Karnataka High Court
Sri. Suresh Kumar S/O Moolaram Parmar vs Smt. Suman W/O Suresh Kumar Parmar on 25 November, 2024
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NC: 2024:KHC-D:17215
WP No. 106292 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.106292 OF 2024 (GM-CPC)
BETWEEN:
SRI SURESH KUMAR S/O. MOOLARAM PARMAR,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: CTS NO. 87-A, GIRIJA SHANKAR APARTMENT,
FLAT NO. 102/B, 1ST FLOOR, MANGALWAR PETH,
TILAKWADI, BELAGAVI - 590 006.
...PETITIONER
(BY SRI SACHIN CHAWAN, ADVOCATE)
AND:
1. SMT. SUMAN W/O. SURESH KUMAR PARMAR,
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O: CTS NO. 87-A, GIRIJA SHANKAR APARTMENT,
FLAT NO. 102/B, 1ST FLOOR, MANGALWAR PETH,
TILAKWADI, BELAGAVI - 590 006.
2. SMT. HANJA DEVI W/O. RARACHAND RATHOD,
AGE: 66 YEARS, OCC: HOUSEHOLD,
Digitally signed
by SAROJA
HANGARAKI
R/O: CTS NO. 87-A, GIRIJA SHANKAR APARTMENT,
Location: High FLAT NO. 102/B, 1ST FLOOR, MANGALWAR PETH,
Court of
Karnataka TILAKWADI, BELAGAVI - 590 006.
...RESPONDENTS
(BY SMT. ARADHANA V. MANVI, ADVOCATE FOR R1)
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 PASSED IN I.A.NO.9
AND 10 OF 2024 UNDER ORDER 18 RULE 17 R/W SECTION 151 OF
CODE OF CIVIL PROCEDURE, BY THE PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, BELAGAVI, IN O.S.NO. 208/2021 DATED
27-08-2024 VIDE ANNEXURE-E., WHEREIN I.A. NO.9 AND 10 ARE
REJECTED AND ETC.,
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WP No. 106292 of 2024
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present writ petition is filed challenging the order
dated 27.08.2024 passed on I.A.No.9 and 10 in
O.S.No.208/2021 on the file of the Principal Senior Civil
Judge and CJM, Belagavi1.
2. The relevant facts leading to the present
writ petition are that the petitioner instituted a suit in
O.S.No.208/2021 seeking for partition and other reliefs
wherein the respondents herein are arrayed as defendants.
The petitioner is the husband of respondent No.1. The
defendants entered appearance and contested the suit. The
petitioner filed I.A.No.9 under Order XVIII Rule 17 read with
Section 151 of the Code of Civil Procedure, 19082 to recall
DW1 for further cross-examination as well as I.A.No.10
under Section 151 of CPC to recall the stage of the suit. The
Hereinafter referred to as "the Trial Court"
Hereinafter referred to as "CPC"
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said application was objected to by the respondent No.1. The
Trial Court by its order dated 27.08.2024 dismissed the said
applications. Being aggrieved, the present writ petition is
filed.
3. Heard submissions of learned counsel Sri.
Sachin Chavan for the petitioner and learned counsel Miss.
Aradhana V Manvi for respondent No.1. Notice to respondent
No.2 is held sufficient.
4. The Trial Court, while rejecting the
applications by the said order dated 27.08.2024, has noticed
that the DW1 was elaborately cross-examined on 08.02.2024
and thereafter DW1 produced a document on 27.02.2024,
which was objected to by the plaintiff and thereafter after
lapse of three months, the applications have been filed. The
Trial Court has further noticed that the defendant No.1 was
examined and documents marked in the year 2023 itself and
that the attempt by DW1 is to only fill up the lacuna in the
evidence on record.
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5. Learned counsel for the petitioner assailing
the reasons recorded by the Trial Court submits that
consequent to the culmination of the cross examination, on
the very next day itself the applications were ready to be
filed. However, due to various reasons, the same could not
be filed. It is further contended that there was no deliberate
delay on the part of the petitioner in filing the said
applications.
6. Per contra, learned counsel for the
respondent No.1, vehemently opposing the present writ
petition, submits that the findings recorded by the Trial Court
that the application is filed merely to fill up the lacuna is just
and proper that the order passed by the trial Court ought not
to be interfered with by this Court.
7. It is relevant to note that after the
culmination of cross-examination of DW1, the petitioner has
filed I.A.No.9 and 10. Although the Trial Court relying on a
judgment of this Court that applications for recall ought not
to be routinely filed and while recording a finding that the
application is filed to fill up the lacuna in the evidence, it is
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forthcoming that the plaintiff has sought to cross-examine
DW1 on certain documents that were filed and it is just and
proper, in the interest of justice, that another opportunity be
granted so as to afford a final opportunity to the plaintiff to
complete the cross-examination of DW1 and the said
opportunity to be granted with some terms.
8. In view of the aforementioned, the
following:
ORDER
i. The writ petition is partly allowed subject to
payment of cost of ₹3000/- payable by the
petitioner/plaintiff to respondent No.1/
defendant No.1.
ii. The order dated 27.08.2024 passed on
I.A.Nos.9 and 10 in O.S.No.208/2021 by
the Principal Senior Civil Judge and CJM,
Belagavi is set aside.
read with section 151 of CPC and I.A.No.10
filed under Section 151 of CPC on the file of
the Principal Senior Civil Judge and CJM,
Belagavi are allowed.
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iv. The petitioner to pay the cost as ordered
above to defendant No.1 on the next date
of hearing before the Trial Court i.e. on
16.12.2024. In the event the defendant
No.1 refuses to receive the cost, the
plaintiff shall deposit the same before the
Trial Court. In the event the plaintiff does
not comply with this order of paying cost on
the next date of hearing i.e., on 16.12.2024
before the Trial Court, he will lose the
benefit of this order.
v. It is made clear that on the date fixed by
the Trial Court for cross-examination of
DW1, the plaintiff shall cross-examine DW1
and pursuant to cross-examination of DW1,
the Trial Court shall proceed further in the
suit in accordance with law.
vi. All contentions of both the parties are left
open.
Sd/-
(C.M. POONACHA)
JUDGE
YAN/CT-ASC
