Karnataka High Court

Mr. Hasan S/O. Abdul Khadar Shaikh vs S/O. Abdul Khadar Shaikhmr. Jafar on 4 August, 2023

Bench: S.R. Krishna Bysrkkj

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                                                                 NC: 2023:KHC-D:8327
                                                             WP No. 107516 of 2018




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                  DATED THIS THE 4TH DAY OF AUGUST, 2023

                                                 BEFORE

                             THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

                                 WRIT PETITION NO.107516 OF 2018 (GM-CPC)

                      BETWEEN:
                      1.   MR. HASAN S/O. ABDUL KHADAR SHAIKH,
                           AGE: 46 YEARS, OCC: AGRICULTURE
                           AND BUSINESS,
                           R/O. AKBAR GALLI, YELLAPUR TOWN,
                           TAL: YALLAPUR, UTTAR KANNADA.

                      2.   MRS. SALIMABI W/O. KHASIMKHAN,
                           AGE: 66 YEARS, OCC: HOUSEHOLD,
                           R/O. MUSLIM GALLI, BINAGA GHAT,
                           TQ: KARWAR, UTTARA KANNADA.

                      3.   MRS. MAIRUNNISSA W/O. ISMAIN SNAIKH,
                           AGE: 61 YEARS, OCC: EMPLOYEE,
                           R/O. BABRUWADA VILLAGE, TQ: ANKOLA,
                           UTTARA KANNADA.

                      4.   MRS. NOORJAHAN W/O. KARIMKHAN,
Digitally signed by        AGE: 50 YEARS, OCC: HOUSEHOLD,
JAGADISH T R
Location: HIGH
                           R/O. KAJUBHAG, TQ: KARWAR,
COURT OF
KARNATAKA
                           UTTARA KANNADA.
Date: 2023.08.09
11:48:43 +0530
                      5.   MRS. MUNIRABI W/O. MONARNMAD RAFIQ,
                           AGE: 48 YEARS, OCC: HOUSEHOLD,
                           R/O. NEAR OLD HUBBALLI POLICE STATION,
                           TQ: HUBBALLI, DIST: DHARWAD.

                      6.   MRS. PARVEEN W/O. NASIR SHAIKH,
                           AGE: 44 YEARS, OCC: HOUSEHOLD,
                           R/O. HOUSING BOARD COLONY,
                           NEAR MARUTI TEMPLE, MADAGAON,
                           STATE: GOA.

                                                                      ...PETITIONERS
                      (BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE)
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                                            NC: 2023:KHC-D:8327
                                        WP No. 107516 of 2018




AND:
1.   MR. JAFAR S/O. ABDUL KHADAR SHAIKH,
     AGE: 58 YEARS, OCC: AGRICULTURE
     AND BUSINESS, R/O. H.NO.2726/11,
     AZAD COLONY, KESHWAPUR,
     HUBBALLI, DIST: DHARWAD.

2.   MR. ABDUL REHAMAN,
     S/O. ABDUL KHADAR SHAIKH,
     AGE: 64 YEARS, OCC: AGRICULTURE
     AND BUSINESS, R/O. ISLAM GALLI,
     YELLAPUR TOWN,
     TQ: YELLAPUR, UTTARA KANNADA.

3.   MR. SADRUDDIN,
     S/O. ABDUL KHADAR SHAIKH,
     AGE: 60 YEARS, OCC: AGRICULTURE
     AND BUSINESS,
     R/O. ISLAM GALLI, YELLAPUR TOWN,
     TQ: YELLAPUR, UTTARA KANNADA.

4.   MR. ABDUL GHANI,
     S/O. ABDUL KHADAR SHAIKH,
     AGE: 56 YEARS, OCC: AGRICULTURE
     AND BUSINESS, R/O. AKBAR GALLI,
     YELLAPUR TOWN,
     TQ: YELLAPUR, UTTARA KANNADA.

5.   MR. SHAIKH ALI,
     S/O. ABDUL KHADAR SHAIKH,
     AGE: 54 YEARS, OCC: AGRICULTURE
     AND BUSINESS, R/O. MADAGAON, GOA STATE.
                                                ...RESPONDENTS

(BY SRI.A.P.HEGDE JANMANE, ADVOCATE FOR R3 AND R5)
(R1, R2, R3-SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, QUASH THE ORDER
ON I.A.NO.8 DATED 26.09.2018 PASSED BY THE SENIOR CIVIL
JUDGE, YELLAPUR IN O.S.NO.34/2016 WHICH IS PRODUCED AT
ANNEXURE-"H"     CONSEQUENTLY      ALLOW     THE    I.A.NO.8
DATED:14.08.2018 PRODUCED AT ANNEXURE-"F".
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                                              NC: 2023:KHC-D:8327
                                        WP No. 107516 of 2018




     THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
                            ORDER

This petition by defendants No.5 to 10 in O.S.

No.34/2016 on the file of the Senior Civil Judge, Yellapur,

is directed against the impugned order dated 26.09.2018

passed on I.A. No.8 whereby the said application filed by

the petitioners/defendants No.5 to 10 under Section 151

of the Code of Civil Procedure, 1908 seeking to strike

down the cross-examination of P.W.1 by defendants No.2

to 4 was dismissed by the Trial Court.

2. The material on record discloses that

respondent No.1-plaintiff instituted the aforesaid suit

against the petitioners-defendants No.5 to 10 as well as

respondents No.2 to 5-defendants No.1 to 4 for partition

and separate possession of his alleged share in the suit

schedule immoveable property. In the said suit,

respondents No.3 and 5, who were arrayed as defendants

No.2 and 4 filed written statement supporting the claim of

NC: 2023:KHC-D:8327 WP No. 107516 of 2018

the plaintiff. During the course of the trial, the plaintiff

examined himself as P.W.1 and, in the first instance, he

was cross-examined by defendants No.2 and 4. In this

context, it is relevant to state that during the course of

cross-examination of P.W.1, the learned counsel for the

petitioners-defendants No.5 to 10 was present and did not

oppose the said cross-examination of P.W.1 by the learned

counsel for defendants No.2 and 4. However,

subsequently, the petitioners filed the instant application

seeking to strike off/down, the cross-examination of P.W.1

by defendants No.2 and 4 and the said application having

been opposed by defendants No.2 and 4, the Trial Court

proceeded to pass the impugned order rejecting I.A. No.8

by holding as under:

ORDERS ON I.A. NO.VIII

This application is filed by counsel for the plaintiff U/Sec.151 of C.P.C. to struck down the cross-examination of PW1 by defendants No.2 and 4.

2. In the affidavit supporting the application it was contended the deponent is defendant No.5 he is deposing on behalf defendants No.6 to 10 also.

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Present suit was filed against them for partition. Plaintiff filed suit in collusion with defendants No.2 and 4. In the written statement filed by defendants No.2 and 4 plaint allegations are not denied. They filed written statement in support of plaint allegations. Therefore they have no right to cross- examine the PW1. On 14-2-2018 defendants No.2 and 4 cross-examined the PW1 to support the decree in favour of plaintiff. Advocate appearing for plaintiff and advocate appearing for defendants No.2 and 4 are from same office. In other cases they filed a joint Vakalath. But in this case intentionally to cause loss to defendants No.5 to 10, they colluded with each other and cross-examined PW1. If application is not allowed defendants No.5 to 10 will be put to more hardship and loss. Therefore prays to struck-down the cross-examination of PW1 by defendants No.2 and 4.

3. Counsel for the defendants No.2 and 4 filed objections to this application stating the present application is contrary to law and not maintainable. It is false to say that defendants No.2 and 4 are colluding with each other. Defendant No.2 filed written statement and defendant No.4 adopted written statement filed by defendant No.2. Defendants No.2 and 4 contended that they have not neither supported the case of the plaintiff nor case of

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other defendants. As per pleading of defendants No.2 and 4 the cross-examined the plaintiff in this suit. So it is absolutely false to say that cross-examination of plaintiff by defendants No.2 and 4 leads to decree the suit of plaintiff. It is further contended that at the time of crossexamination of plaintiff by defendants No.2 and 4 counsel. Advocate for defendants No.5 to 10 were present before court. At that point of time they have not raised any objections. After completion of cross-examination they have filed present application to drag the proceedings. Defendants No.5 to 10 have not made out an reasonable grounds to allow the application. Right of cross-examination of defendants No.2 and 4 cannot be restricted or curtailed in any manner. Therefore defendants No.5 to 10 have no manner of right to file present application. Defendants No.2 and 4 claim their independent share in the suit properties and they have every right cross examine the plaintiff in this suit. Therefore prays to dismiss the application.

4. Heard the arguments of learned counsel for the defendants No.5 to 10 Shri. V.P.Bhat and learned counsel for the for defendants No.2 and 4 Shri. D.K.Bhat on application.

5. Perused the case records and relevant documents.

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6. Following points that would arise for my consideration.

                        POINTS

      1.    Whether    under    the   facts   and

circumstances of the case defendants No.5 to 10 have made out grounds to struck-down the cross-examination of PW1 by defendants No.2 and 4?

2. What Order?

7. My findings on the above points are as follows;

Point No.1 : in the Negative Point No.2 : As per final order, for the following;

REASONS

8. Point Nos.1 and 2 : This is a suit for partition and separate possession of plaintiff share in the suit properties. Parties to the suit are Mohammedans.

vehemently argued that defendants No.2 and 4 who are in collusion with plaintiff have no right to cross- examine the PW1. Learned counsel relied on the decision reported in ILR 2009 Karnataka 423 in case of Sri. Ramachandra and another V/s Vithal and Others. Wherein Hon'ble High Court of Karnataka discussed the scope of crossexamination, who has the right to cross-examine a witness and purpose of cross-examination. He further relied on that decision

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of Punjab and Haryana High Court in case of Kuldeep Kumar V/s Kanwar Pal Singh rendered in C.R.Nos.7852 of 2015 and 384 of 2016 (O&M).

9. On the contrary learned counsel for the defendants No.2 and 4 Shri. D.K.Bhat made submission that at the time of cross-examination of PW1 by defendants No.2 and 4, counsel for defendants No.5 to 10 were very much present and they did not raised any objections that point of time and therefore question of strucking down the cross-examination of PW1 by defendants No.2 and 4 at this stage does not arise and the law laid down in the above said decision cannot be made applicable in the case on hand.

10. Having considered the rival contentions of the parties it is relevant to point out in the present suit filed by plaintiff for partition and separate possession of plaintiff's 2/7th share in the suit properties. Plaintiff among other properties included property No.466/1GR measuring 7-12-0. But defendants No.5 to 10 filed the written statement that description of this property to the extent of 7-12-0 is incorrect and it ought to have been 0-15-07 acres. For this written statement plaintiff also filed rejoinder with permission of the court. Defendant No.2 who filed written statement how Sy.No.466/1GR which was measuring 0-15-07 ana was reduced to 0-7-12 ana and cross-examination of PW1 by defendants No.2

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and 4 if on perusals, it is restricted two portion of the sales made out of 0-15-07 ana. It is relevant to point out that this is a suit for partition. Plaintiff claim declaration of their share. Whereas defendant claim their share. In that context to find out what is the share of defendant though prima-facie defendants No.2 and 4 may be colluded with plaintiff but to determine the share of plaintiff and defendants cross-examination of PW1 is essential. Cross- examination may be by way of putting a question in the form of interrogatory or by way of suggestion and there is no any restriction the way in which question to be put to the witness. Merely because PW1 stated for all the question "it is true" it does not mean that defendants No.2 and 4 are admitting the case of plaintiff. That apart this cross examination of defendants No.2 and 4 was made before commencement of cross-examination of contesting defendants i.e., defendants No.5 to 10. Still defendants No.5 to 10 not commenced the cross- examination of PW1. Under these circumstances there is every opportunity available for the defendants No.5 to 10 to cross-examine the PW1 on his evidence in examination-in-chief as well as evidence given by PW1 in the cross-examination of defendants No.2 and 4. In so far as judgment relied on by counsel for the defendants No.2 and 4 is concerned, in case of Sri. Ramachandra and Vithal and

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others it is the case for declaration of title and possession and defendants No.3 to 6 that case were tenants of the plaintiff where in actual possession. Therefore there was restriction put on the cross- examination of PW1 by defendants No.3 to 6 because plaintiff was protected the possession of defendants No.3 to 6. In so far as judgment of Punjab and Hariyana High Court is concerned it was a suit based on possession by way of specific performance of the said agreement. There is no dispute with regard to the law laid down by the Hon'ble High Courts in the above said decision but each case has to be looked into having regard to the nature of prayer sought in the plaint. It is suit for partition and there may be little differences between plaintiff and defendants with regard to the extent of share they claim in the suit properties. In that view of the matter cross- examination of plaintiff by other defendants, though prima-facie defendant may be colluding with plaintiff to certain extent, it is necessary to allow them to cross-examine, to find out what is the share of defendants in a suit for partition. That apart record show the counsel for the defendants No.5 to 10 was very much present in the open court as on the date of cross-examination of PW1 by defendants No.2 and 4 and he prayed time for cross-examine the PW1. In that context counsel for the defendants No.5 to 10 ought to have raised objections before

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commencement of cross-examination of defendants No.2 and 4 but they allowed counsel for the defendants No.2 and 4 to cross-examine the PW1 on the written statement averment of defendants No.2 and 4. In that view of the matter when cross examination of PW1 by defendants No.2 and 4 is completed, there is no provisions under the Evidence Act to struck-down the cross-examination which are already recorded. Therefore relief sought in the application cannot be granted at this stage. Accordingly application filed counsel for defendants No.5 to 10 deserves to be dismissed. Accordingly point raised is answered in the Negative. Hence, I proceed to pass the following;

ORDERS I.A.No.VIII is filed by counsel for defendants No.5 to 10 is hereby dismissed. For cross-examination of PW1 by Shri. V.P.Bhat for defendants No.5 to 10.