Allowed

Shivaram @ Shiva Reddy v. Sri Ashwath Narayana Reddy

Karnataka HC18 Apr 2022WP/3796/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka set aside the trial Court order dismissing applications to recall a witness for fresh cross-examination. It permitted such examination subject to payment of Rs.5,000 costs and directed expedited disposal of the pending suit.

What did the court decide?

Set aside impugned order; permit cross-examination of DW-1 by petitioner upon payment of Rs.5,000 costs; direct expedited hearing of original suit.

Shivaram @ Shiva Reddy Vs Sri Ashwath… — Civil Procedure and Limitation | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH WRIT PETITION NO.3796 OF 2021 (GM-CPC)

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BETWEEN:

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SHIVARAM @ SHIVA REDDY S/O SUBI REDDY, AGED ABOUT 58 YEARS RESIDING AT GANDRAJAPALLI VILLAGE, GOWNAPALLI POST, RAYALPAD HOBLI, SRINIVASAPURA TALUK, KOLAR DISTRICT-563 135.

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...PETITIONER

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(BY SRI. BHADRINATH R., ADVOCATE)

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AND:

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SRI. ASHWATH NARAYANA REDDY S/O K.S.BAYA REDDY

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AGED ABOUT 56 YEARS

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RESIDING AT GANDARAJAPALLI VILLAGE, GOWNAPALLI POST, RAYALPAD HOBLI, SRINIVASPURA TALUK,

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KOLAR DISTRICT-563 135.

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SRI. BHASKAR S/O SUBI REDDY AGED ABOUT 53 YEARS RESIDING AT GANDARAJAPPALI VILLAGE, GOWNAPALLI POST, RAYALPAD HOBLI, SRINIVASPURA TALUK, KOLAR DISTRICT-563 135.

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….RESPONDENTS

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(BY SRI. A.C. BALARAJ, ADVOCATE FOR R2; R1 IS SERVED - UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED COMMON ORDER DATED 25^TH JANUARY, 2021 PASSED ON IA.XVII AND XVIII IN ORIGINAL SUIT NO.252 OF 2013 BY THE ADDITIONAL CIVIL JUDGE AND JMFC., SRINIVASPUR VIDE ANNEXURE-A; AND ETC.

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THIS PETITION COMING ON FOR ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This writ petition is filed by the plaintiff in Original Suit No.252 of 2013 on the file of the Additional Civil Judge and JMFC., Srinivasapur (for short, hereinafter referred to as ‘trial Court’), assailing the order dated 25^th January, 2021 passed on IAs.XVII and XVIII.

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Relevant facts for adjudication of this writ petition are that, the plaintiff has filed suit against the defendants seeking relief of declaration and consequential relief of permanent injunction. In the said suit, defendants entered appearance and filed affidavit in lieu of the evidence of DW-1. Thereafter, DW-1 was present before the trial Court on several occasions for offering cross-examination.

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However, the plaintiff has not cross-examined the DW-1. Accordingly, the trial Court posted the suit for arguments on 07^th March, 2020. Thereafter, the plaintiff had filed an application in IA.XVII to recall DW-1 and to permit him to further cross-examine DW-1 and also filed IA.XVIII to reopen the stage of crossexamination of the defendant No.1 and permit the plaintiff to crossexamine DW-1. The said applications were resisted by defendants. The trial Court, after considering the material on record, by order dated 25^th January, 2021, dismissed the said applications. Feeling aggrieved by the same, the plaintiff has preferred this writ petition.

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Sri. Bhadrinath R., learned counsel appearing for petitioner contended that the plaintiff has given cogent reasons for not cross-examining DW-1 during the COVID-19 pandemic. Therefore, the trial Court ought to have considered the same liberally and allowed the applications filed by the plaintiff.

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Per contra, Sri. A.C. Balaraj, learned counsel appearing for respondent No.2 sought to justify the impugned order passed by the trial Court and contended that DW-1 was present before the trial Court on several occasions to offer cross-examination.

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However, the plaintiff, deliberately not cross-examined DW-1 and protracted the proceedings. Therefore, he contended that, the trial Court is justified in rejecting applications.

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In view of the arguments advanced by learned counsel appearing for parties, on careful examination of writ papers, the same would indicate that the plaintiff has filed suit seeking declaration and consequential relief against the defendants. Defendant No.2 has filed an affidavit in lieu of the chief examination as DW-1 on 30^th August, 2019. Thereafter, the case was listed before the trial Court on three occasions. However, the plaintiff has not cross-examined DW-1. I have carefully considered the averments made in the affidavit accompanying the applications in IAs.XVII and XVIII. Taking into account the fact that on account of COVID-19 Pandemic, the plaintiff was not able to cross-examine DW-1, and to meet the ends of justice, order dated 25^th January, 2021 is set aside and the plaintiff is permitted to cross-examine the DW-1 on the next date of hearing without fail. I have also find force in the submission made by learned counsel Sri. A.C. Balaraj that the DW-1 was present before the trial Court for four to five

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occasions, however, he was not cross-examined by the plaintiff and in order to compensate the same, the plaintiff is permitted to crossexamine the DW-1, subject to payment of cost of Rs.5,000/- to DW-1 by next date of hearing before the trial Court. The trial Court shall permit the plaintiff to cross-examine DW-1 only after payment of cost. Accordingly, writ petition is disposed of.

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Sri. Bhadrinath R., learned counsel appearing for petitioner submitted that, pursuant to the order dated 22^nd February, 2021 passed by this Court, the petitioner has deposited Rs.5,000/- before this Court. If such being the case, learned counsel appearing for respondent is permitted to withdraw the same.

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As the suit is of the year 2013, the trial Court is directed to expedite the hearing and dispose of the suit at the earliest taking into consideration the circular issued by this Court.

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Sd/JUDGE

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ARK

Shivaram @ Shiva Reddy v. Sri Ashwath Narayana Reddy

Case brief

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Shivaram @ Shiva Reddy v. Sri Ashwath Narayana Reddy

Case brief

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