Sri S Ashok Kumar vs N Krishnappa
2022 Latest Caselaw 1890 Kant

                        1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 7TH DAY OF FEBRUARY, 2022

                      BEFORE

THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

              R.S.A. No.1175/2015
BETWEEN:


SRI S ASHOK KUMAR
S/O SUGANCHAND
AGED ABOUT 61 YEARS
R/AT NO.8/32,
BULL TEMPLE ROAD,
BANGALORE-4.
                                    ... APPELLANT
(BY SRI P.D.SURANA, ADVOCATE)


AND:


N KRISHNAPPA
S/O LATE NARASAPPA
SINCE DEAD BY L.Rs.

1. K. BABU
S/O KRISHNAPPA
MAJOR
R/AT HARALAKUNTE VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK-560 079.

2. K. NAVEEN KUMAR
S/O N. KRISHNAPPA
MAJOR
                         2

3. K. RAGHU
S/O KRISHNAPPA, MAJOR

NOS. 2 AND 3 ARE RESIDING
WITH 1ST RESPONDENT AT
HARALAKUNTE VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH TALUK-560 079.

4. L. SHIVARAMA REDDY
S/O G. LAKSHMAIAHA REDDY
MAJOR
R/AT AGARA VILLAGE,
BANGALORE SOUTH TALUK-560 079.
                                 ... RESPONDENTS

(BY SRI V.F.KUMBAR, ADVOCATE FOR R-4;
 NOTICE TO R-1 TO R-3 IS HELD SUFFICIENT
 VIDE ORDER DATED 18.3.2021)

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SEC.100 OF CPC      PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 03.01.2013 PASSED
IN O.S. NO. 739/2003 ON THE FILE OF THE II
ADDL.SENIOR     CIVIL   JUDGE    BANGALORE      (R)
DISTRICT, BANGALORE AND ALSO THE JUDGMENT
AND DECREE PASSED IN R.A. NO.38/2013 DATED
03.01.2015 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE BENGALURU RURAL DISTRICT, BENGALURU,
AND   REVERSE   BOTH    THE   JUDGMENTS    IN   THE
INTEREST OF JUSTICE.


      THIS APPEAL COMING ON FOR ADMISSION THIS
DAY THROUGH VIDEO CONFERENCE, THE COURT
DELIVERED THE FOLLOWING
                              3

                    JUDGMENT

This second appeal is filed by the plaintiff who

has failed before both the Courts in a suit which had

been filed by him seeking for specific performance of

an agreement of sale.

2. It is not in dispute that the 5th defendant

was examined as DW-1 and since he was not cross-

examined, he had been discharged. It is also not in

dispute that an application had been filed for

recalling DW-1 on 29.11.2012 which was thereafter

adjourned to 05.12.2012 for filing of objections. On

that day, the Trial Court allowed the application for

recalling DW-1 subject to payment of costs.

However, since the counsel for the plaintiff prayed

for time to cross-examine DW-1, the Trial Court

refused to grant time and posted the case for

judgment without affording an opportunity to the

plaintiff.

3. Thus, the plaintiff has not cross-examined

the only witness who was examined on behalf of the

defendants, that is, DW-1. In my view, the following

substantial question of law arises for consideration in

this appeal:

Whether the Trial Court and Appellate Court were justified in dismissing the suit of the plaintiff without affording an adequate opportunity to the plaintiff to cross-examine DW-1 and thereafter proceeded to dismiss the suit on the ground that the evidence of the defendants remained unchallenged?

4. As stated above, after DW-1 was

discharged, an application was filed for discharging

DW-1 on 29.11.2012 and the application was posted

to 05.12.2012 for filing objections. On that day,

admittedly, the Court allowed the application subject

to payment of costs and only because the plaintiff's

counsel asked for time, the Trial Court refused to

accede to such request and posted the case for

judgment. It is, therefore, clear that the Trial Court

has not afforded a reasonable opportunity to the

plaintiff to cross-examine DW-1.

5. Merely because a request for adjournment

after the application for recalling DW-1 for cross

examination was made by the plaintiff's counsel to

cross-examine DW-1, the Trial Court ought not to

have refused the same and posted the case for

judgment. It is to be stated here that on 5.12.2012,

the suit was posted for consideration of the

application for recalling DW-1 and it is quite possible

that the plaintiff's counsel would not be ready for

cross-examination and would be under the

impression that on the application being allowed, the

matter would be listed on another day for cross

examining the recalled DW-1. Insistence on the

plaintiff to cross-examine DW-1 on the same day

amounts to denial of a reasonable opportunity. I,

therefore, answer the substantial question of law in

favour of the appellant.

6. As a consequence, the impugned judgments

and decree are set aside and the matter is remanded

to the Trial Court. The Trial Court is directed to

proceed from the stage of cross-examination of DW-

1 and dispose of the suit in accordance with law.

7. It is made clear that the plaintiff shall cross-

examine DW-1 on the next hearing date without

seeking for any further time. If any further time is

sought for by the plaintiff's counsel, the Trial Court

would once again be at liberty to discharge DW-1.

8. It is also to be stated here that because of

the default of the plaintiff, the 5th defendant has had

to suffer a lengthy litigation before the Appellate

Court as well as this Court. I am, therefore, of the

view that the appellant-plaintiff would be required to

be saddled with costs, which are quantified at

Rs.10,000/- (Rupees Ten thousand only). The costs

shall be paid on or before 28.02.2022 to the 5th

defendant's counsel.

9. Since the suit is of the year 2003, the Trial

Court shall make every endeavour to dispose of the

suit within six months from the date of receipt of a

copy of this order, subject, of course, to the co-

operation of the parties and their counsel.

10. The appeal stands allowed, subject to the

above observations.

Sd/-

JUDGE

VGH