Allowed

Mr Mohd Ismail Sait v. Mr Raja Velu

Karnataka HC11 Jul 2023WP/4704/2021

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a writ petition filed by plaintiffs in a civil suit. The court set aside a trial court order rejecting an application to recall a witness for cross-examination due to unavoidable circumstances and permitted the petitioners to tender the witness on a specified date.

What did the court decide?

The impugned order was set aside; I.A. No.15 under Section 151 CPC was allowed to permit petitioners to tender PW.2 for cross-examination.

Mr Mohd Ismail Sait Vs Mr Raja Velu — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC:23841 WP No. 4704 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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WRIT PETITION NO. 4704 OF 2021 (GM-CPC)

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BETWEEN:

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MR MOHD ISMAIL SAIT SINCE DECEASED BY HIS LRS

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1(A) SMT NASEEM BANU

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W/O. MOHD ISMAIL SAIT AGED ABOUT 58 YEARS

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Digitally signed by ANAND N Location: HIGH COURT OF KARNATAKA

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1(B) SRI KHADER SAID S/O MOHD ISMAIL SAIT AGED ABOUT 33 YEARS, BOTH ARE RESIDING AT NO.131C HALEY MEMON COLONY NEAR RCC WATE TANK KAREGODI ROAD GANDHINAGAR TIPTUR RURAL KOTANAYAKANAHALLI TUMKUR-572201

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REPRESENTED BY THEIR SPECIAL POWER OF ATTORNEY MR MOHAMMED HANEEF SAIT S/O MOHAMMED EBRAHIM SAIT AGED ABOUT 57 YEARS, RESIDING AT NEST PROMONADE ROAD,

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NC: 2023:KHC:23841 WP No. 4704 of 2021

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FRAZER TOWN BANGALORE-560 05

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…PETITIONERS

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(BY SRI. SRINIVAS N., ADVOCATE)

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AND:

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MR RAJA VELU SINCE DECEASED BY HIR LR'S

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SMT VIJAYA W/O LATE RAJA VELU AGED ABOUT 42 YEARS, R/AT NO.525 PHASE III HOUSING BOARD COLONY SATHYACHARI ROAD, VELLORE-9 TAMIL NADU

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R RAJESH R RAHUL S/O LATE RAJA VELU AGED ABOUT 22 YEARS,

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R RAHUL S/O LATE RAJA VELU AGED ABOUT 20 YEARS,

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R RAGHAVAN S/O LATE RAJA VELU AGED ABOUT 19 YEARS,

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ALL ARE R/AT NO.525 PHASE III HOUSING BOARD COLONY SATHYACHARI ROAD, VELLORE-9 TAMIL NADU

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- 3 - NC: 2023:KHC:23841 WP No. 4704 of 2021

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PRESENTLY ALL ARE RESIDING AT C/O MR M JAVEEL BASHA NO.141 HKP ROD, (BRADWAY ROAD) SHIVAJINAGAR BANGALORE-560051

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MR M JAMEEL BASHA W/O T M ABDUL MAJEED AGED ABOUT 65 YEARS, R/AT NO.141 HKP ROAD, (BROADWAY ROAD) SHIVAJINAGAR, BANGALORE-560051

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MR RIYAZ SAID FATHER NAME NOT KNOWN C/O GARDEN ETNERPRISES NO.40/4 LAVELLE ROAD BANGALORE-560 001

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COMMISSIONER BANGALORE MAHANAGARA PALIE N R SQUARE BANGALORE-560 002

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…RESPONDENTS

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(BY SRI. S.V.GIRIDHAR, ADVOCATE FOR R6; SRI. B.V.MURALIDHAR, ADVOCATE FOR R7; SRI. SRISHAIL, A. HUBLI, ADVOCATE FOR R5)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD.10.2.2021 PASSED ON IA NO.15 FILED BY THE PETITIONER/PLAINTIFF UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE IN O.S.NO.15179/2004 ON THE FILE OF XIII ADDITIONAL CITY CIVL AND SESSIONS JUDGE MAYOHALL UNIT BANGALORE VIDE ANNEXURE-E AND ETC.

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

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NC: 2023:KHC:23841 WP No. 4704 of 2021

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ORDER

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This petition by the plaintiffs in O.S.No.15179/2004 is directed against the impugned order dated 10.02.2021 on I.A.No.15 passed by the XIII Additional City Civil Judge, Bengaluru (for short, 'the trial Court') whereby, the said application was rejected by the trial Court.

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Heard learned counsel for the parties and perused the material on record.

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The material on record discloses that the

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petitioners are the legal representatives of the original plaintiff, who expired during the pendency of the suit during which, he was examined as PW.1. After his demise, the petitioners having been brought on record, examined their Power of Attorney holder - Mr. Mohammed Haneef Sait as PW.2 and since he did not tender himself for cross examination, the same was taken as Nil. Subsequently, the petitioners-legal representatives of the deceased original plaintiff filed the instant application (I.A.No.15) for recalling the earlier order and for permission to tender PW.2 for cross examination. The said application was dismissed by

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NC: 2023:KHC:23841 WP No. 4704 of 2021

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the trial Court by passing the impugned order, which is assailed in the present petition.

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A perusal of the material on record including the impugned order will indicate that the trial Court has failed to consider and appreciate the specific contention of the petitioners that their inability and omission to tender PW.2 for cross examination by the defendants was due to bonafide reasons, unavoidable circumstances and sufficient cause on account of health reasons as evident from medical records. Under these circumstances, by adopting justice oriented approach and in order to given one more opportunity for the petitioners to tender PW.2 for cross examination, I deem it just and appropriate to set aside the impugned order and permit the petitioners to tender PW.2 for cross examination before the trial Court on the next date of hearing viz ., which is on 13.07.2023.

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In the result, I proceed to pass the following:

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ORDER

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The petition is hereby allowed.

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6 - NC: 2023:KHC:23841 WP No. 4704 of 2021

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a) The impugned order dated 10.02.2021 in

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O.S.No.15179/2004 on the file of the XIII Additional City Civil Judge, Bengaluru is set aside.

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b) The application in I.A.No.15 under Section 151 of CPC is allowed.

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c) The petitioners are directed to keep PW.2 present before the trial Court on 13.07.2023 and tender himself for cross

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examination before the trial Court.

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All rival contentions on all aspects of the matter are

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kept open and no opinion is expressed on the same.

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Sd/JUDGE

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Mr Mohd Ismail Sait v. Mr Raja Velu

Case brief

What is this about?

What did the court decide?

Mr Mohd Ismail Sait v. Mr Raja Velu

Case brief

What is this about?

What did the court decide?

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