IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NO.2877 OF 2016 (GM-FC) AND WRIT PETITION NOs.4434-4435 OF 2016 BETWEEN:
SRI. Y.V.MADHUSUDHAN, S/O G.N.VEERA REDDY, AGED ABOUT 39 YEARS, NO.418, 2ND FLOOR, 21ST MAIN, 27TH CROSS, JUDICIAL LAYOUT, YELAHANKA, BENGALURU – 560 065. … PETITIONER (BY SRI. SHANKAR REDDY C., ADV., - ABSENT) AND:
SMT. V.ARATHI, D/O G.VENKATARAMANAPPA, W/O Y.V.MADHUSUDHAN, AGED ABOUT 34 YEARS, RESIDING AT NO.1010, MATHRU NILAYA, 7TH ‘A’ MAIN, B.T.M. 1ST STAGE, BANGALORE – 560 029.
AND ALSO AT NO.227, 21ST CROSS, 16TH MAIN, CHOWDESHWARI KRUPA, H.S.R. 3RD SECTOR, BEHIND H.S.R. CLUB, BENGALURU – 560 102. … RESPONDENT (BY SRI. S.NAGARAJA, ADV., - ABSENT) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 05.12.2015 PASSED IN M.C. NO. 4274/2012 ON THE FILE OF THE III ADDITIONAL PRINCIPAL FAMILY COURT, BENGALURU, THE ANNEXURE – H TO THIS W.P. SET ASIDE THE SAME BY ALLOWING THE SAID APPLICATION FILED UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE AS SOUGHT FOR BY THE PETITIONER AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R None appear for the parties. Records perused.
In these writ petitions under Articles 226 and 227 of the Constitution of India, petitioner, inter alia, has assailed the validity of the order dated 5.12.2015 passed by the III Additional Family Court, Bengaluru, by which application filed by the petitioner under section 151 of Code of Civil Procedure, 1908 [hereinafter referred to as ‘the Code’, for short], praying the court to reopen the case of the petitioner and further adduce further evidence by examining one Sri. L. Harish Kumar, who was counsel for petitioner, has been rejected.
2. From perusal of the record, it is evident that the application filed by the petitioner under Order XVIII Rule 17 of the Code read with section 151 of the Code is rejected on the ground that examination of the counsel is not necessary in the fact situation of the case. In other words, the trial Court while dealing with the application under Order XVIII Rule 17 of the Code, has prejudged the issue which is not permissible in law. The impugned order, therefore, suffers from the error apparent on the face of the record.
3. In the result, the application filed by the petitioner under Order XVIII Rule of the Code is allowed.
Office is directed to transmit copy of this order to the concerned Family Court.
Accordingly, petitions are disposed of.
Sd/- JUDGE AN/-