Karnataka High Court
Sri Siddarangaiah vs Sri Gangarangaiah on 24 October, 2024
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NC: 2024:KHC:42791
WP No. 17489 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 17489 OF 2024 (GM-CPC)
BETWEEN:
SRI. SIDDARANGAIAH
S/O. LATE RANGAIAH
AGED ABOUT 65 YEARS.
R/O. KALLUPALYA VILLAGE, GULUR HOBLI,
TUMKUR TQ. AND DIST.-572 118.
...PETITIONER
(BY SRI. MALIPATIL P.S., ADVOCATE)
AND:
1. SRI GANGARANGAIAH
S/O. LATE THIMMARAYAPPA,
AGED ABOUT 70 YEARS,
R/O. KALLUPALYA VILLAGE,
GULUR HOBLI,
TUMKUR TQ. & DIST.-572 118.
2. SRI. SIDDARANGAIAH,
Digitally signed S/O. LATE THIMMARAYAPPA,
by
MARKONAHALLI AGED ABOUT 75 YEARS,
RAMU PRIYA R/O. KALLUPALYA VILLAGE,
Location: HIGH GULUR HOBLI,
COURT OF
KARNATAKA TUMKUR TQ. & DIST.-572 118.
SMT. CHIKKATHIMMAKKA,
SINCE DEAD REPRESENTED BY HER 1ST SON,
SRI. PATEL DASEGOWDA,
SINCE DEAD BY HIS LRS-
3. SRIRANGAIAH,
S/O. LATE PATEL DASEGOWDA,
AGED ABOUT 58 YEARS,
R/AT NO.22, 3RD CROSS,
4TH MAIN ROAD,
CHAMARAVINAGARA,
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PEENYA II STAGE,
BENGALURU-560 058.
SECOND SON - CHENNAPPA,
SINCE DEAD BY HIS LRS
4. SRI. MUKUNDAIAH,
S/O. LATE CHENNAPPA,
AGED ABOUT 65 YEARS.
R/AT KALLUPALYA VILLAGE,
GULUR HOBLI, TUMAKURU TQ.-572 118.
5. SRI. RANGASWAMAIAH,
S/O. LATE CHENNAPPA,
AGED ABOUT 63 YEARS.
R/AT KALLUPALYA VILLAGE,
GULUR HOBLI,
TUMAKURU TQ.-572 118.
6. SRI. NAGAIAH,
S/O. LATE CHENNAPPA,
AGED ABOUT 62 YEARS.
R/AT KALLUPALYA VILLAGE,
GULUR HOBLI, TUMAKURU TQ.-572 118.
3RD DAUGHTER OF THIMMAHANUMAKKA,
SINCE DEAD BY HER LRS
7. SMT. SIDDALINGAMMA,
W/O. R. DODDAMMA,
AGED ABOUT 65 YEARS,
R/AT NO.1201/70/1,
VENKATESHWARA LAYOUT,
SUDDAGUNTEPALYA, HOSUR ROAD,
BESIDE DHARMAVARAM COLLEGE,
D.R.C. POST, BENGALURU-560 029.
4TH SON CHIKKATHIMMAIAH
SINCE DEAD BY HIS LRS
8. SRI. UDAYAKUMAR,
S/O. LATE CHIKKATHIMMAIAH,
AGED ABOUT 55 YEARS
R/AT KALLUPALYA VILLAGE,
GULUR HOBLI, TUMAKURU TQ.-572 118.
9. SRI. GOVINDARAJU,
S/O. LATE CHIKKATHIMMAIAH,
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AGED ABOUT 53 YEARS.
R/AT KALLUPALYA VILLAGE,
GULUR HOBLI, TUMAKURU TQ.-572 118.
10. SRI. RAMAKRISHNAIAH,
S/O. LATE CHIKKATHIMMAIAH,
AGED ABOUT 50 YEARS.
R/AT KALLUPALYA VILLAGE,
GULUR HOBLI, TUMAKURU TQ.-572 118.
11. SMT. YASHODHAMMA,
D/O. LATE CHIKKATHIMMAIAH,
W/O. G. MURTHY,
AGED ABOUT 60 YEARS,
R/AT WARD NO.2, HOUSE NO.363,
3RD CROSS, GANGADHARAPURA,
DODDABALLAPURA TOWN-561 203.
12. SMT. SUNANDA,
D/O. LATE CHIKKATHIMMAIAH,
W/O. MALLESH,
AGED ABOUT 40 YEARS,
R/AT. KODIHALLI VILLAGE, BISKUR POST,
KUDUR HOBLI, MAGADI TQ.,
RAMANAGARA DIST.-562 120.
13. SMT. KANTHAMMA,
D/O. LATE CHIKKATHIMMALAH,
W/O. PUTTAREVALAH,
AGED ABOUT 38 YEARS,
R/AT. SHANAMANGALA VILLAGE,
BIDADI HOBLI, MAGADI TQ.,
RAMANAGARA DIST.-562 120.
5th DAUGHTER GANGAMMA,
SINCE DEAD BY HER LRS
14. SRI. MUNISWAMAIAH,
S/O. LATE GOVINDAIAH
LATE GANGAMMA,
SINCE DECEASED BY LRS
15. SMT. LAKSHMIDEVAMMA,
W/O. LATE MUNISHAMAIAH,
AGED ABOUT 68 YEARS.
R/AT CHIKKASOLURU VILLAGE,
GUDIMARANAHALLI POST,
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WP No. 17489 of 2024
SOLURU HOBLI, MAGADI TQ.,
RAMANAGARA DIST.-562 120.
16. SRI. SRINIVASA M.,
S/O. LATE MUNISHAMAIAH,
AGED ABOUT 43 YEARS.
R/AT CHIKKASOLURU VILLAGE,
GUDIMARANAHALLI POST,
SOLURU HOBLI, MAGADI TQ.,
RAMANAGARA DIST.-562 120.
17. SRI. MANJUNATHA M.,
S/O. LATE MUNISHAMAIAH,
AGED ABOUT 41 YEARS
R/AT CHIKKASOLURU VILLAGE,
GUDIMARANAHALLI POST,
SOLURU HOBLI, MAGADI TQ.,
RAMANAGARA DIST.-562 120.
18. SRI. SURESH,
S/O. LATE GOVINDAIAH AND LATE GANGAMMA,
AGED 70 YEARS,
R/O WARD NO.2, HOUSE NO.363,
3RD CROSS, GANGADHARAPURA,
DODDABALLAPURA TOWN-561 203.
6TH SON-VENKATARANGAIAH,
SINCE DECEASED BY HIS LRS
19. SRI. LOKESH @ SRINIVASAMURTHY T.V.,
S/O. LATE VENKATARANGAIAH,
AGED 45 YEARS,
R/O H. NO.12, MARUTI PLAZA,
A SECTOR, ADIKUTEERA,
SAHAKARANAGARA,
BENGALURU-560 092.
20. SMT. LAKSHMAMMA,
D/O. LATE CHIKKATHIMMAKKA,
W/O. RAMAIAH.
SINCE DECEASED BY HER LRS
21. SMT. A.R. SHARADHA,
W/O. LATE RAJASHEKHARAIAH,
AGED ABOUT 50 YEARS,
R/AT MANJUSHREE NILAYA,
ARCATE STREET, GANJAM VILLAGE,
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WP No. 17489 of 2024
SREERANGAPATTANA TQ.,
MANDYA DIST.-571 477.
22. SMT. SUDHA A.R.,
W/O. NAGARAJ, AGED 45 YEARS,
R/O NO.10/4, 4TH MAIN ROAD,
PALACE GUTTAHALLI,
BENGALURU CITY-560 003.
23. SMT. SUJATHA,
W/O. LAKSHMANA, AGED 43 YEARS,
R/AT NO.81/16, 5TH MAIN ROAD,
CHBS EXTENSION, VIJAYANAGARA,
BENGALURU-560040.
8TH SON GOVINDAIAH,
SINCE DECEASED BY LR
24. PUTTARAJU,
S/O. LATE K.T. GOVINDAIAH,
AGED 40 YEARS,
R/O KODIPALYA VILLAGE,
HONNUDIKE POST, GULUR HOBLI,
TUMKUR DISTRICT-572 122.
...RESPONDENTS
(BY SRI. MANOHAR B.K.,ADVOCATE FOR RESPONDENT NOS.1 AND
2;
V/O/DT. 02.08.2024, NOTICE TO RESPONDENT NOS.3 TO 23 ARE
DISPENSED WITH;
V/O/DT.24.10.2024, NOTICE TO RESPONDENT NO.24 IS DISPENSED
WITH)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER
DTD. 25.06.2024 PASSED ON I.A.NO.32 AND I.A.NO. 33 IN
O.S.NO.162/2002 (VIDE ANNX-M) AND ISSUE AN ORDER ALLOWING
THE I.A. NO.32 AND I.A.NO.33 FILED BY THE PLAINTIFF FOR CROSS-
EXAMINATION OF DW1 AND FURTHER, DIRECT THE LEARNED II
ADDL. SR.CIVIL JUDGE AND CJM, TUMKUR TO ALLOW THE PARTIES
TO LEAD EVIDENCE ON ADDITIONAL ISSUE FRAMED IN THE SUIT
VIDE ORDER DTD. 22.06.2024 (ANNX-L) AND ETC.,
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WP No. 17489 of 2024
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The plaintiff in O.S.No.162/2002 on the file of I Additional
Senior Civil Judge, Tumakuru has filed this writ petition
challenging an order dated 25.06.2024, by which,
I.A.Nos.XXXII and XXXIII filed by him under Section 151 of
Civil Procedure Code to recall the stage of the suit and Order
XVIII Rule 17 of Civil Procedure Code to recall DW.1 for further
cross-examination were rejected.
2. The suit in O.S.No.162/2009 was filed for partition
and separate possession of plaintiff's share in the suit schedule
property. The suit after contest was dismissed on 04.04.2016.
Being aggrieved by the said judgment and decree, the plaintiff
filed R.A.No.112/2016.
3. The Appellate Court remitted back the case to the
Trial Court to render its finding on an issue framed by it. This
order of remand was passed in the year 2020. The defendant
No.2 was examined as DW.1 on 08.08.2022. Several
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opportunities were granted to the plaintiff to cross-examine
DW.1. However, the plaintiff did not avail those opportunities.
Hence, the Court took the evidence of DW.1 as 'nil' and posted
the case for arguments.
4. An application was filed by the plaintiff on
02.01.2022 to recall DW.1, which was allowed on payment of
cost of Rs.1,000/- and DW.1 was recalled for further cross-
examination. DW.1 was cross-examined in-part on 12.01.2023.
Despite granting time for further cross-examination of DW.1,
the plaintiff did not cross-examine the witness. Therefore, the
Trial Court posted the case for further cross-examination on
09.03.2024. Even then, till 16.04.2024, the plaintiff did not
avail the opportunities. Therefore, the Trial Court was forced
to treat the further cross-examination of DW.1 as nil and set
down the case for arguments. At that stage, the plaintiff again
filed aforesaid two applications to recall the stage of the suit
and to recall DW.1 for cross-examination. The Trial Court
dismissed both the applications by imposing cost of Rs.2,000/-.
5. Being aggrieved by the same, the plaintiff is before
this Court in this writ petition.
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6. Learned counsel for the plaintiff contended that the
issue framed by the Trial Court pursuant to the order passed by
the Appellate Court was, whether the defendant Nos.1 and 2
prove that the suit properties were divided more than 70 years
ago between father of the defendants namely Thimmarayappa
and father of the plaintiff namely Rangaiah. He contends that
this is a crucial issue and the finding on this issue will
ultimately decide the fate of the plaintiff in regular appeal. He
therefore, contends that a last opportunity be granted to
conclude the cross-examination of DW.1. He submits that
though several opportunities were granted by the Trial Court,
due to reasons beyond his control, the plaintiff could not avail
those opportunities.
7. Learned counsel for the respondent Nos.1 and 2
however opposed the submissions of the learned counsel for
the plaintiff and contended that the order sheet bears
testimony to the fact that substantial opportunities were given
to the plaintiff to further cross-examine DW.1 and the plaintiff
did not take advantage of those opportunities. He therefore,
contends that allowing any further indulgence, would
unnecessarily delay the proceedings in the suit.
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8. I have considered the submissions of the learned
counsel for the plaintiff and the learned counsel for the
defendants.
9. A perusal of the impugned order passed by the Trial
Court shows that the plaintiff despite sufficient opportunities
given to further cross-examine DW.1, did not take advantage of
those opportunities. He did not conclude further cross-
examination of DW.1. Therefore, the Trial Court felt that the
plaintiff was not diligent and hence dismissed the applications
with cost of Rs.2,000/-. The rejection of the applications of the
plaintiff though is justified but yet having regard to the fact
that the First Appellate Court had directed the Trial Court to
record its finding on the additional issue and having regard to
the fact that the finding on the issue framed by the Trial Court
would ultimately decide the fate of the plaintiff in regular
appeal, it is appropriate to grant an opportunity to the plaintiff
to cross-examine DW.1, however, subject to payment of
exemplary cost.
10. In that view of the matter, the writ petition is
allowed. The impugned order dated 25.06.2024 passed by the
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Trial Court is set aside and the applications - I.A.Nos.XXXII and
XXXIII filed under Section 151 and Order XVIII Rule 17 of Civil
Procedure Code respectively are hereby allowed subject to
payment of cost of Rs.10,000/- payable by the plaintiff to the
defendant Nos.1 and 2 before the Trial Court on the next date
of hearing.
11. It is made clear that if the plaintiff does not cross-
examine DW.1 on the next or adjourned date of hearing, and or
does not pay the cost on the next or adjourned date, the Trial
Court shall proceed to answer the issue in accordance with law
and place it before the Appellate Court in accordance with law.
Sd/-
(R. NATARAJ)
JUDGE
HJ
