IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.50784/2017(GM-CPC) BETWEEN:
SRI SOMASHEKAR REDDY S/O SRINIVASA REDDY AGED 51 YEARS R/AT DIGAVARAGADAHALLI VILLAGE, MAJARA MALLAPPALLI ROBERTSONPET HOBLI, BANGARPET TALUK, KOLAR DISTRICT-563122.
... PETITIONER (BY SRI B. RAMESH, ADVOCATE) AND:
SRI RAGUNATHA REDDY S/O SRINIVASA REDDY AGED 61 YEARS R/AT DIGAVARAGADAHALLI VILLAGE, MAJARA MALLAPPALLI, ROBERTSONPET HOBLI, BANGARPET TALUK, KOLAR DISTRICT-563122.
(BY SRI L. VIJAYA KUMAR, ADVOCATE) ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.10.2017 PASSED ON I.A.NO.XXI BY THE PRINCIPAL SENIOR CIVIL JUDGE AND PRL. JMFC, KGF IN O.S.NO.41/2011 WHICH IS PRODUCED AND MARKED AS ANNEXURE-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner – 8th defendant filed the present writ petition against the order dated 26.10.2017 on I.A. No.21 made in O.S. No.41/2011 rejecting the application filed to recall PW.1 for further cross-examination.
2. The respondent who is the plaintiff before the trial Court filed the suit for partition and separate possession contending that he is entitled to 1/16th share in the suit schedule properties and also for possession. The defendant No.8 filed the written statement and denied the plaint averments. PW.1 was cross-examined by some of the defendants. When the matter was posted for further cross-examination of PW.1 by the 8th defendant, counsel for the 8th defendant was not present and therefore it was closed. Hence, the 8th defendant filed I.A. No.21 under Section 151 of the Code of Civil Procedure to recall PW.1 for further cross-examination by the 8th defendant, contending that PW.1 was already cross-examined by his earlier counsel and after obtaining certified copies of the cross- examination, he learnt that certain important questions were not asked to the PW.1 in the cross-examination and hence he sought for allowing the application. The said application was opposed by the plaintiff by filing objections. The trial Court considering the application and the objections by the impugned order dated 26.10.2017 rejected the application. Hence the present writ petition is filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri B. Ramesh, learned counsel for the petitioner – 8th defendant contended that the impugned order passed by the trial Court rejecting the application filed by the 8th defendant to recall PW.1 for further cross-examination, is erroneous and contrary to the material on record. He would further contend that while cross-examining PW.1 by the earlier counsel for the 8th defendant, certain important questions were not asked to PW.1 due to the bonafide reasons. In a suit for partition, full opportunity has to be given to the parties and therefore the trial Court ought to have allowed the application in order to do justice between the parties. He would further contend that if an opportunity is given, the petitioner – defendant No.8 will proceed with the cross-examination of PW.1 on the next date of hearing. Therefore he sought to allow the writ petition by quashing the impugned order passed by the trial Court.
5. Sri L. Vijaya Kumar, learned counsel for the respondent - plaintiff sought to justify the impugned order passed by the trial Court and contended that the earlier counsel for defendant No.8 already cross-examined PW.1 in full and after change of counsel, the present application is filed only to protract the proceedings. Therefore he sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is an undisputed fact that the present respondent filed the suit for partition and separate possession claiming 1/16th share in the suit schedule properties. It is also not in dispute that 8th defendant already cross-examined PW.1 earlier. After obtaining certified copies of the cross- examination, 8th defendant learnt that certain important questions were not asked to PW.1 in the cross-examination and therefore filed application to recall PW.1 for further cross-examination. In a suit for partition between the plaintiff and the defendants, if the 8th defendant is permitted to further cross-examine PW.1, no prejudice will be caused to the plaintiff. When the rights of the parties are involved in respect of the immovable properties, the trial Court ought not to have rejected the application to recall PW.1 for further cross-examination. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done on technicality. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Admittedly, the suit filed by the plaintiff for partition and separate possession in respect of the larger extent of properties (22 items of the suit schedule properties). Therefore an opportunity has to be given to the petitioner – defendant No.8 to further cross-examine PW.1.
7. The trial Court proceeded to reject the application mainly on the ground that earlier counsel for the 8th defendant fully cross-examined PW.1 and the present application is filed solely on the ground of change of counsel. In order to curtail the practice of filing applications for recalling the witnesses for further cross-examination, Order 18 Rule 17 of the Code of Civil Procedure has been repealed and therefore there is no provision for recalling the witnesses for further cross-examination. The trial Court failed to notice that in view of the provisions of Section 151 of the Code of Civil Procedure, at any stage of the proceedings, the Court exercising its inherent powers make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Therefore the application filed by the petitioner - 8th defendant to recall PW.1 for further cross-examination should not have been rejected by the trial Court and ought to have been provided an opportunity to the 8th defendant to further cross-examine PW.1. The same has not been done. In view of the same, the impugned order passed by the trial Court cannot be sustained and an opportunity should be given to the petitioner – defendant No.8 to further cross- examine PW.1 on payment of costs.
8. For the reasons stated above, the writ petition is allowed. The impugned order passed by the trial court on I.A. No.21 in O.S. No.41/2011 is hereby quashed. I.A. No.21 filed by the petitioner – 8th defendant is allowed subject to payment of costs of Rs.4,000/- (Rupees four thousand only) payable by the petitioner - 8th defendant to the plaintiff and subject to the condition that the 8th defendant shall proceed with the cross-examination of PW.1 on the next date of hearing or any other short date to be fixed by the trial Court, without dragging on the proceedings.
The suit is filed in the year 2011 and we are in the year 2019. Nearly eight years have elapsed. Therefore the trial Court is directed to dispose of the suit expeditiously subject to cooperation from both the parties to the lis.
Ordered accordingly.
Sd/-
JUDGE Gss/-