Allowed

Sri. Raghupathy v. Smt. Saraswathamma

Karnataka HC22 Aug 2014WP/40124/2014

Case brief

AI extract

What is this about?

Revisional writ petitions filed to quash an order closing witness evidence due to counsel absence. High Court allowed petitions, directing parties to proceed on next hearing date subject to payment of costs to the witness to compensate for inconvenience.

What did the court decide?

Writ petitions allowed; matter directed to be proceeded on 1.9.2014 subject to payment of Rs.5,000 costs to DW1 and plaintiffs bound to cross-examine.

Sri. Raghupathy Vs Smt. Saraswathamma — Partition | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 22^ND DAY OF AUGUST 2014

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BEFORE

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THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY WRIT PETITION NOS.40124 – 40125 OF 2014 [GM, CPC]

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Between:

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Sri Raghupathy, Son of late V.D.Rangappa, Aged about 61 years.

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Smt.Parvathamma,

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Wife of Devadas, Aged about 57 years.

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Both are residing at C-160/15, 1^st Main Road, Ramachandrapura, Bangalore – 560 021.

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Smt.Shamala.D,

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Wife of G.Mohan Kumar, Daughter of Devadas, Residing at C/o Muniswamy reddy Building, Janatha Colony, Sarjapura Road, Dommasandra, Bangalore – 562 125.

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…Petitioners

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(By: Sri Mohan Bhat, Advocate)

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And:

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Smt.Saraswathamma, Since dead by Lrs. Who are other Respondents herein

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Sri Venkatesh, Son of V.D.Rangappa, Aged about 56 years.

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Sri Ramesh, Son of V.D.Rangappa, Aged about 54 years.

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Respondent No.2 and 3 both are Residing at No.C-160/15, 1^st Main Road, Ramachandrapura, Bangalore – 560 021.

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Smt.Radhamma, Wife of Ramanarashimaiah, Daughter of late V.D.Rangappa, Aged about 68 years, Residing at Ranganathaswamy Enterprises, Thali Road, Anekal Taluk, Anekal – 562 106, Bangalore District.

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Smt.Sharadamma, Wife of Narayanappa, Daughter of late V.D.Rangappa, Aged about 63 years, Residing at Govt. Hospital Quartors, Sidlaghatta, Sidlaghatta Taluk – 562 105 Kolar District.

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Smt.V.R.Kowsalya, Wife of Narashimha, Daughter of Late V.D.Rangappa, Aged about 51 years, Residing at No.200/24, 1^st Main Road, 5^th Cross, Agrahara Badavane Jakkur Post, Yelahanka, Bangalore – 560 064.

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Smt.Padmavathi, Wife of Narayanaswamy, Daughter of Late V.D.Rangappa, Aged about 48 years, Residing at No.C-160-15, 1^st Main Road, Ramachandrapura, Bangalore – 560 021.

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Sri Dasarathappa, Son of late V.D.Rangappa, Aged about 66 years,

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Residing at No.C-160/15, 1^st Main Road, Ramachandrapura, Bangalore – 560 021. … Respondents

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(Notice to respondents is dispensed with Vide order dated 22.8.2014)

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These writ petitions are filed under Article 226 and 227 of the Constitution of India praying to quash the impugned order dated 13.3.2014 in O.S.No.4990/2003 passed by the learned XLIII Addl. City Civil and Session Judge, Bangalore on IA No.20 and 21 vide Annexure – G and etc.

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These Writ Petitions coming on for preliminary hearing this day, the court made the following:

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O R D E R

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Heard the learned counsel for the petitioners The petition coming on for preliminary hearing is considered for final disposal as the circumstances warrant that these petitions be disposed of forthwith and accordingly, notice to the respondents is dispensed with.

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The petitioners are plaintiff Nos.2 to 4 before the Trial Court in a suit for partition and separate possession. It transpires that when the matter was posted for crossexamination of DW1 on 3.2.2014, counsel for the plaintiffs, namely, the petitioners herein, had appeared before the Court in the first round and the matter was passed over for cross-

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examination of DW1. However, when the matter was called out in the second round, the counsel was unable to be present, as he is said to have been held up in some other Court. Therefore, the Court below had proceeded to hold that the counsel has remained absent and closed the evidence of DW1 and noted that there is no evidence of other defendants and posted the matter for final arguments.

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The Court below has taken exception to the circumstance that though DW1 was recalled on an application filed by the plaintiff Nos.2 to 4 on 13.1.2014 and the matter was listed on 20.1.2014 for defendant’s evidence, DW1 was not cross-examined on the ground that plaintiff could not give instructions to his counsel as he (plaintiff) was not well. The matter was then adjourned to 3.2.2014 and the Trial Court has opined that it was incumbent on the plaintiffs to be present in Court when the matter was called out. Since the case was of the year 2003, the Court has taken exception as to the conduct of the plaintiffs and has held that the ground that the counsel was held up in some other Court is no ground at all and has proceeded to hold that the application to recall DW1 and other

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defendants was not maintainable and has dismissed the same. It is this order, which is under challenge in these writ petitions.

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While this Court is aware that time and again

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counsel do not appear before Courts on the footing that they are busy elsewhere and even though it is not a ground on which the matters could be adjourned or the counsel could be given a long rope, the circumstances of the present case on hand was that it was the plaintiffs, who were seeking to cross-examine DW1 and since the counsel for DW1 himself did not have any objection to some time being granted to cross-examine the witnesses, the Court having taken exception also cannot be found fault with. However, the interests of justice require that the plaintiffs be permitted to cross-examine DW1 on terms so that the inconvenience and effort that would be caused to DW1 to appear before the Court, etc. can be recompensed , if appropriate costs are awarded. Therefore, it would be necessary to place the plaintiffs on terms to cross-examine DW1. On the next date of hearing, if he seeks further adjournment or in the event, the Court below does not have time and if the evidence of the DW1 cannot be recorded on the

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very day, it is possible for the Court to adjourn the case to some other day, the plaintiff is bound to cross-examine on such other day. With that observation and on imposition of costs of Rs.5,000/- (rupees five thousand only) payable to DW1, these petitions are allowed.

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Since the matter stands posted before the Court below on 25.8.2014, the Court below is directed to post the matter on 1.9.2014 to enable the defendant No.1 to be present before the Court and the plaintiff shall cross-examine DW1 on the said date. If it is not possible to cross-examine DW1 on the said date, the Court shall adjourn the case to some other day and on that day, the plaintiffs are bound to cross-examine DW1 and record the evidence. The plaintiffs shall pay the costs as directed on 25.8.2014.

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Sd/JUDGE

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VGR

Sri. Raghupathy v. Smt. Saraswathamma

Case brief

What is this about?

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Sri. Raghupathy v. Smt. Saraswathamma

Case brief

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