560 086 (BY SRI.VIJAYA KRISHNA BHAT, ADV.) AND:
… PETITIONER 1. SRI V NARAYANA PRASAD S/O LATE RAMAKRISHNA SHARMA AGED ABOUT 58 YEARS R/AT NO. 708, 8TH MAIN 2ND C CROSS, 3RD BLOCK, III STAGE WEST OF CHORD ROAD, BASAVESHWARANAGAR BANGALORE- 560 079 2. SRI V.SHAM PRASAD S/O LATE V RAMAKRISHNA SHARMA AGED ABOUT 58 YEARS R/AT NO. 708, 8TH MAIN ROAD 2ND C CROSS, 3RD BLOCK, III STAGE WEST OF CHORD ROAD, BASAVESHWARANAGAR BANGALORE- 560 079 3. SMT.SEETHALAKSHMI W/O DR.S.M.BHAT R/AT NEAR TALAP, KANNORE- 2 4. KUM.SWAPNA LAKSHMI D/O NARAYANA PRASAD AGED MAJOR 5. SRI KRISHNA BHARATH S/O NARAYANA PRASAD AGED MAJOR NO.4 AND 5 ARE RESIDING AT NO. 187-F, BHARATHNAGAR VISHWANEEDAM POST, MAGADI MAIN ROAD BENGALURU- 560 091 … RESPONDENTS (BY SRI.CHANDRANATH K ARIGA, ADV. FOR R-1 NOTICE TO R2 TO R5 IS DISPENSED WITH) THIS WRIT PETITION IS FILED AND PRAYING TO QUSH THE IMPUGNED ORDER DTD: 23.10.2018 PASSED BY THE CITY CIVIL JUDGE, BENGALURU IN O.S. NO. 8234/2003 AS PER ANNEXURE-J THEREBY REJECTING I.A. NO. 36 FILED UNDER SECTION 151 OF CPC AND CONSEQUENTLY ALLOW THE SAID APPLICATION AS PRAYED FOR AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.Vijaya Krishna Bhat, learned counsel for the petitioner. Sri Chandranath K Ariga, learned counsel for the respondent No.1.
2. Petition is admitted for hearing. With the consent of the learned counsel for the parties, matter is heard for final disposal.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 23.10.2018 by which the application filed by the petitioner under Section 151 of the Civil Procedure Code, 1908 (Hereinafter referred to as the ‘Code’ for short) seeking to recall the order dated 19.09.2018 by which the evidence of the defendant was closed, has been rejected.
4. Learned counsel for the petitioner submitted that the aforesaid application was filed with a view to lead evidence with regard to the will and the burden was on the petitioner to prove the will and in case the order dated 19.09.2018 is allowed to stand, the petitioner will be deprived of an opportunity to have a fair trial. It is further submitted by learned counsel for the petitioner that he shall be granted one opportunity to adduce evidence.
5. On the other hand, learned counsel for the respondents has not opposed the prayer and has submitted that petitioner be put on terms.
6. In view of aforesaid submissions and with a view to afford an opportunity of fair trial to the petitioner, the impugned order dated 23.10.2018 is hereby quashed and set-aside. The trial Court is directed to fix a date for production of the witnesses of the petitioner. Needless to state that on the aforesaid date, the petitioner shall produce his witnesses and file their examination-in-chief in the form of affidavits. The aforesaid witnesses shall be cross-examined by the respondents on day-today basis till the same is concluded. It is made clear that in case the petitioner fail to produce witnesses, no further opportunity shall be granted and his right to adduce evidence shall stand closed. Accordingly, writ petition is disposed of.
Sd/- JUDGE brn