Karnataka High Court
Sri. M. Papanna vs M/S. Valmark Homes on 3 February, 2022
Bench: Ashok S.Kinagi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI
WRIT PETITION NO.5482/2016 (GM-CPC)
BETWEEN:
1. SRI. M. PAPANNA,
S/O. MUNIYAPPA,
SINCE DEAD BY HIS LRS.,
1(a) SMT.YELLAMMA,
W/O LATE M.PAPANNA,
AGED ABOUT 52 YEARS,
2. SRI. ANAND H.P.,
S/O LATE M. PAPANNA,
AGED ABOUT 36 YEARS,
3. SRI. MANJUNATH H.P.,
S/O LATE M. PAPANNA,
AGED ABOUT 28 YEARS,
4. SMT. LATHA,
D/O. LATE M. PAPANNA,
AGED ABOUT 30 YEARS,
5. SMT. UMA,
D/O LATE M. PAPANNA,
AGED ABOUT 29 YEARS,
ALL ARE RESIDING AT NO.71/J,
3RD CROSS, MARAMMA TEMPLE STREET,
HULIMAVU, BANNERGHATTA ROAD,
BANGALORE - 560 076.
...PETITIONERS
(BY SRI.V.SHIVAKUMAR, ADVOCATE FOR PROPOSED LR OF P1,
P2 TO P5)
2
AND:
M/S. VALMARK HOMES,
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT NO.12/5, 2ND FLOOR,
DICKENSON ROAD,
BANGALORE.
REPRESENTED BY ITS PARTNERS,
1. MRS. VIPULA V REDDY,
2. MR. TEJAS H.V.
3. M/S. NAKOA CONSTRUCTIONS LIMITED
REPRESENTED BY ITS DIRECTOR,
MR. MAHAVEER GULECHA.
... RESPONDENTS
(BY SRI.RADHANANDAN B.S., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 11.01.2016 AT ANNEXURES - H
PASSED BY XIX ADDITINAL CITY CIVIL AND SESSIONS JUDGE
AT BANGALORE ON I.A.III AND IV IN O.S.1557/2011 AND
ALLOW THE TWO APPLICATIONS I.E., I.A.III AND IV AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners aggrieved by the order on
I.A.Nos.III and IV dated 11.01.2016 passed in
O.S.No.1557/2011 by the XIX Additional City Civil and
Sessions Judge, Bengaluru (CCH-18) have filed this
writ petition.
2. Brief facts leading to the filing of the
present petition, as borne out from the pleadings, are
as follows:
The respondent has filed a suit in
O.S.No.1557/2011 for recovery of money of
Rs.59,32,000/- with interest. The petitioners have
filed their written statement. The trial Court framed
the issues. The respondent appeared and filed an
affidavit in lieu of examination-in-chief and the case is
posted for further cross-examination by the
petitioners. Learned counsel for the petitioners was
absent on the said date. The trial Court taking note of
the absence of the counsel for the petitioner taken the
further cross-examination of PW-1 as nil. The
petitioners have filed an application - I.A.No.III to
reopen the case and I.A.No.IV to recall PW-1 for the
purpose of cross-examination. The respondent
opposed the said applications. The trial Court vide
order dated 11.01.2016 rejected the applications filed
by the petitioners i.e., I.A.Nos.III and IV. Hence, this
writ petition.
3. Heard the learned counsel for the
petitioners and the learned counsel for the
respondent.
4. Learned counsel for the petitioners submits
that the original defendant No.1 died living behind the
petitioners. Learned counsel for the petitioners could
not cross-examine PW-1, as there was no instructions
from the petitioners to cross-examine PW-1. He
further submits that the trial Court ought to have
granted a permission to the petitioners to cross-
examine PW-1. He further submits that the trial Court
has not given sufficient opportunity to the petitioners
to cross-examine PW-1. He further submits that the
trial Court has committed an error in rejecting the
applications. Hence, on these grounds, he prays to
allow the writ petition.
5. Per contra, the learned counsel for the
respondent supports the impugned order. He further
submits that the trial Court has granted sufficient
opportunity to the petitioners to cross-examine PW-1.
Inspite of availing sufficient opportunity, the
petitioners did not choose to cross-examine PW-1. He
further submits that the trial Court was justified in
rejecting the applications filed by the petitioners.
Hence, he submitted that the impugned order passed
by the trial Court is just and proper and does not call
for any interference by this Court. Hence, on these
grounds, he prays to dismiss the writ petition.
6. Heard and perused the records and
considered the submissions of the learned counsel for
the parties.
7. The respondent filed a suit in
O.S.No.1557/2011 for recovery of money. The
petitioners appeared and filed their written statement.
The trial Court framed the issues. Thereafter,
respondent was cross-examined as PW-1. Learned
counsel for the petitioners did not cross-examine PW-
1. Hence, the trial Court has taken the cross-
examination of PW-1 as nil and the
defendants/petitioners have not lead any evidence
and the evidence of the petitioners were taken as nil
by the trial Court and thereafter, the case was
disposed of on 12.11.2013 and decreed the suit of the
respondent. The petitioners being aggrieved by the
judgment and decree passed by the trial Court filed a
Misc.No.28/2014 for setting aside the judgment and
decree. The trial Court after hearing the parties
allowed Misc.No.28/2014 and set aside the judgment
and decree passed by the trial Court and thereafter,
the matter is posted for cross-examination of PW-1.
Learned counsel for the defendants/petitioners has
partly cross-examined PW-1 on 29.09.2015. Original
defendant No.1 died. Petitioners could not give
instruction to the counsel appearing on behalf of them
before the trial Court. The counsel for the petitioner
could not further cross-examine PW-1. The trial Court
has taken cross-examination of PW-1 as nil. If the
petitioners are permitted to cross-examine, no
injustice would be caused to the respondent. The
respondent can be compensated in terms of money.
In view of the above discussion, I pass the following:
ORDER
i. The writ petition is allowed.
ii. The impugned order dated 11.01.2016 is
set aside.
iii. I.A.Nos.III and IV filed by the petitioners
are allowed subject to payment of cost of
Rs.10,000/- payable to the Advocates
Welfare Fund within a period of one month
from the date of receipt of a copy of this
order. If the petitioners fails to
cross-examine PW-1 within 2 dates of
hearing, they will not be entitled for the
benefit of this order.
However, the parties are directed to co-operate
with the trial Court for early disposal.
Sd/-
JUDGE
SJK
