IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.10941/2019 AND WRIT PETITION Nos.11010-11013/2019(GM-CPC) BETWEEN:
1. SMT. UMA JAYARAM W/O LATE JAYARAM, AGED ABOUT 59 YEARS, 2. SMT. DEEPA J D/O LATE JAYARAM AGED ABOUT 39 YEARS, 3. SMT. SHILPA J D/O LATE JAYARAM AGED ABOUT 36 YEARS, 4. KARTHIK J S/O LATE JAYARAM AGED ABOUT 32 YEARS, ALL ARE R/AT #1078, 2ND FLOOR, 2ND MAIN, 2ND CROSS, MANASANAGAR, NAGARBHAVI, BENGALURU - 560 072.
... PETITIONERS (BY SRI DR. J. S. HALASHETTI, ADVOCATE) AND:
SRI MUNEGOWDA, S/O LATE MUNI DODDAPPA AGED ABOUT 63 YEARS R/AT NO. 1191/3, 18TH B MAIN ROAD, RAJAJINAGAR, BENGALURU - 560 010.
... RESPONDENT (BY SRI M.V. CHANDRASHEKAR REDDY, ADVOCATE) **** THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDERS DATED 29.01.2019, 26.02.2019 AND 02.03.2019 IN O.S.NO.2456/2013 PASSED BY THE VII ADDL. CITY CIVIL JUDGE, BENGALURU, (CCH- 19) WHICH IS MARKED AS ANNEXURE-H, AND CONSEQUENTLY ALLOW THREE IAs DATED 26.02.2019 AND TWO IAs DATED 02.03.2019 WHICH ARE MARKED AS ANNEXURES-C TO G RESPECTIVELY.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The defendant Nos.1 to 4 filed these writ petitions against the order passed by the trial Court dated 29.1.2019, 26.2.2019 and 2.3.2019 closing the evidence of plaintiffs; rejecting the applications filed under Section 151 of CPC and under Order 18 Rule 17 of CPC to recall and re-open the case for further cross-examination of PW.1; and also rejecting the applications filed under Order 18 Rule 17 of CPC to recall and to re-open the case for cross- examination of PWs.2 to 5.
2. The respondent who is the plaintiff before the trial Court filed the suit for recovery of a sum of Rs.14,85,000/- with interest raising the various contentions. The petitioners/defendants filed the written statement and denied the plaint averments and sought for dismissal of the suit.
3. When the matter was posted for defendants’ evidence, at that stage, the defendants filed three applications to recall and re-open the case for further cross-examination of PW.1 and to adjourn the matter for 30 days and two applications to recall and re-open the case for cross-examination of PW.2 to 5, contending that when the matter was posted for defendants’ evidence after closing the further cross-examination of PW.1 as nil, the senior counsel for the defendants was unable to appear before the court as he was suffering from fever and his colleague prayed for an adjournment on the ground that senior was unwell and the same has been rejected etc., The said applications are opposed by the learned counsel for the plaintiff. The trial Court by the impugned orders dated 29.1.2019, 26.2.2019 and 2.3.2019 closed the evidence of plaintiffs; rejected the applications filed under Section 151 of CPC and under Order 18 Rule 17 of CPC to recall and re-open the case for further cross-examination of PW.1; and also rejected the applications filed under Order 18 Rule 17 of CPC to recall and to re-open the case for cross- examination of PWs.2 to 5. Hence the present writ petitions are filed.
4. I have heard the learned counsel for the parties to the lis.
5. Dr. J. S. Halashetti, learned counsel for the petitioners – defendants contended that the impugned orders passed by the trial Court rejecting the prayer sought for by the defendants is erroneous and contrary to the material on record. He further contended that the trial Court ought to have given opportunity to the defendants to proceed with the case as the senior counsel represented by the defendants was unwell and request was made his colleague, but the request was not considered by the trial Court and proceeded to pass the impugned orders. He would further contend that the rights of the parties should not be deprived on technicalities and opportunity should be given to the parties to prove their respective cases. Therefore he sought to allow the writ petitions.
6. Per Contra Sri M.V. Chandrashekara Reddy, learned counsel for the plaintiff sought to justify the impugned orders passed by the trial Court and contended that the applications along with the memorandum of facts filed by the learned counsel representing the defendants have not assigned any cogent and proper reasons to allow the applications. The suit was of the year 2013 and the defendants are dragging the matter one way or the other filing the application after application and therefore sought for dismissal of the present writ petitions.
7. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff filed the suit for recovery of Rs.14,85,000/- with interest as claimed. It is also not in dispute that when the matter was posted for cross-examination of PW.1, counsel for the defendants was not present and request was made to the learned Judge to adjourn the matter on the ground that the senior counsel was not well. The impugned orders passed by the trial Court depict that inspite of sufficient opportunities given, the defendants were absent and not utilized the opportunity to cross-examine PW.1 and the applications are filed for recalling at the whims and fancies of the defendants etc., Taking into consideration that the suit is filed for the recovery of Rs.14,85,000/- and in order to provide an opportunity to both the parties, the present writ petitions have to be allowed subject to the payment of costs and subject to the condition that the defendants shall proceed with the case on the next date of hearing or any other date to be fixed by the learned Judge without seeking any adjournment.
8. For the reasons stated above, the writ petitions are allowed. The impugned orders passed by the trial Court dated 29.1.2019, 26.2.2019 and 2.3.2019 are hereby quashed. The applications filed under Section 151 of CPC and under Order 18 Rule 17 of CPC to recall and re-open the case for further cross-examination of PW.1 and also the applications filed under Order 18 Rule 17 of CPC to recall and to re-open the case for cross-examination of PWs.2 to 5, are allowed subject to payment of costs of Rs.10,000/- (Rupees ten thousand only) to the plaintiff on the next date of hearing. On such payment, the trial Court shall proceed with the case in accordance with law.
9. The defendants shall appear before the trial Court on the next date of hearing or any other date to be fixed by the learned Judge and shall continue to proceed with the case as and when the Court post the matter for cross- examination of PWs or evidence of the defendants without seeking any further adjournment.
With the above observations, the writ petitions are allowed.
Sd/-
JUDGE Gss/-