Karnataka High Court
Mohammed Sajjad A Bijapur vs N Akber on 19 January, 2023
Bench: S.Sunil Dutt Yadav
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WP No. 1199 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 1199 OF 2023 (GM-CPC)
BETWEEN:
1. MOHAMMED SAJJAD A BIJAPUR
S/O ABDUL GAFFAR BIJAPUR,
AGED ABOUT 35 YEARS,
PRESIDENT AND SECRETARY
WISDOM ISLAMIC STUDIES AND
EDUCATION TRUST,
R/O S S LAYOUT,
3RD BLOCK,
E CROSS,
DAVANAGERE-577 001
2. SHAFEEQ-UR-REHAMAN
S/O HOOR BANU,
AGED ABOUT 47 YEARS,
MEMBER,
Digitally signed WISDOM ISLAMIC STUDIES AND
by VIJAYA P EDUCATION TRUST,
Location: High R/O NO.644, 7TH CROSS,
Court of AZADNAGAR,
Karnataka DAVANAGERE-577 002
3. ILIMAYATHULLA
S/O ABUR RAZAK SAB,
AGED ABOUT 50 YEARS,
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WP No. 1199 of 2023
MEMBER,
WISDOM ISLAMIC STUDIES AND
EDUCATION TRUST,
R/O IST MAIN, IST CROSS,
AZADNAGAR,
DAVANAGERE-577 001
4. GOUSULLA AHAMED
S/O IBADULLA AHAMED,
AGED ABOUT 40 YEARS,
MEMBER,
WISDOM ISLAMIC STUDIES AND
EDUCATION TRUST,
R/O NO.677/3, IST MAIN,
7TH CROSS,
AZADNAGAR,
DAVANAGERE-577 002
... PETITIONERS
(BY SRI. SIDDAPPA B M., ADVOCATE)
AND:
1. N AKBER
S/O N ISMAIL SAID,
AGED ABOUT 39 YEARS,
REMOVED TRUSTEE OF DEFT. NO. TRUST,
R/O NO.133,
9TH CROSS,
DEVARAJ URS LAYOUT,
A BLOCK,
DAVANAGERE-577 006
2. ILIYAZ KHAN
S/O HYDER ALIKHAN,
AGED ABOUT 36 YEARS,
R/O NO.133,
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WP No. 1199 of 2023
9TH CROSS,
DEVARAJ URS LAYOUT,
A BLOCK,
DAVANAGERE-577 006
3. WISDOM ISLAMIC STUDIES AND
EDUCATION TRUST
NO.2455/90, MCC 'A' BLOCK,
DAVANAGERE -577 001
AND ALSO AT
WISDOM INTERNATIONAL SCHOOL,
BESIDE SAVANUR PLAZA,
P B ROAD,
DAVANAGERE-577 001
4. ZAHEER ABDUR
S/O ISMAIL SAB,
AGED ABOUT 48 YEARS,
MEMBER OF DEFENDANT NO.1,
TRUST R/O 31TH CROSS,
3RD MAIN,
VINOBANAGAR
DAVANAGERE-577 002
... RESPONDENTS
(BY SRI. M.R. HIREMATHAD, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE
ORDER DATED 05.01.2023 PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, DAVANGERE ON IA NO. V
AND VI IN OS NO. 1/2017 PRODUCED AS ANNEXURE-G TO THE
WRIT PETITION AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 1199 of 2023
ORDER
Petitioners who are defendants 2 to 5 before the trial
Court have filed the present petition seeking to set aside
the order passed on I.As. 5 and 6 in O.S.No.1/2017
whereby the trial Court has rejected the applications filed
seeking for reopening of the case and permitting the
defendants to cross-examine P.W.1.
2. Perused the impugned order as well as the
order sheet. It is noticed that the plaintiffs had also
sought for leading of further evidence and the said
application filed by the plaintiffs in I.A.4 was allowed.
However, it is noticed that subsequently as plaintiffs had
sought for time, further evidence of plaintiffs was taken as
nil and the matter was posted for defendants' evidence on
10.11.2022. On 10.11.2022 as defendants were not
present, the evidence of defendants was taken as nil and
the matter was posted for arguments on merits on
24.11.2022. On 24.11.2022, plaintiffs had sought for time
WP No. 1199 of 2023
and the matter was adjourned finally to 09.12.2022. On
09.12.2022, request of the plaintiffs for time was rejected
and after perusal of the records, the matter was posted for
judgment.
3. It is noticed that the matter was posted for
defendants' evidence on 10.11.2022 and on that date, in
light of the absence of defendants, matter was straight
away posted for arguments. Contention of learned counsel
for petitioners that there was no sufficient opportunity to
the defendants, requires acceptance. It is also noticed that
even on 24.11.2022, the trial Court noticed that the
plaintiffs had sought for time which prayer was rejected
and after perusing the records, posted the matter for
judgment which may also not have been a correct
procedure that was followed.
4. It is noticed that though the learned trial Judge
has noticed that the question of reopening the matter once
it is posted for judgment would not arise, perusal of the
WP No. 1199 of 2023
order sheet would indicate that no sufficient opportunity
has been granted by the Court to the parties, no
arguments have been advanced and there is no evidence
of the defendants on record. Accordingly, it cannot be
stated that all proceedings in the suit were completed
before the matter was posted for judgment. It would be
necessary to afford an opportunity to the defendants to
participate in the proceedings.
5. No doubt, there may have been some lapse on
the part of the parties by taking adjournments but a
perusal of the order sheet would indicate that the Court
ought to have given further opportunities to the parties.
Accordingly, taking note that no reasons are assigned as
regards to the dismissal of the applications on its merits, it
is a fit case for setting aside the impugned order.
6. Accordingly, the impugned order is set aside
and I.As. 5 and 6 are allowed. Stage of the case is
reopened for the purpose of cross-examination of P.W.1
WP No. 1199 of 2023
and P.W.1 is recalled. It is also observed at this stage that
as request was earlier made by the plaintiffs for further
evidence, in the event the plaintiffs want to lead further
evidence, liberty is reserved to the plaintiffs to do so in
light of the order recalling P.W.1. Thereafter, defendants
are at liberty to cross-examine and proceed with the
matter. Both the parties undertake that they would not
seek for unnecessary adjournments. The trial Court to
dispose off the matter keeping in mind the applicable
administrative orders relating to disposal of the old
matters.
7. In light of the above, the petition is disposed
off.
Sd/-
JUDGE
VP
