Allowed

Smt. Rekha W/O Dr. Ramakrishna Nayak v. Smt. Hema W/O Ramakrishna Nayak

Karnataka HC5 Jul 2023WP/103340/2023

Case brief

AI extract

What is this about?

This High Court Writ Petition allowed the petitioners' request to quash a trial order that dismissed applications for cross-examination of a witness (P.W.1). The High Court intervened on the counsel's application, finding the lower court's refusal harsh given the immediate filing of fresh applications for permission.

What did the court decide?

The impugned order dismissing applications I.A.Nos. 12 and 13 was set aside and these applications were allowed, permitting the petitioners to cross-examine P.W.1.

Smt. Rekha W/O Dr. Ramakrishna Nayak Vs… — Civil Procedure and Limitation | Karnataka HC (2023)

¶1

NC: 2023:KHC-D:6679 WP No. 103340 of 2023

¶2

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 5^TH DAY OF JULY, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

¶7

WRIT PETITION NO. 103340 OF 2023 (GM-CPC)

¶8

BETWEEN:

¶9

SMT. REKHA W/O. DR. RAMAKRISHNA NAYAK, AGE: 58 YEARS, OCC: HOUSEHOLD, R/O: GF, ENUKA OPPULANCE, AKSHAY COLONY, NEAR CHETANA COLLEGE LADIES HOSTEL ROAD, VIDYANAGAR, HUBBALLI.

¶10

KUMARI SAIMAA D/O. SMT. REKHA, AGE: 15 YEARS, OCC: STUDENT, R/O: GF, ENUKA OPPULANCE, AKSHAY COLONY, NEAR CHETANA COLLEGE LADIES HOSTEL ROAD, VIDYANAGAR, HUBBALLI.

¶11

ROHAN HADIMANI T Digitally signed byROHAN HADIMANI T Location: High Court of Karnataka, Dharwad

¶12

SINCE PETITIONER NO.2 SHE IS REPRESENTED BY HER NATURAL GUARDIAN PETITIONER NO.1.

¶13

…PETITIONERS

¶14

(BY SRI MALLIKARJUNSWAMY B. HIREMATH AND SRI UMESH P. HAKKARAKI, ADVOCATES)

¶15

AND:

¶16

SMT. HEMA W/O. RAMAKRISHNA NAYAK, CLAIMING TO BE THE WIFE OF RAMAKRISHNA NAYAK, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: NO.02, ARAVIND NAGAR, KARWAR ROAD, OLD HUBBALLI-HUBBALLI-580008.

¶17

2 - NC: 2023:KHC-D:6679 WP No. 103340 of 2023

¶18

PREMSAI S/O. RAMAKRISHNA NAYAK, CLAIMING TO BE SON OF RAMAKRISHNA NAYAK, AGE: 28 YEARS, OCC: STUDENT, R/O: NO.02, ARAVIND NAGAR, KARWAR ROAD, OLD HUBBALLI-HUBBALLI-580008.

¶19

THE CHIEF REGISTRAR AND HEALTH INSPECTOR, ZONE-5, BIRTH AND DEATH DEPARTMENT, HUBLI-DHARWAD, MUNICIPAL CORPORATION, HUBBALLI-580008.

¶20

UNION BANK OF INDIA, EARLIER KNOWN AS CORPORATION BANK, ARAVIND NAGAR, KARWAR ROAD, HUBBALLI, REPRESENTED BY ITS BRANCH MANAGER-580008.

¶21

…RESPONDENTS

¶22

(BY SRI VISHWANATH HEGDE, ADVOCATE FOR RESPONDENT NO.1; RESPONDENT NO.2 IS NOT CLAIMED; NOTICE TO RESPONDENT NOS. 3 AND 4 IS SERVED)

¶23

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI QUASHING THE IMPUGNED COMMON ORDER DATED 23.03.2023 PASSED BY THE PRL. JUDGE FAMILY COURT, HUBBALLI IN O.S.NO.04/2021 ON I.A.NO.12 AND 13 WHICH IS PRODUCED AT ANNEXURE-H AND CONSEQUENTLY ALLOW THE I.A.NO.12 AND 13 FILED BY THE PETITIONER.

¶24

THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

¶25

THE COURT MADE THE FOLLOWING:

¶26

3 - NC: 2023:KHC-D:6679 WP No. 103340 of 2023

¶27

ORDER

¶28

Heard learned counsel Sri Mallikarjunswamy B. Hiremath for the petitioners and learned counsel Sri Vishwanath Hegde, representing respondent No.1, who also accepts notice for respondent No.2.

¶29

With consent of learned counsel for both side, matter is taken up for final disposal.

¶30

This petition is filed by the defendant Nos.1 and

¶31

2 being aggrieved by the impugned order dated 23.03.2023 passed by the Principal Judge, Family Court, Hubballi in O.S.No.4/2021 on I.A.Nos.XII and XIII produced at Annexure-H. Respondent Nos.1 and 2 had filed the suit against the petitioners/defendants for relief of declaration. The petitioners/defendants had appeared

¶32

and filed vakalat and written statement and the matter was posted for evidence and recorded the evidence of P.W.1 on behalf of plaintiffs. On 02.01.2023, when the matter was listed before the Court for cross-examination of P.W.1, the defendants therein could not cross-examine

¶33

4 - NC: 2023:KHC-D:6679 WP No. 103340 of 2023

¶34

the witness P.W.1 as counsel was engaged in another Court. Hence, defendants could not cross-examine P.W.1 and cross-examination of P.W.1 was taken as 'nil' and the matter came to be posted for further evidence of plaintiffs side on 11.01.2023. On the very next date of hearing i.e., on 11.01.2023, the defendants have filed application under Section 151 of the CPC as I.A.No.12 and another application under Order XVIII Rule 17 of CPC as I.A.No.13 to recall the order dated 02.01.2013 and to permit the defendants to cross-examine P.W.1. Objections were filed

¶35

to the said applications, vide common order dated 23.03.2023, the trial Court rejected the both applications on the ground that the defendants did not avail opportunity provided to them and hence they are not entitled to further opportunities as they are dragging on the proceedings. It was also held by the trial Court that maximum opportunity was given to defendants to crossexamine P.W.1 which was not utilized, accordingly, both applications came to be dismissed. Aggrieved by the same, petitioners/defendants are before this Court to set

¶36

5 - NC: 2023:KHC-D:6679 WP No. 103340 of 2023

¶37

aside the common order and permit them to crossexamine P.W.1.

¶38

Learned counsel for the petitioners/defendants contends that the order passed by the Trial Court is erroneous and illegal and same requires to be interfered by this Court for the reason that the defendants had stated in their affidavits annexed to the applications for

¶39

non appearance and the reasons for not cross-examining P.W.1, on 02.01.2023 in view of counsel who was held up in the 5^th floor and was unable to reach the Court in time

¶40

to cross examine the P.W.1 due to engagement in another case in another Court hall. It is also contended by learned counsel that immediately on the very next date i.e., on 11.01.2023, the applications came to be filed by the defendants to recall the order dated 02.01.2023 and to permit the defendants to cross-examine P.W.1. The same came to be rejected without considering the reasons assigned by the defendants in the applications and cause shown therein. On these grounds, learned counsel for the

¶41

6 - NC: 2023:KHC-D:6679 WP No. 103340 of 2023

¶42

petitioner seeks to allow the petition providing an opportunity to defendants to cross-examine P.W.1.

¶43

Per Contra , learned counsel Sri Vishwanath Hegde

¶44

appearing for the 1^st respondent/plaintiff who is contesting respondent in this case contends that the applications filed by the defendants are deliberate and mischievous and intended to prolong the matter. But however, on consideration of the applications having been filed on the next hearing date and in order to seek the matter before the Trial Court proceed expeditiously, he submits that he would not have much objections in petition being allowed and an opportunity being given to the petitioners/ defendants and cross-examination to be conducted in a time bound manner. Placing his submission on record, this Court deems it appropriate to pass the following :

¶45

ORDER

¶46

(i) This petition is allowed.

¶47

(ii) The impugned order dated

¶48

23.03.2023 passed by the Principal Judge,

¶49

7 - NC: 2023:KHC-D:6679 WP No. 103340 of 2023

¶50

Family Court, Hubballi in O.S.No.4/2021 on

¶51

I.A.Nos.12 and 13 at Annexure-H is set aside.

¶52

(iii) Consequently, applications I.A.Nos.12 and 13 are hereby allowed.

¶53

(iv) The petitioners/defendant Nos.1 and 2 are permitted to cross-examine P.W.1.

¶54

(v) The petitioners/defendants shall cooperate with the Trial Court to cross-examine P.W.1 expeditiously without taking unnecessary adjournments. Trial Court is at liberty to impose costs on deliberate unnecessary adjournments.

¶55

Sd/JUDGE

¶56

CKK List No.: 1 Sl No.: 2

Smt. Rekha W/O Dr. Ramakrishna Nayak v. Smt. Hema W/O Ramakrishna Nayak

Case brief

What is this about?

What did the court decide?

Smt. Rekha W/O Dr. Ramakrishna Nayak v. Smt. Hema W/O Ramakrishna Nayak

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bagalkote Cement and Industries Limited, Bagalkote Vs Bagalkote Town Development Authority

Anil Kumar Chirania, Vs Ballari City Corporation

Smt. Laxmibai Vs Smt. Sharada

Mallangouda Sankangouda Patil Vs Ramapppa Kallappa Ningannure

Iranna T Gouli Vs the State of Karnataka

Sri Mahantgouda S/O Budigouda Patil Vs the State of Karnataka