Partly allowed

Sri. Shivaram Mally v. Sri. Ramakrishna P B

Karnataka HC12 Jan 2023WP/49571/2016

Case brief

AI extract

What is this about?

High Court quashed two orders of the trial court rejecting witness summons applications under CPC Order XVI Rules 1 and 2 and Section 151, allowing the plaintiff to cross-examine witnesses and reopen the case, while sustaining the order regarding a previously dismissed application.

What did the court decide?

Orders dated 25.07.2016 on IA.No.XI and 17.08.2016 on IA.No.XII quashed; IS.A.No.XII allowed; IA.No.XIII order sustained.

Sri. Shivaram Mally Vs Sri. Ramakrishna P B — Civil Procedure and Limitation | Karnataka HC (2023)

¶1

¶2

WP No. 49571 of 2016

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF JANUARY, 2023 BEFORE

¶4

THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO. 49571 OF 2016 (GM-CPC)

¶5

BETWEEN:

¶6

SRI SHIVARAM MALLY S/O.LATE KRISHNA MALLY AGED ABOUT 66 YEARS R/AT ARBI HOUSE MOODUSHEDDE VILLAGE MANGALURU TALUK-575 004

¶7

…PETITIONER

¶8

(BY SRI HAREESH BHANDARY T., ADVOCATE)

¶9

AND:

¶10

SRI RAMAKRISHNA P.B. S/O.LATE BALU M. AGED ABOUT 56 YEARS R/AT KALLAGUDDE HOUSE MOODUSHEDDE VILLAGE MANGALURU TALUK-575 004

¶11

…RESPONDENT

¶12

Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

¶13

(BY SRI SACHIN B.S., ADVOCATE)

¶14

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.07.2016 VIDE ANNEXURE-A MADE ON I.A.XI AND THE ORDER DATED 17.08.2016 VIDE ANNEXURE-B MADE ON I.A.NOS.XII AND XIII IN O.S.NO.619/2010 BY THE COURT OF II ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, D.K. AND ETC.

¶15

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

¶16

¶17

WP No. 49571 of 2016

¶18

ORDER

¶19

This petition is preferred by the plaintiff being aggrieved by the orders dated 25.07.2016 passed on IA.No.XI and dated 17.08.2016 passed on IA.Nos.XII and XIII by II Additional Civil Judge and JMFC, Mangaluru, Dakshina Kannada (hereinafter referred to as ‘the trial Court’).

¶20

The suit is preferred by the plaintiff before the trial Court for the relief of damages against respondent/ defendant. During the pendency of the suit proceedings, the aforesaid three applications in IA.Nos.XI to XIII came to be filed.

¶21

The application in IA.No.XI came to be filed to summon the witness, who is the President of Koragara Sangha, for the reasons stated in the memorandum of facts annexed to the application that the plaintiff wanted to summon the witness to speak about the false complaint registered by the respondent-defendant.

¶22

It is the contention of the plaintiff that the said witness being the President of Koragara Sangha, was visiting Moodushedde Panchyat Office often and hence, he is aware of the activities that has transpired and he would be right person

¶23

¶24

WP No. 49571 of 2016

¶25

to speak about the false complaint as stated by the plaintiff. After hearing the parties, the trial Court rejected the application on the ground that the person sought to be summoned i.e. the President of Koragara Sangh and the allegations made in the plaint are no way connected to each other and hence, the plaintiff failed to prove as to how the witness is a competent person to speak about the false complaint or his case.

¶26

I am afraid that the finding of the trial Court may not be correct for the reason that before the witness evidence is adduced as to the relevancy of the evidence, the trial Court cannot come to a conclusion for the simple reason that in the memorandum of facts annexed to the application, it is stated by the plaintiff that the said witness-President of Koragara Sangha used to visit Moodushedde Panchyat Office often and he is also aware of the various incident that occurred, which would speak about the false complaint registered by the defendant. The petitioner is aware that the defendant and witness sought to be summoned belong to same community. The summoning of witness, however, will not be detriment to the interest of defendant as he would be at liberty to cross-

¶27

¶28

WP No. 49571 of 2016

¶29

examine the said witness in detail. As per Order XVI Rules 1 and 2 of CPC, the plaintiff is at liberty to summon a witness and he shall have a proof as to what purpose, he is summoning and the same is stated in the memorandum of facts. Therefore, in the interest of justice, I deem it appropriate to set aside the application in IA.No.XI, which is rejected by the trial Court and the same deserves to be allowed and accordingly, it is allowed . The respondent-defendant would be at liberty to cross-examine the witness.

¶30

The applications in IA.No.XII filed under Section 151 of CPC to reopen the case and to lead further evidence of plaintiff and IA.No.XIII filed under Order XVI Rules 1 and 2 read with Section 151 of CPC to summon the witness namely, Mr.Mithra Heraje as mentioned in the application, came to be rejected by the trial Court vide order dated 17.08.2016 for the reasons stated therein.

¶31

The trial Court has rejected the application in IA.No.XIII on the ground that similar application in IA.No.I, which was filed earlier seeking summons to the said Superintendent of Police, Director of Civil Rights of Urwa Store

¶32

¶33

WP No. 49571 of 2016

¶34

Manager, was dismissed by the trial Court. Therefore, I do not find any illegality in the order dated 17.08.2016 passed by the trial Court rejecting the application in IA.No.XIII.

¶35

In view of allowing of the application in IA.No.XI by this Court, the order dated 17.08.2016 passed by the trial Court on IA.No.XII is set aside and the same is allowed . The plaintiff is permitted to reopen the case and to examine the witness as per IA.No.XI.

¶36

In view of the above, orders dated 25.07.2016 passed on IA.No.XI and dated 17.08.2016 passed on IA.No.XII by the trial Court, are quashed and the order dated 17.08.2016 passed on IA.No.XIII is sustained and the same is not interfered. Accordingly, this petition is disposed of .

¶37

It is made clear that the petitioner-plaintiff would be at liberty to examine the witness mentioned in IA.No.XIII, as he can secure the witness on his own accord.

¶38

Sd/JUDGE

¶39

¶40

List No.: 1 Sl No.: 52

Sri. Shivaram Mally v. Sri. Ramakrishna P B

Case brief

What is this about?

What did the court decide?

Sri. Shivaram Mally v. Sri. Ramakrishna P B

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

Tanish S Vs the State of Karnataka

Mr Mohsin Sait Vs Mohd Iqbal Sait

Smt. Mala B @ Chaitra Vs Sri Kiran D N

Chaduranga Kanthraj Urs Vs Yaduveer Gopal Raj Urs @ Yaduveer

Sri.S.Muniyappa Vs the Deputy Commissioner

Dr. Mohammed Fayiz K. M Vs Union of India