IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.No.33983 OF 2015(GM-FC) BETWEEN:
Sri Suri Wilfred, S/o.A.M.Wilfred, Aged about 58 years, Residing at No.886, III Cross, Austin Town, II Stage, Bangalore – 560 099. … Petitioner (By Sri Venkatesh R.Bhagat, Advocate) AND:
1. Smt.Shashikala Wilfed, W/o.Suri Wilfred, Aged about 55 years, Flat No.313, III Floor, Gopalan Gardenia Apartments, No.37/1, Hosur Main Road, Veerasanhdra, Near Electronic City, Bangalore – 560 100.
2. Mary Assumpta Latisia, Aged about 45 years, R/at No.886, 3rd Cross, Austin Town 2nd Stage, Bangalore – 560 099. ... Respondents (By Smt.A.Lalitha, Advocate for R1: Sri Manjappa V., Advocate for R2) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to set aside the order dated 6.8.2015 on I.A. in M.C.No.1869/2012 passed by the learned 3rd Addl. Principal Judge, Family Court, Bangalore dismissing application filed under Order 18 Rule 17 of CPC vide Annexure-A and etc.
This writ petition, coming on for preliminary hearing ‘B’ Group, this day, the Court, made the following:
ORDER This petition is directed against the order dated 06.08.2015 (Annexure-A) passed on I.A. in M.C.No.1869/2012 filed under Order 18 Rule 17 of Code of Civil Procedure by the III Addl. Principal Judge, Family Court, Bengaluru.
2. The petitioner and the first respondent are the husband and wife. Respondent No.1 wife has filed M.C.No.1869/2012 seeking for dissolution of marriage by a decree of divorce and for grant of permanent alimony of Rs.25.00 lakhs. The petition is filed under Section 10(1)(i)(x) of the Divorce Act, 1869. On service of summons the petitioner has filed statement of objections as per Annexure-C. Subsequently, respondent No.1 wife has filed an affidavit of chief examination. Since the respondent No.1 was not cross examined, the cross-examination of the respondent No.1 is taken as nil. Subsequently, petitioner herein has filed an application for recalling PW1 for cross- examination. On 10.11.2014, the Family Court has passed an order allowing the I.A. filed by the petitioner and permitting him to cross-examine PW1 subject to payment of cost of Rs.500/-. On subsequent date PW1 was not present. Finally, on 17.06.2015 PW1 was present but the petitioner has requested for time. The same has been rejected. Cross-examination of PW1 was closed. Thereafter, the petitioner has filed an application under Order 18 Rule 17 of Code of Civil procedure seeking permission to cross-examine PW1. By order dated 06.08.2015, the application filed by the petitioner was dismissed. Being aggrieved by the same the petitioner has filed this writ petition.
3. Sri Venkaesh R.Bhagath, learned counsel for the petitioner submits that after service of notice the petitioner has filed a detailed statement of objections to the petition filed by the first respondent-wife. After the application filed by the petitioner I.A.No.6 was allowed on 10.11.2014, on three occasions the advocate for the petitioner-husband was present but PW1 was absent. Hence, he could not cross-examine PW1. On 17.06.2015, PW1 was present. On inconvenience of the advocate for the petitioner, on that day, he has requested for adjournment for cross-examining PW1. The same was refused. Subsequently, the petitioner has filed an application under Order 18 Rule 17 of the Code of Civil Procedure, which was dismissed Without giving opportunity to the petitioner. Hence, he sought for allowing the writ petition.
4. Heard learned counsel for the petitioner and perused the records.
5. It is not in dispute that on an earlier occasion petitioner has not cross-examined PW1. The cross examination was taken as nil. Subsequently on 10.11.2014 the application was allowed and petitioner was permitted to cross-examine PW1. On going through the order sheet it is very clear that on 02.12.2014, 08.01.2015, 06.02.2015 and 18.03.2015 PW1 was absent. On the next date of hearing i.e., on 17.06.2015 PW1 was present but the counsel for the respondent was not ready and he sought for time to cross-examine PW1. It is very clear that on earlier occasions, PW1 was not present. Only on 17.06.2015, PW1 was present and the petitioner’s counsel sought for time due to some inconvenience.
6. Therefore, in the interest of justice, to give one more opportunity to the petitioner the order passed by the Family Court on IA in M.C.No.1869/2012 dated 06.08.2015 (Annexure- A) is set aside. The matter is remitted back to the Family Court with a specific direction that on the next date of hearing i.e., on 29.01.2019, the petitioner shall cross-examine PW1 and he has to close his cross-examination on that day. If there is any inconvenience for the Court on that day, the same shall be done on the next date and no further adjournment shall be granted to the petitioner.
With the above observations, this writ petition is allowed.
Cm/-
Sd/- JUDGE