Karnataka High Court
The Belgaum Institute Of Creative ... vs Najib S/O. Meeransaheb Shaikh on 5 January, 2022
Bench: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
WRIT PETITION NO. 104986/2021(GM-CPC)
BETWEEN
THE BELGAUM INSTITUTE OF CREATIVE ARTS
REPRESENTED BY ITS PROPRIETOR
SHRI. INDRAJEET VIJAY KAMBLE
AGE. 38 YEARS, OCC. BUSINESS
C/O. THE BELGAUM INSTITUTE OF CREATIVE
ARTS FLAT NO. 302 KALASHREE APARTMENTS
CTS NO. 17/A AND 17/B, KHANAPUR ROAD
TILAKWADI , BELGAUM.
...PETITIONER
(BY SRI. RAMESH I. ZIRALI, ADVOCATE)
AND
1. NAJIB, S/O. MEERANSAHEB SHAIKH
AGE: 68 YEARS, OCC. RETIRED
R/O. PLOT NO. 1867, CTS NO. 7242
SECTOR NO. 10, III MAIN ANJANAYA NAGAR
MM EXTENSION, BELGAUM-590016
2. VIJAY L KAMBLE
AGE. 72 YEARS, OCC. RETD, R/O. H.NO. 691/1,
SHREE LAXMI NIVAS, JYOTHI NAGAR,
KANGRALI(KH), TAL/DIST. BELAGAVI.
... RESPONDENTS
(BY SRI. DIWAKAR BHAT, ADV. FOR R1; SERVICE OF
NOTICE TO R2 IS DISPENSED WITH)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 24/11/2021 PASSED ON IA NO.X IN OS
167/2017 ON THE FILE OF IV ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, BELAGAVI VIDE ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is the first defendant in
O.S.No.167/2017 filed in the Court of the Hon'ble IV
Additional Senior Civil Judge, Belagavi (for short, 'the
civil Court'). The petitioner is aggrieved because the civil
Court by the impugned order dated 24.11.2021 has
rejected the petitioner's application (I.A.No.X) under
Order XVIII Rule 17 read with Section 151 of the Code
of Civil Procedure, 1908, refusing to recall PW1 for
further cross-examination. The civil Court has observed
that though repeated opportunities have been extended
to the petitioner on cost, this witness has not been
cross-examined.
2. Mr. Ramesh I. Zirali, the learned counsel for
the petitioner, submits that if the petitioner has not
ensured that the witness is cross-examined, it is only
because of bona fide reasons. The petitioner is bona
fide in prosecuting the proceedings. The civil Court
should have considered the petitioner's bona fides and
allowed the petitioner's application to facilitate complete
adjudication of the controversy.
3. Sri. Diwakar Bhat, the learned counsel who
appears for the contesting first respondent, draws the
attention of this Court to the fact that the petitioner is
extended an opportunity to cross-examine witness even
after the suit was listed for judgment and submits that
there is deliberate failure to cross-examine the witness
with the sole intention of protracting the proceedings.
4. This Court must intervene and provide for
complete adjudication of the controversy lest the
dispute is protracted even after the judgment of the civil
Court on the ground that the petitioner should have
been given another opportunity, but such interference
must be on terms. Therefore, the following:
ORDER
[a] The petition is allowed; and the
impugned order dated 24.11.2021 in O.S.
No.167/2017 on the file of IV Additional
Senior Civil Judge and JMFC, Belagavi is
quashed recalling PW1 for cross-
examination.
[b] The witness shall be present on
the next date of hearing and the witness
shall be cross-examined on behalf of the
petitioner without seeking any adjournment
on the next date of hearing and the
petitioner shall also pay cost of Rs.5,000/- to
the witness on the next date of hearing;
[c] If there is any failure, the
petitioner shall waive the right to cross-
examine. The petitioner shall also ensure
that his evidence is completed within a
period of eight weeks from the date of the
first hearing before the civil Court after this
order, and
[d] The petitioner's failure, if any,
shall be dealt with by the civil Court in
accordance with law to facilitate effective and
complete adjudication.
Sd/-
JUDGE
RH
