Karnataka High Court
Rajshekhar S/O Channappa ... vs Siddappa S/O Nagappa Lebageri on 10 December, 2021
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO.108483/2016 (GM CPC)
BETWEEN:
ERAMMA W/O BALAPPA MAGANOOR,
AGE: 71 YEARS, OCCUPATION: HOUSEHOLD,
R/O BAHADDURBANDI, TALUKA AND DISTRICT: KOPPAL.
...PETITIONER
(BY SRI D.L.LADKHAN, ADVOCATE)
AND :
1. RAJASHEKHAR S/O CHANNAPPA NAYINEGILE,
AGE: 42 YEARS, OCCUPATION: AGRICULTURE,
R/O KOPPAL, TALUKA AND DISTRICT: KOPPAL.
2. SIDDAPPA S/O NAGAPPA LEBAGERI,
AGE: 61 YEARS, OCCUPATION: AGRICULTURE,
R/O BAHADDURBANDI, TALUKA AND DISTRICT: KOPPAL.
3. NANDEPPA @ ANDAPPA S/O. NAGAPPA LEBAGERI,
AGE: 61 YEARS, OCCUPATION: AGRICULTURE,
RESIDENT OF BAHADDURBANDI,
TALUKA AND DISTRICT: KOPPAL,
NOW RESIDING AT BANGALORE.
4. PRABHAKAR S/O. VIRUPAXAPPA BETAGERI,
AGE: MAJOR, OCCUPATION: BUSINESS,
RESIDENT OF BHAGYANAGAR,
TALUKA AND DISTRICT: KOPPAL.
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5. AJAYKUMAR S/O MOTILAL JANGADA,
AGE: 57 YEARS, OCCUPATION: AGRICULTURE,
RESIDENT OF NEAR MAHESHWARI TEMPLE,
KOPPAL, TALUKA AND DISTRICT: KOPPAL.
6. GURUNATHSA S/O YALLUSA BADI.
AGE: 48 YEARS, OCCUPATION: AGRICULTURE,
RESIDENT OF BHAGYANAGAR,
TALUKA AND DISTRICT: KOPPAL.
....RESPONDENTS
(BY SRI SHRIKANT D. BABLADI, ADV. FOR RESPONDENT NO.1)
(BY SRI B.SHARANABASAWA, ADVOCATE FOR RESPONDENT NO.1)
(NOTICE TO RESPONDENT NOS.2 TO 6-DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE ANY
APPROPRIATE WRIT OR ANY APPROPRIATE ORDER OR ANY
DIRECTION IN THE NATURE OF WRIT OF CERTIORARI QUASHING
THE ORDER PASSED BY LEARNED SENIOR CIVIL JUDGE, KOPPAL
ON I.A.NOS.43 AND 44 DATED 29.09.2016 AS PER ANNEXURE-K
AND ISSUE ANY APPROPRIATE WRIT OR ANY APPROPRIATE
ORDER OR ANY DIRECTION IN THE NATURE OF WRIT OF
MANDAMUS ALLOWING I.A.NOS.43 AND 44 AS PER ANNEXURES-G
AND H TO THE WRIT PETITION IN O.S.NO.29/2007, ON THE FILE
OF SENIOR CIVIL JUDGE, KOPPAL, TO KEEP PW-1 FOR FURTHER
CROSS EXAMINATION.
:3:
THIS PETITION COMING ON FOR HEARING INTERLOCUTORY
APPLICATION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
An application for recalling of P.W.1 for cross-
examination has been rejected by the impugned order.
2. P.W.1 cross-examined on 03.08.2011. On that day,
the learned counsel for the 3rd defendant stated that he was
adopting the cross-examination made by defendant Nos.1
and 2 of P.W.1. Thereafter, on 02.09.2016, when the matter
was set down for defendants evidence. It is thus clear that
the trial had not concluded, when the present application was
filed.
3. The trial Court has rejected the application on the
ground that the power exercisable under Order-18 Rule-17 of
C.P.C. is used sparingly to clear any ambiguity and the 3rd
defendant has not exercised any right and therefore, at this
stage, P.W.1 could not be recalled.
4. Learned counsel for the petitioner submits that P.W.1
was not cross-examined by the counsel for the 3rd defendant.
Since the counsel had made a submission that he was
adopting the cross-examination made of P.W.1 by counsel for
defendant Nos.1 and 2. This undisputed fact clearly goes to
show that the 3rd defendant had as a matter of fact not cross-
examined P.W.1.
5. Learned counsel for the respondents however
contended that under Order-18 Rule-17 of CPC does not
enable a party to seek for recalling of witness and it is only
the Court which could recall the witness for its own purposes.
He relied upon the Judgment rendered by the Hon'ble
Supreme Court in the case of Gayathri v. M. Girish reported
in AIR 2016 SC 3559 in support of his submission.
6. In the very said Judgment which the learned counsel
relies upon, the Court has infact approved the ruling rendered
by the Hon'ble Supreme Court in the case of K.K.Velusamy
v. N.Palanisamy, reported in (2011) 11 SCC 275, in
which, it is stated that the power under Section 151 of CPC or
under Order-18 Rule-17 of CPC is not to be used routinely or
merely for the asking, but when the application is found to be
bonafide and if the additional evidence oral or documentary
would assist the Court to clarify the evidence on the issues
and would assist the Court in rendering justice, the Court can
exercise its powers under Order-18 Rule-17 of CPC. It has
been clearly stated that the Court should be satisfied for valid
and sufficient reasons to reopen the case. In my view, the
Judgment relied upon by the learned counsel does not bar the
power of the Court to entertain the request by a party to
recall a witness.
7. As stated above, in the instant case, P.W.1 was not
cross-examined at all by the counsel for the 3rd defendant
and the counsel had merely adopted the cross-examination of
the P.W.1 made by the counsel appearing for defendant
Nos.1 and 2. If subsequently, it is realized that cross-
examination of P.W.1 would be necessary in order to
establish the defence of defendant No.3, the defendant No.3
would be entitled to seek for recalling of P.W.1 and I am
therefore of the view that the reasons set forth in the
impugned order cannot be sustained.
8. However, while granting the prayer for reopening of
the case and cross-examination of P.W.1, it would be
necessary to impose certain conditions, having regard to the
fact that the suit is of the year-2007.
9. The learned counsel submits that the suit is set down
for arguments. In this view of the matter, I deem it proper to
direct the 3rd defendant to cross-examine P.W.1 on the next
hearing date i.e., on 04.01.2022 P.W.1 shall keep himself
present on the next hearing date before the trial Court and if
for any reason, whatsoever, the 3rd defendant does not cross-
examine P.W.1 on the next hearing date, the impugned order
shall stand revived and P.W.1 shall stand automatically
discharged.
10. It is also made clear that defendant No.3 shall
conclude the cross-examination on the very same day i.e.,
04.01.2022 and will not seek for any adjournment.
11. It would also be necessary to saddle the petitioner
with cost of Rs.10,000/- payable to P.W.1 on the next hearing
date.
Writ petition is accordingly allowed.
Sd/-
JUDGE
Ckk
