Karnataka High Court
Basangouda Ninganagouda Fakkirgoudar ... vs Basangouda S/O. Parvatgouda on 29 February, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:4704
WP No. 104174 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 104174 OF 2023 (GM-CPC)
BETWEEN:
1. BASANGOUDA NINGANAGOUDA
FAKKIRGOUDAR @ PATIL,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O. SHIRUR-581113,
TQ: KUNDAGOL,
DIST: DHARWAD.
2. RUDRAGOUDA NINGANAGOUDA
FAKKIRGOUDAR @ PATIL,
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O. SHIRUR-581113,
TQ: KUNDAGOL,
DIST: DHARWAD.
3. SHIDDRAMGOUDA NINGANAGOUDA
FAKKIRAGOUDAR @ PATIL,
AGE: 47 YEARS,
BHARATHI
HM OCC: AGRICULTURE,
R/O. SHIRUR-581113,
TQ: KUNDAGOL,
Digitally signed by
BHARATHI H M
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
Date: 2024.03.05
DIST: DHARWAD.
14:48:41 +0530
...PETITIONERS
(BY SRI PUNEET BADIGER, ADVOCATE FOR
SRI LAXMAN T.MANTAGANI, ADVOCATE)
AND:
1. BASANGOUDA
S/O. PARVATGOUDA FAKKIRAGOUDAR @ PATIL,
AGE: 79 YEARS,
OCC: AGRICULTURE,
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NC: 2024:KHC-D:4704
WP No. 104174 of 2023
R/O. SHIRUR-581113,
TQ: KUNDAGOL, DIST: DHARWAD.
2. KALLANGOUDA
S/O. PARVATGOUDA FAKKIRAGOUDAR @ PATIL,
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O. SHIRUR-581113,
TQ: KUNDAGOL, DIST: DHARWAD.
3. TAKANGOUDA
S/O. PARVATGOUDA FAKKIRAGOUDAR @ PATIL,
AGE: 73 YEARS, OCC: RTD. EMPLOYEE,
R/O. SHIRUR-581113,
TQ: KUNDAGOL, DIST: DHARWAD.
4. SHANKARGOUDA
S/O. PARVATGOUDA FAKKIRAGOUDAR @ PATIL,
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O. SHIRUR-581113,
TQ: KUNDAGOL, DIST: DHARWAD.
5. RAMANGOUDA
S/O. PARVATGOUDA FAKKIRAGOUDAR @ PATIL,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. SHIRUR-581113,
TQ: KUNDAGOL, DIST: DHARWAD.
6. MALLANGOUDA
S/O. PARVATGOUDA FAKKIRAGOUDAR @ PATIL,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O. SHIRUR-581113,
TQ: KUNDAGOL, DIST: DHARWAD.
...RESPONDENTS
(BY SMT.P.R.BENTUR, ADVOCATE FOR R1 TO R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED:
26/06/2023 ONLY IN SO FAR AS POSTING THE MATTER FOR
JUDGMENT BY 13/07/2023 IN O.S.NO.53/2019 PASSED BY THE
COURT OF CIVIL JUDGE AND J.M.F.C., KUNDAGOL VIDE
ANNEXURE-C.
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NC: 2024:KHC-D:4704
WP No. 104174 of 2023
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed seeking for following reliefs:
a. Issue a writ of certiorari quashing the
impugned order dated: 26/06/2023 only in so far
as posting the matter for judgment by 13/07/2023
in O.S.no.53/2019 passed by the Court of Civil
Judge and JMFC, Kundagol vide Annexure-C.
2. Sri Puneet Badiger, learned counsel appearing for
Sri Laxman T.Mantagani, learned counsel for petitioners
submitted, petitioners were defendants in O.S.no.53/2019
on file of Civil Judge and J.M.F.C., Kundgol seeking for relief
of permanent injunction. In said suit, defendants had
entered appearance and filed written statement. It was
submitted, when plaintiff no.1 examined himself as PW1,
petitioners herein could not cross-examine him.
Consequently, Trial Court had closed plaintiffs' evidence and
posted matter for defendants' evidence. On 07.12.2022
counsel for defendants was absent. Matter was called out,
defendants' evidence taken as nil and posted matter for
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arguments on 09.12.2022. It was submitted, learned Trial
Judge thereafter on 09.12.2022 recorded absence of both
parties, taken arguments as nil and posted for judgment by
14.12.2022. Thereafter, case was advanced on application
filed by defendants. Along with application filed I.A.no.IV
under Order XVIII Rule 17 of C.P.C. for recall of PW1.
However Trial Court did not heard matter on said application.
In meanwhile, there was change of Presiding Officer on
15.12.2022. It is alleged that thereafter subsequent
Presiding Officer without hearing parties afresh had straight
away posted matter for judgment on 13.07.2023 by
rejecting I.A.nos.IV and V filed by petitioners herein. It was
submitted that reasons assigned for rejecting application
were untenable and therefore sought for allowing writ
petition, quashing said orders and for permitting petitioners
to cross-examine PW1.
3. On other hand, Smt.P.R.Bentur, learned counsel
for respondents no.1 to 6 sought to oppose writ petition. It
was firstly submitted though there was change of Presiding
Officer on 15.12.2022, subsequent Presiding Officer had
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infact heard counsel for defendants as recorded in order
sheet dated 11.01.2023. Thereafter matter was adjourned
on several dates of hearing. Ultimately on 26.06.2023, Trial
Court took up I.A.nos.4 and 5, rejected them and posted
matter for judgment. Therefore, petitioners' main contention
that petitioners were not heard before matter was posted for
judgment was untenable and sought for dismissal of writ
petition.
4. Heard learned counsel and perused writ petition
records.
5. From above, main ground on which order
impugned is questioned is that there was change in Presiding
Officer and without posting matter for hearing, subsequent
Presiding Officer had straight away ordered matter for
judgment. Perusal of order sheet dated 07.12.2022 and
09.12.2022 would indicate that after closure of plaintiffs'
evidence, defendant was called out found absent, evidence
taken as nil and after hearing counsel for plaintiffs,
defendants' side argument taken as nil and matter was
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posted for judgment by 14.12.2022. I.A.no.IV under Order
XVIII Rule 17 C.P.C. for recall of PW1 was filed on
13.12.2022 by advancing date. However, order sheet dated
11.01.2023 reveals that Sri PKH Advocate for defendants
was heard, while, Sri PSP Advocate for plaintiffs had sought
time. Thereafter matter was adjourned for hearing of
plaintiffs on several dates. Though order passed on
I.A.nos.IV and V after matter was heard on 11.01.2023, fact
would remain that I.A.nos.IV and V were filed prior to
change of Presiding Officer. Therefore, as on date when
Presiding Officer posted matter for judgment, I.A.no.IV was
already filed and matter was listed for hearing on said
application. Therefore, main reason assigned by Trial Court
for rejecting said application that was filed after posting
matter for judgment and no application could be entertained,
would be contrary to fact. Consequently, said order would be
untenable. But perusal of order sheet would indicate certain
extent of lethargy on part of petitioners herein. Delay due to
interim order granted in this petition, as well as dilation due
to petitioners seeking time before Trial Court would have
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caused hardship upon respondents, which could be satisfied
by imposing cost. Consequently, following:
ORDER
i. Writ petition is allowed.
ii. Order dated 26.06.2023 passed on I.A.nos.IV
and V is set aside, on condition of defendants
paying cost of Rs.5,000/- to plaintiffs on next
date of hearing or within 15 days from today,
whichever is later.
iii. PW1 shall be present on next date of hearing or
on such date to which it is adjourned and be
available for purposes of cross-examination by
defendants. Petitioners shall conclude cross-
examination as far as possible within two
weeks. Thereafter, Trial Court is directed to
proceed with matter in accordance with law.
iv. Petitioners and respondents are directed to
co-operate for early disposal of suit without
seeking unnecessary adjournments.
Sd/-
JUDGE
