Karnataka High Court
Smt. K. M. Prema vs Smt. S. Geetha on 16 October, 2024
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NC: 2024:KHC:41906
WP No. 25600 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 25600 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. K.M. PREMA
W/O LATE K. SIDDALINGAIAH,
AGED ABOUT 75 YEARS,
HINDU,
NO.452, 7TH MAIN, 4TH BLOCK,
JAYANAGAR, BANGALORE-560 011.
2. SRI. S. VENKATESH
S/O K. SIDDALINGAIAH ,
HINDU,
AGED ABOUT 53 YEARS,
RESIDING AT NO.452, 7TH MAIN,
4TH BLOCK, JAYANAGAR,
BENGALURU, KARNATAKA -560011.
...PETITIONERS
(BY SRI. AZHAR ALI FAROOQI, ADVOCATE)
AND:
Digitally signed
by
MARKONAHALLI 1. SMT. S. GEETHA
RAMU PRIYA
Location: HIGH W/O SRI K.J. UDAYASHANKAR,
COURT OF HINDU,
KARNATAKA
AGED ABOUT 63 YEARS,
RESIDING AT NO.3619/6,
KODAGAHALLI NILAYA,
2ND CROSS, UMAR QAYYUM ROAD,
BEHIND CANARA BANK,
TILAKNAGAR, MYSORE - 570 021.
SRI SURESH S
S/O LATE K SIDDALINGAIAH,
(SINCE DEAD REPRESENTED BY HIS LRS)
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WP No. 25600 of 2024
2. RAJALAXMI
W/O LATE SURESH S,
AGED ABOUT 58 YEARS,
RESIDING AT NO. 27, 2ND CROSS,
RAMACHANDRA, AGRAHARA,
NEAR TR MILLS, CHAMARAJAPET,
BANGALORE, KARNATAKA - 560011.
3. CHETHAN
S/O LATE SURESH S,
AGED ABOUT 38 YEARS,
RESIDING AT NO. 27, 2ND CROSS,
RAMACHANDRA, AGRAHARA,
NEAR TR MILLS, CHAMARAJAPET,
BANGALORE, KARNATAKA - 560011.
4. S. SHREYAS
S/O LATE SURESH,
RESIDING AT NO. 27, 2ND CROSS,
RAMACHANDRA, AGRAHARA,
NEAR TR MILLS, CHAMARAJAPET,
BANGALORE, KARNATAKA - 560011.
5. SMT. S. VIJAYALAKSHMI
C.R. SURESH,
HINDU,
AGED ABOUT 56 YEARS,
RESIDING AT NO.45, 5TH CROSS,
MATHIKERE, H.M.T. LAYOUT,
BANGALORE - 560 054.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 08.08.2024 PASSED IN OS NO.5510/2007
(IMPUGNED ORDER) BY THE HON'BLE XIX ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH-18), PRODUCED AS ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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WP No. 25600 of 2024
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The defendant Nos.1 and 3 in O.S.No.5510/2007 pending
trial before the XIX Additional City Civil and Sessions Judge,
Bengaluru (henceforth referred to as 'Trial Court') have filed
this writ petition, challenging an order dated 08.08.2024 by
which, applications (I.A.Nos.52 and 53) filed by the plaintiffs to
reopen the case and to recall DW.1 for further cross-
examination were allowed.
2. The parties shall henceforth be referred to as they
were arrayed before the Trial Court. The petitioners were the
defendant Nos.1 and 3. The respondent No.1 was the plaintiff
No.1, while the respondent No.5 was the plaintiff No.2 and
other respondents were the defendant Nos.2(a) to 2(c).
3. The suit in O.S.No.5510/2007 was filed for partition
and separate possession of the plaintiffs' share in the suit
schedule properties. They claimed that the suit properties were
the self-acquisition of their father Sri. K. Siddalingaiah and that
for the sake of convenience, some properties were purchased in
the names of the family members namely, the defendant Nos.1
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and 2 and also in the names of his first wife Smt. K.M.
Lakshmamma and his second wife Smt. K.M. Prema. They
therefore, contended that upon the death of Sri. K.
Siddalingaiah, they were entitled to an equal share in all the
properties and that their demand for partition was refused by
the defendants and hence, they were advised to file a suit for
partition.
4. The suit was contested by the defendants, who
denied the entitlement of the plaintiffs for a share in the suit
schedule properties. Based on these contentions, the suit was
set down for trial after issues were framed.
5. After conclusion of the evidence of the plaintiffs and
the defendants and when the case was set down for
arguments, the plaintiffs filed I.A.No.52 under Section 151 of
CPC and I.A.No.53 under Order XVIII Rule 17 of CPC to recall
DW.1 for further cross-examination. They declared in the
affidavits accompanying the applications that certain important
questions were left out by oversight and certain documents
ought to have been confronted to DW.1. They also claimed that
their advocate was not well for some time and was under
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treatment as he had suffered heart attack and therefore, DW.1
could not be effectively cross-examined.
6. These applications were resisted by the defendant
No.1, who contended that the applications were not
maintainable but were filed to drag on the proceedings. She
contended that the plaintiffs did not indicate as to the aspects
on which DW.1 had to be further cross-examined and the
nature of documents that had to be confronted to DW.1.
7. The Trial Court in terms of the impugned order,
allowed the applications holding that the plaintiffs had
contended that on the date of cross-examination of DW.1, their
advocate was hospitalized since he had suffered a heart attack
and that the plaintiffs could not come from Mysuru and
therefore, they could not effectively cross-examine DW.1. The
Trial Court held that though the plaintiffs did not produce any
documents in support of the said contentions, having regard to
the facts and circumstances of the case, the defendants would
not be put to any hardship, if DW.1 was permitted to be cross-
examined further. Therefore, the Trial Court allowed the
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applications on payment of cost of Rs.1,000/- and directed the
plaintiffs to cross-examine DW.1 on the next date without fail.
8. Being aggrieved by the said order, the defendant
Nos.1 and 3 are before this Court in this writ petition.
9. The learned counsel for the defendant Nos.1 and 3
contended that the plaintiffs had substantially cross-examined
DW.1 and therefore, there was no need for any further cross-
examination. He contends that the applications filed were
designed to protract the proceedings. Further, he contends that
the plaintiffs did not disclose the need for further cross-
examination of DW.1. He submits that in view of the law laid
down by the Hon'ble Apex Court in the case of Ram Rati vs.
Mange Ram and others [AIR 2016 SC 1343], the plaintiffs
were bound to disclose the reasons for recalling DW.1 for
further cross-examination and that the Trial Court did not even
cursorily look into the judgment cited. He therefore, contends
that the impugned order passed by the Trial Court may be set
aside.
10. I have considered the submissions made by the
learned counsel for the defendant Nos.1 and 3. I have also
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perused the impugned order as well as the pleadings before the
Trial Court.
11. It is the contention of the plaintiffs that their
advocate had suffered a heart attack and that he could not
effectively cross-examine DW.1. Though the plaintiffs had not
produced any documents in support of their claim but yet, since
the advocate for the plaintiffs had himself drafted the affidavits,
it is quite possible that the advocate for the plaintiffs was
prevented from sufficient cause in effectively cross-examining
DW.1. Having said that, the plaintiffs were indeed bound in law
to disclose the reasons for further cross-examining DW.1. It is
trite that once the evidence of the parties is concluded, an
application for recalling the witness, cannot be allowed for the
mere asking and in a mundane manner. The person seeking
recalling a witness is bound to broadly disclose for what
purpose the witness has to be recalled. In the case on hand,
there are no reasons mentioned by the plaintiffs for further
cross-examining DW.1. On the contrary, they have made an
omnibus statement that their advocate, who had suffered a
heart attack, was not in a position to effectively cross-examine
DW.1. In view of the fact that the suit is filed in the year 2007,
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it is appropriate to not allow further procrastination of the case
by entertaining this writ petition.
12. In that view of the matter, this writ petition is
dismissed. However, the Trial Court is directed to ensure that
DW.1 is cross-examined on the next date of hearing without
fail. The Trial Court is also directed not to entertain any further
application at the instance of the plaintiffs to recall any of the
witnesses already cross-examined by them. The Trial Court is
requested to proceed to dispose off the suit in accordance with
law after hearing the parties and in accordance with the
Karnataka (Case Flow Management in Subordinate Courts)
Rules, 2005).
Sd/-
(R. NATARAJ)
JUDGE
PMR
