IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.30730/2019 & WRIT PETITION NO.31037/2019 (GM-CPC) Between:
Sri. Shivaram Babu Devadiga, S/o Babu Devadiga, Aged about 47 years, R/a, Sri Venkateshwara Condiments, Kote Gavdi Building, Court Road, Doddaballapur-561 203.
Bengaluru Rural District.
… Petitioner (By Sri. Sadanand Shastri, Advocate) And 1. Mrs. Malini V.Rao W/o Late B.K.Vidyaranya Rao, Aged about 65 years, Proprietrix M/s Tex X International, R/a, No.70, Birch Street, Eaglewood Cliffs, New Jersey – 07632 United States of America.
Represented by her GPA Holder Mrs. B.B.Uma Devi, D/o Late B.V.Bhaskar Rao, Residing at No.71, 4th Block (West), 8th ‘C’ Main Road, Jayanagar, Bengaluru – 560 011.
2. Mr. U.Viaya Kumar S/o Dr.U.Lakshminarayana Rao, Aged about 61 years, R/at Pravirs Paradise No.2, 1st Cross, Ganesha Block, Dinnur Main Road, R.T.Nagar, Bengaluru – 560 032.
3. Mrs. Geetha Rao W/o U.Viaya Kumar Aged about 59 years, R/at Pravirs Paradise No.2, 1st Cross, Ganesha Block, Dinnur Main Road, R.T.Nagar, Bengaluru – 560 032.
… Respondents This writ petition is filed under Article 227 of the Constitution of India praying to quash the order dated 28.06.2019, on I.A.No.13 & 14 passed by the learned Trial Judge in Execution Case No.736/2018 on the file of the Court of the XII Additional City Civil and Sessions Judge, (CCH-27) at Bengaluru at Annexure-A by a writ of certiorari or any other writ, order or direction and etc.
This petition coming on for Preliminary Hearing this day, the court made the following:-
ORDER Petitioner being the Obstructor in the Execution No. 736/2018 filed by the first respondent-decree holder herein is invoking the writ jurisdiction of this Court for assailing the order dated 28.06.2019, a copy whereof is at Annexure-A, whereby the learned XIIth Additional City Civil Judge, Bengaluru City, has allowed the two applications filed by the decree holder in IA Nos. 13 & 14 on a cost of Rs.1,000/-, and thereby permitted PW.1 to be recalled for the purpose of further cross-examination.
2. Learned counsel for the petitioner finds fault with the impugned order alleging that it is casually made; for filling the lacuna, a witness cannot be recalled for further cross-examination; the power under Order XVIII Rule 17 of CPC, 1908 can be sparingly exercised and with circumspection that too in appropriate cases; he banks upon the decision of the Apex Court in the case of VADIRAJ NAGGAPPA VERNEKAR VS. SHARADCHANDRA PRABHAKAR GOGATE, (2009) 4 SCC 410.
3. Having heard the learned counsel for the petitioner and having perused the petition papers as also the Apex Court decision cited at the Bar, this Court declines to grant indulgence because:
i) the reason assigned by the respondent-decree holder in the affidavit supporting the applications in IA Nos. 13 & 14 having been found plausible by the trial Court, the evidence is opened and the witness is recalled to the box for the purpose of further cross-examination; this order is a product of exercise of discretion by the Court below and the matter ultimately resting in the domain of the said Court, writ jurisdiction for the scrutiny of the same is unwarranted; the Apex Court at paragraph No.31 of the very same decision has attached finality to such orders at the level of the trial Court itself by stating “ …when a party makes an application under the provisions of Order XVIII Rule 17 CPC, it is ultimately within the Court’s discretion if it deems fit, to allow such an application…”
ii) the paragraph Nos. 27, 28 & 29 of the decision supra, do not much avail to the benefit of the petitioner inasmuch as the fact matrix therein is bit different from that comprised in the impugned order; and iii) the trial Court has imposed a cost of Rs.1,000/- payable to the judgment debtors as a condition for allowing the subject applications of the decree holder and thus, whatever little prejudice that is arguably caused thereby, is remedied;
4. The apprehension of the petitioner that in the guise of the impugned orders, the decree holder may wide open the cross-examination beyond the purpose for which the applications are allowed may not be justified since the trial Court will ensure that such a cross-examination shall be limited to the purpose for which the witness is recalled and not beyond that in any circumstance.
Writ Petitions are disposed off accordingly.
Sd/- JUDGE DS/Bsv