Dr Ekta Singh vs Mr Rajeev Giri
2022 Latest Caselaw 3592 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF MARCH, 2022

                      BEFORE

        THE HON'BLE MR.JUSTICE S.G.PANDIT

    WRIT PETITION NO.23605 OF 2021 (GM-FC)

BETWEEN:

DR. EKTA SINGH
DAUGHTER OF D.V.SINGH
AGED ABOUT 34 YEARS,
R/AT. COLUMBIA ASIA HOSPITAL
THE ICON 2 & 3 FLOOR, NO.8
80 FEET ROAD, HAL 3RD STAGE
INDIRANAGAR,
BANGALORE-560 075.
                                   ... PETITIONER

(BY SRI. OMAR SHERIFF, ADVOCATE)

AND:

MR. RAJEEV GIRI
S/O. JAYDEVGIRI
AGED ABOUT 42 YEARS,
R/AT: FLAT NO.D 006
CASA ANSAL APARTMENT
B.G.ROAD, NEAR GOPALAN MALL
J.P.NAGAR, 3RD PHASE,
BANGALORE- 560078.
                                   ... RESPONDENT
(BY SRI. SRIVATSA, SR.COUNSEL A/W
SRI. N.GOUTHAM RAGHUNATH, ADVOCATE)
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     THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA READ WITH SECTION 48
OF THE GUARDIAN AND WARDS ACT         1890 PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED 10.12.2020 ON
THE FILE OF THE LEARNED VI ADDL. FAMILY COURT IN
ORDERS ON IA NO.30 IN G AND WC 128/2018 ANNEXURE-
D AND ETC.,


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                        ORDER

The petitioner-Wife is before this Court under

article 226 of the Constitution of India with a prayer to

set aside the order dated 10.12.2021 in G & WC

No.128/2018 on the file of IV Addl. Principal Judge,

Family Court, Bangalore (Annexure 'D').

2. Heard Sri.Omar Shariff, learned counsel for

the petitioner and Sri.Srivatsa, learned Senior Counsel

for the respondent. Perused the writ petition papers.

      3.     The         respondent        herein      instituted

proceedings        for    custody     of    child     in     G&WC

No.128/2018. The petitioner completed her evidence

on 27.01.2021, examined RW-2 on 29.01.2021 and

RW-2 was cross examined by the other side on

21.01.2022. Subsequently written argument is filed by

the respondent and learned counsel for the

respondent has also argued the matter. The matter is

set down for judgment today.

4. After completion of the RW-1 evidence,

i.e., petitioner's, an application under Order 18 Rule

17 of CPC was filed to reopen the evidence of the

RW-1 for further evidence. Learned counsel for the

petitioner would submit that the petitioner intended to

bring on record further development which has taken

place during the pendency of the proceedings with

regard to treatment meted out to the child during

visitation by the respondent-Husband. The said

application was opposed by filing objections by the

respondent-Husband. The Trial Court by order dated

10.12.2021 rejected the application.

5. Learned counsel for the petitioner would

submit that the Trial Court has committed an error in

dismissing the application. It is submitted that the

Trial Court ought to have given an opportunity to the

petitioner to further examine herself to bring on

record subsequent development. It is submitted that if

the petitioner was allowed to reopen the case, no

prejudice would have caused to the case of the

respondent-Husband.

6. Per contra, learned Senior Counsel

Sri.Srivatsa, appearing on behalf of respondent

submits that even though the writ petition was filed in

the month of December, the writ petition was not

moved. After argument, when the matter was posted

for judgment, this writ petition is moved before this

Court. He submits that there is no bonafide in the

petition and prays for dismissal of the writ petition.

7. On giving anxious consideration to the

arguments put forth by the learned counsels and on

going through the writ petition papers including

impugned order passed by the trial Court, I am of the

view that no error could be found with the impugned

order. It could be gathered from the material and

additional affidavit, petitioner intended to bring on

record the subsequent development after grant of

visitation by the Hon'ble Apex Court. On 02.12.2021,

further time was granted to file additional affidavit till

04.12.2021 on which date additional affidavit was

filed. The affidavit dated 04.12.2021 was withdrawn

on 07.12.2021 and on the said date one more

additional affidavit was filed by the respondent. The

jurisdiction of the Court could be invoked under Order

18 Rule 17 of CPC to recall witness and further

examination only under exceptional circumstances.

The learned trial Judge has observed that further

development in the affidavit are very vaguely stated

and the petitioner has not disclosed the subsequent

fact which would be necessary for just adjudication of

the dispute. The petitioner-wife intended to bring on

record the order passed by the Apex Court, and in

that regard it is to be stated, always it is open for the

petitioner-wife to place on record the order passed by

the Apex Court. The learned trial Judge on going

through the entire material has observed that

additional affidavit is filed to fill up the lacuna in the

cross-examination of RW-1. Always the court must

examine whether such additional evidence is

necessary to facilitate a just and proper decision in the

case.

There is no good ground to entertain the writ

petition, that to when the case is posted for judgment.

Accordingly, writ petition stands rejected.

Sd/-

JUDGE

RKA