Karnataka High Court
T K Ramakrishnappa vs K Ramanjinappa on 16 January, 2021
Author: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.27796 OF 2019 (GM-CPC)
BETWEEN:
1 . T K RAMAKRISHNAPPA,
(FATHER NAME OF PETITIONER NO.1
SHOWN IN THE CAUSE TITLE OF
PLAINT AS S/O KRISHNAPPA GOWDA)
S/O LATE KRISHNAPPA,
AGED ABOUT 67 YEARS,
R/A TARABANAHALLI VILLAGE,
JALA HOBLI, DEVENAHALLI TALUK,
BENGALURU RURAL DISTRICT.
2 . SRI K GOPALAGOWDA,
(FATHER NAME OF PETITIONER NO.2
SHOWN IN THE CAUSE TITLE OF
PLAINT AS S/O KRISHNAPPA GOWDA)
S/O LATE KRISHNAPPA,
AGED ABOUT 62 YEARS,
R/A #14, SRI SAI NIVAS,
1ST CROSS, MLA LAYOUT, R T NAGAR,
BENGALURU-560 032.
WRONGLY SHOWN AS
R/AT TARABANAHALLI VILLAGE,
JALA HOBLI, DEVENAHALLI TALUK,
BENGALURU.
...PETITIONERS
(BY SRI. P N RAJESWARA, ADVOCATE)
AND:
1 . K RAMANJINAPPA,
AGED ABOUT 65 YEARS,
S/O LATE KRISHNAPPA GOWDA,
R/AT TARABANAHALLI VILLAGE,
JALA HOBLI, DEVENAHALLI TALUK,
BENGALURU RURAL DISTRICT-560032.
2 . T K SUBRAMANYA,
2
S/O LATE KRISHNAPPA GOWDA,
AGED ABOUT 58 YEARS,
NO.003, D BLOCK, L G ENCLAVE,
LAND MARK RESIDENCY,
NANJAPPA CIRCLE, VIDYARANYAPURA,
BENGALURU-560097.
...RESPONDENTS
(BY SMT. RAJESHWARI M, ADVOCATE FOR R1;
SRI. RAMESHA T R, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 25.06.2019 ON I.A.NO.20 IN O.S.NO.903/2006
PASSED BY THE SENIOR CIVIL JUDGE, DEVANAHALLI
(ANNEXURE-A) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING - B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioners being the defendant Nos.2 & 3 in a
declaration suit in O.S.No.903/2006, are knocking at the
doors of writ court for assailing the order dated 25.6.2019,
whereby their application in I.A.No.20 seeking leave of the
court to cross-examine the 1st defendant, has been rejected
by the learned Sr. Civil Judge, Devanahalli, thereby denying
them the right of cross-examination.
2. After service of notice, the contesting respondents
having entered appearance through their counsel, resist the
writ petition making submission in justification of the
impugned order and the reasoning on which it is structured.
3. Having heard the learned counsel for the parties
and having perused the Petition Papers, this court is inclined
to grant indulgence in the matter for the following reasons:
(a) The reasoning of the learned trial Judge at para 6
of the impugned order, reads as under:
"6. The above defendants in their affidavit
annexed to the application contended that even
though they are supporting the case of plaintiff but
disputing the measurement. If it is so, why they
have not cross examined PW.1 in this regard is not
stated. It shows that they filed this application only
to drag the proceedings. In the same way
defendant No.3 examined as DW.1. The plaintiff not
cross examined DW.1. If the contention raised by
defendant No.2 and 3 is really true, definitely they
would cross examine PW.1 on this point. Instead of
the same, now they wants to cross examine DW.2.
It shows that they have not approached this court
with clean hands. If the plaint averment not
discloses the proper measurement as alleged by
defendant No.2 and 3, then they have to cross
examine PW.1 not the DW.2. Hence defendant no.2
and 3 not made out any reasonable grounds or
sufficient cause to allow the application."
The above reasoning militates against the rudiments of law of
evidence, to say the least.
(b) Mr. Rupert Cross, an Oxford Professor of law, in
his treatise "EVIDENCE" III Edition, London -
BUTTERWORKS, at Page - 212, states as under:
" All witnesses are liable to be cross-
examined except one who is called by the judge,
one who is called for the sole purpose of producing
a document and one who is not examined-in-chief
because he had been called by mistake. A witness
who does not come within these excepted
categories is probably liable to be cross-examined,
not merely by the opponent of the party calling him,
but also by all other parties. All parties probably
have the right to cross-examine witnesses not
called by them, whether or not the witness is
himself a party, and whether or not the witness
has given evidence against the party seeking to
cross-examine him; ...
Sarkar's "Law of Evidence" 18th Edition, LexisNexis at
page 138 states as under:
"When Witness may not be Cross-Examined- (1)
A witness summoned merely to produce a
document (post s.139); (2) a witness sworn by
mistake (ante and post s.139); or (3) a witness
whose examination has been stopped by the judge
before any material question has been put (Creevy
v. carr. 7 C & P 64) is not liable to cross-
examination. (4) A witness giving replies in answer
to questions by the court can only be cross -
examined with leave (s.165 post). (5) A witness
who has given no evidence in chief, may not be
cross-examined as to credit (Bracegirdle v. Bailey, 1
F & F 536). (6) Under s.138 of the Indian Evidence
Act, cross-examination follows chief-examination,
but not without chief-examination. It there is no
chief-examination, there is no cross-examination.
Application for cross-examination of the plaintiff
even when the plaintiff has not been examined in
chief was rejected as not maintainable".
(c) The right of cross-examination in varying degrees
depending upon the pleadings, avails to a party to the
proceedings and that ordinarily, it is not conditioned by the
status of the parties therein subject to all just exceptions; this
aspect having not animated the impugned order, the same is
liable to be faltered.
In the above circumstances, this Writ Petition succeeds;
impugned order is set at naught; petitioners' subject
applications having been favoured, learned trial Judge is
requested to permit them to cross-examine the 1st defendant,
forthwith.
Registry shall send a copy of this judgment to the
learned Judge in question for updating his legal knowledge.
Learned Judge of the court below is requested to try &
dispose off decade & a half old suit before the onset of
Summer Vacation, 2021 since already there is such an order
made by a Co-ordinate Bench for expeditious disposal.
All contentions of the parties are otherwise kept open.
No costs.
Sd/-
JUDGE
cbc
