IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.14185 OF 2017 (GM-CPC) BETWEEN:
SUSHEELA W/O. MAYIGAIAH AGED ABOUT 57 YEARS DOOR NO.2844 V CROSS, GANDHINAGARA MANDYA CITY MANDYA TALUK-571 401. ... PETITIONER (BY SRI. RAJA L., ADV.) AND:
1. H.M. PRAKASH S/O. LATE MANCHAIAH @ MANCHEGOWDA AGED ABOUT 48 YEARS R/AT UCHHALAGERE VILLAGE KASABA HOBLI MANDYA TALUK MANDYA DISTRICT-571 401.
2. SHARADAMBA W/O. B.R. RAMACHANDRA AGED ABOUT 52 YEARS R/AT II CROSS KAVERINAGARA MANDYA CITY MANDYA TALUK-571 401.
3. THANUJA W/O. BABU AGED ABOUT 50 YEARS R/AT SOMANAHALLI VILLAGE MADDUR TALUK MANDYA DISTRICT-571 401. … RESPONDENTS (BY SRI. VEERESHA K., ADV. FOR SRI. H.B. CHANDRASHEKAR, ADV. FOR R1 SRI. H.T. VASANTH KUMAR, ADV. FOR R2 AND R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, MANDYA, IN O.S.No.723/2010 DATED 16.9.2016 VIDE ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The 6th defendant has filed the present writ petition against the order dated 16.9.2016 passed on I.A. filed under Section 151 of CPC for recalling P.W.1 for the purpose of cross-examination.
2. Respondents 1 to 3 filed suit for partition and separate possession contending that the plaintiff and defendants 1 to 3 are the members of the joint family and the suit schedule properties are the joint family properties. When the matter was posted for cross-
examination of P.W.2, at that stage, the 6th defendant filed an application under Section 151 of CPC to recall P.W.1 for the purpose of cross-examination contending that the case was posted on 9.2.2016 for cross- examination of P.W.1. On that day, the counsel for defendant No.6 was not present before the Court as he was held up before the Court of Principal District and Sessions Judge, Mandya. Considering the absence of the counsel, the trial Court proceeded to pass orders treating cross-examination of P.W.1 as Nil and posted the matter for further evidence of plaintiff. Hence, the application under Section 151 of CPC was filed which was resisted by the contesting respondents. The trial Court considering the application and the objections, rejected the application by the impugned order. Hence, the present petition is filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri.Raju.L., learned counsel for the petitioner-defendant No.6 contended that the impugned order passed by the trial Court rejecting the application filed by the petitioner for permission to cross-examine P.W.1 is erroneous and contrary to the material on record. He would further submit that when the matter was posted on 9.2.2016, the counsel for defendant No.6 was not present as he was engaged in some other Court. Considering his absence, the trial Court has passed orders taking cross-examination of P.W.1 as nil. The absence of the counsel when the case was called was for bonafide reasons. The trial Court ought to have given one more opportunity. The same has not been done. The rights of the parties involved is in respect of immovable property. Therefore, the trial Court ought to have allowed the application filed by the petitioner for recalling of P.W.1 for the purpose of cross-examination. Hence, he has sought to allow the writ petition.
5. Per contra, Sri.Veeresha.K., learned counsel appearing for Sri.H.B. Chandrashekar, counsel for respondent No.1 sought to justify the impugned order and contended that when the case was called, the counsel for defendant No.6 was very much present before the Court and his request for adjournment to cross-examine P.W.1 was refused and the application was rejected. The suit was filed in the year 2010. Defendant No.6 is dragging the matter and therefore, the trial Court has rightly rejected the application. Hence, he has sought for dismissal of the writ petition.
6. Having heard the learned counsel for the parties, it is not in dispute that the suit filed by the plaintiff is for partition and separate possession of the suit schedule property. The respondents 4 to 6 who are purchasers through the plaintiff’s father contended that they are bonafide purchasers. The suit filed by the plaintiff was not maintainable as it was a self acquired property. According to the 6th defendant when the case was called on 9.2.2016 for cross-examination of P.W.1, the counsel for defendant No.6 prayed for cross- examination of P.W.1 at 3.00 p.m. Again at 3.00 p.m., the case was called out. P.W.1 was present. Counsel for Defendant No.6 was absent. Hence, cross- examination of Defendant No.6 is taken as Nil. According to the counsel for defendant No.6 he was engaged in some other Court. Though in the morning he prayed for time, it was kept by at 3.00 p.m. When the case was called, the counsel remained absent as he was held up in some other Court. The rights of the parties involved is in respect of immovable property. The trial Court instead of rejecting the prayer on technicality ought to have provided an opportunity to defendant No.6 to cross-examine P.W.1 by imposing cost. The same has not been done. 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.
7. In view of the above, in the interest of justice to both the parties and keeping in view the rights of the parties are involved in respect of the immovable property the impugned order passed by the trial Court cannot be sustained. Accordingly, the writ petition is allowed. The impugned order dated 16.9.2016 passed by the trial Court rejecting the application filed by defendant No.6 for recalling P.W.1 for the purpose of cross-examination is set aside. The trial Court is directed to permit defendant No.6 to cross-examine P.W.1 on payment of cost of Rs.5,000/- payable by defendant No.6 to the plaintiff on the next date of hearing. Defendant No.6 shall proceed to cross- examine P.W.1 without seeking for any adjournment.
8. It is not in dispute that the suit is of the year 2010 and now we are in 2019. Hence, the trial Court is directed to expedite the suit itself subject to co- operation by both the parties.
Ordered accordingly.
Sd/- JUDGE *alb/-