Karnataka High Court
Smt. Ningamma vs Sri. Basavaraju on 29 November, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:43095
WP No. 25540 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 25540 OF 2023 (GM-CPC)
BETWEEN:
1. SMT. NINGAMMA W/O LATE VEERAIAH
AGED ABOUT 80 YEARS, R/AT GULAGHATTA VILLAGE
KASABA HOBLI, MALAVALLI TALUK
MANDYA DISTRICT-571430
2. SRI.N.M SURESHA S/O LATE GOVINDEGOWDA
AGED ABOUT 50 YEARS, RA/T NELAMAKANAHALLI
VILLAGE, KASABA HOBLI, MALAVALLI TALUK
MANDYA DISTRICT-571430
...PETITIONERS
(BY SRI. MANJUNATH HEGDE, ADVOCATE)
AND:
1. SRI. BASAVARAJU S/O LATE VEERAIAH
AGED ABOUT 53 YEARS, R/AT GULAGHATTA VILLAGE
KASABA HOBLI, MALAVALLI TALUK
Digitally signed MANDYA DISTRICT-571430
by A K
CHANDRIKA 2. SMT. NAGAMMA W/O M. RUDRAPPA
Location: HIGH AGED ABOUT 50 YEARS, R/AT GULAGHATTA VILLAGE
COURT OF
KARNATAKA KASABA HOBLI, MALAVALLI TALUK
MANDYA DISTRICT-571430
...RESPONDENTS
(BY SRI. P NATARAJU., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER DATED 31/10/2023 ONE PASSED BY THE I ADDL CIVIL
JUDGE, JUNIOR DIVISION, MALAVALLI ON AN APPLICATION FILED
BY THE PETITIONERS HEREIN UNDER SECTION 151 OF CPC IN OS
NO. 388/23 FOUND AT ANNEXURE-E TO THE WP AND ETC.
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NC: 2023:KHC:43095
WP No. 25540 of 2023
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners, defendants in O.S.No.388/2013 on the
file of I Additional Civil Judge (Junior Division) Malavalli, are
before this Court questioning the order dated 31.10.2023,
rejecting application filed under Section 151 of the Code of Civil
Procedure, 1908 (for short 'CPC') to reopen the stage for
defendants' evidence and seeking permission to lead their
evidence.
2. Heard Sri. Manjunath Hegde, learned counsel for
the petitioner and Sri. P.Nataraju, learned counsel for
respondent No.1. Perused the writ petition papers.
3. Learned counsel for the petitioners would submit
that the suit of the respondent/plaintiff is one for partition and
separate possession of half share in the suit schedule
properties. Learned counsel would further submit that the
defendants have raised contention of Will and Adoption. The
plaintiff completed his evidence on 25.05.2023 and the suit was
set down for defendants' evidence on 13.06.2023. It is further
submitted that on 13.06.2023, the defendants sought time to
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lead evidence. But the same was rejected and the suit was
posted for arguments. He further submits that on 24.06.2023,
the trial Court heard arguments of the plaintiff and recorded
arguments of defendants as nill and posted for judgment to
17.07.2023, on which date, the petitioners-defendants filed an
application under Section 151 of CPC to reopen the stage and
seeking permission to lead their evidence. It is submitted that
thereafter, the suit was adjourned on two occasions for
objections of the plaintiff to the said application. But on
31.10.2023, the application of the petitioners-defendants was
rejected. Learned counsel would further submit that, the trial
Court committed an error in not affording reasonable
opportunity to the petitioners to lead their evidence. Learned
counsel submits that when the plaintiff completed his evidence
on 25.05.2023 and when the suit was posted to 13.06.2023 for
defendants' evidence, the petitioners-defendants ought to have
been provided one opportunity to lead their evidence by
adjourning the matter as prayed. Further, learned counsel
would pray for one opportunity to lead defendants' evidence
and he assures the Court that the defendants would lead their
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evidence within 15 days from today by advancing the suit, if it
is beyond 15 days.
4. Learned counsel for respondent No.1/plaintiff would
support the order passed by the trial Court. However, he
submits that if this Court is of the opinion that the petitioners-
defendants ought to be given an opportunity to lead their
evidence, he prays for fixing time for leading their evidence.
5. Heard learned counsels for the parties and on
perusal of the writ petition papers, I am of the view that the
petitioners-defendants before the trial Court ought to be given
an opportunity to lead their evidence. No party or litigant shall
go out of the Court under impression that he has not been
provided sufficient opportunity to put forth his case or to
defend his case.
6. In the instant case, the plaintiff completed his
evidence on 25.05.2023 and the suit was set down for
defendants' evidence on 13.06.2023, on which date, the trial
Court has taken evidence of defendants as nill. In the facts
and circumstances of the case, I am of the view that
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petitioners/defendants would be entitled for one opportunity to
lead their evidence. Hence, the following:
ORDER
(i) Impugned order dated 31.10.2023 in
O.S.No.388/2013 on the file of I Additional Civil
Judge, Junior Division, Malavalli, is set aside.
Consequently, I.A. filed under Section 151 of CPC,
to reopen the stage and seeking permission to lead
defendants' evidence is allowed and defendants are
permitted to lead their evidence.
(ii) The submission of the learned counsel for the
petitioners that the defendants would lead their
evidence within 15 days from today is placed on
record.
(iii) The respondent/plaintiff without taking any further
adjournment, shall cross-examine the defendants
witness.
(iv) With the above, writ petition stands disposed off.
Sd/-
JUDGE
SMJ
