Allowed

Sri. K.S. Prabhakara v. Smt. Bharathi@ Bhuvaneshwari

Karnataka HC13 Dec 2023WP/2816/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a writ petition praying to quash an order of the trial court rejecting applications to reopen a partition suit for cross-examination of the plaintiff witness. The Court set aside the rejection and directed the defendants to cross-examine the witness.

What did the court decide?

Impugned order set aside; IAs allowed; suit reopened for cross-examination of P.W.1 by defendants; Rs. 5,000 costs awarded to respondent.

Sri. K.S. Prabhakara Vs Smt. Bharathi@ Bhuvaneshwari — Partition | Karnataka HC (2023)

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NC: 2023:KHC:45533 WP No. 2816 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF DECEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE S.G.PANDIT

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WRIT PETITION NO. 2816 OF 2021 (GM-CPC)

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BETWEEN:

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SRI. K.S. PRABHAKARA S/O SHASHIDHRAPPA AGED ABOUT 38 YEARS, R/AT GAMA VILLAGE ANJANAPURA HOBLI SHIKARIPURA TALUK SHIMOGA DISTRICT - 577 201

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…PETITIONER

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(BY SRI. NAVEEN J N.,ADVOCATE)

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AND:

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SMT. BHARATHI@ BHUVANESHWARI W/O KUBERAPPA

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Digitally signed by A K CHANDRIKA Location: HIGH COURT OF KARNATAKA

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AGED ABOUT 38 YEARS, R/AT CHANNAKESHAVANAGARA 1ST CROSS, OPP PRAKRUTHI CONVENT SHIKARIPURA TOWN, SHIKARIPURA TALUK SHIMOGA DISTRICT - 577 201

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SMT. ARATHI W/O CHANDRAPPA AGED ABOUT 35 YEARS, R/AT ESURU VILLAGE, SHIKARIPURA TALUK SHIMOGA DISTRICT - 577 201

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SMT.SHEELA W/O CHANDRAPPA AGED ABOUT 33 YEARS, R/AT CHILUR, HONALI TALUK DAVANAGERE DISTRICT

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2 - NC: 2023:KHC:45533 WP No. 2816 of 2021

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SMT. NIRMALA W/O RAJU AGED ABOUT 37 YEARS, R/AT KOMMANALU VILLAGE SHIMOGA TALUK, SHIMOGA DISTRICT

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SMT. LEELA W/O NAGARAJA DEAD BY LRS PRATHAM S/O NAGARAJ MAJOR, RESIDENT OF HEL QUARTERS, MARATHHALLI, BANGALORE

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…RESPONDENTS (BY SMT.SEEMA HIREBIDARI., ADVOCATE FOR R-1; NOTICE SERVE TO R-2 TO R-4) THIS WRIT .PETITION .IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, SHIKARIPURA IN I.A.NOS.9 AND 10 IN O.S.NO.158/2012 DTD. 17.12.2019 MARKED AT ANNX-G TO THE WRIT PETITION.DIRECT THE ADDITIONAL CIVIL JUDGE AND JMFC AT SHIKARIPURA TO ALLOW THE I.A. NO.9 AND 10 IN O.S.NO.158/2012 MARKED AT ANNX-D AND E.

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(BY SMT.SEEMA HIREBIDARI., ADVOCATE FOR R-1; NOTICE SERVE TO R-2 TO R-4)

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner/defendant No.1 in O.S.No.158/2012

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on the file of the Additional Civil Judge and JMFC, Shikaripura is before this Court, aggrieved by order dated 17.12.2019 on I.A.Nos.9 and 10, rejecting petitioner’s

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3 - NC: 2023:KHC:45533 WP No. 2816 of 2021

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request to reopen and seeking permission to crossexamine P.W.1.

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The suit is one for partition and separate possession of 1/6^th share in all the suit schedule properties by metes and bounds. It is submitted that P.W.1 completed his evidence on 23.06.217 and subsequently, the suit was posted for cross-examination of P.W.1 by defendants. The defendants could not cross-examine P.W.1 and crossexamination of P.W.1 by defendants was taken as NIL and the suit was posted to next stage,. The petitioner/ defendant No.1 filed I.A.Nos.9 and 10 under Section 151 of CPC praying to reopen and seeking permission to crossexamine P.W.1. In the affidavit accompanying application, it is stated that the first defendant was suffering health issues and he could not instruct his counsel for crossexamination. The applications were opposed by the first respondent/plaintiff. The trial Court under the impugned order rejected both the I.As.

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4 - NC: 2023:KHC:45533 WP No. 2816 of 2021

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The trial Court, under impugned order noted that chief-examination of P.W.1 was completed on 03.07.2017 and thereafter the suit was set down for crossexamination of P.W.1 by defendants on several dates. As the defendants failed to cross-examine P.W.1, it was taken as “No cross-examination”. Thereafter, on the application filed by the petitioner/first defendant it was reopened and provided an opportunity to cross-examine P.W.1, even the said opportunity is not utilized as noted by the trial Court in its order.

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The suit is for partition and separate possession. The plaint averments clearly indicates that the respondent No.1/plaintiff and petitioner/defendant No.1 are son and daughter of one Shashidharappa. Taking note of the fact that litigation is between the family members, I deem it appropriate to provide one opportunity to the petitioner/defendant No.1 to cross-examine P.W.1. No party shall go out of the Court with an impression that he

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5 - NC: 2023:KHC:45533 WP No. 2816 of 2021

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was not provided with sufficient opportunity to make out

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his case or defend his case,. Hence, the following order:

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The impugned order dated 17.12.2019 on I.A.Nos.9 and 10 in O.S.No.158/2012 on the file of Additional Civil Judge and JMFC, Shikaripura is set aside. I.A.Nos.9 and 10 are allowed. The stage of the suit is reopened for cross-examination of P.W.1 by defendants. The defendants shall complete cross-examination of P.W.1 on the next date of hearing.

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The petitioner/defendant shall pay cost of Rs.5,000/to respondent No.1/plaintiff on the next date of hearing before the trial Court.

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With the above, the writ petition stands disposed of.

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Sd/JUDGE

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MPK List No.: 1 Sl No.: 60

Sri. K.S. Prabhakara v. Smt. Bharathi@ Bhuvaneshwari

Case brief

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Sri. K.S. Prabhakara v. Smt. Bharathi@ Bhuvaneshwari

Case brief

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