Dismissed

Sri P Mukundan v. Smt Radhika Vasudevan

Karnataka HC13 Dec 2023WP/6433/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed the High Court in a writ petition. The petitioner challenged the trial court's order allowing re-examination of a witness under Order XVIII Rule 17 of CPC and Section 151 of CPC in a partition suit. The High Court held that the trial court was justified in allowing the re-call of witnesses based on valid reasons and found no merit to interfere.

What did the court decide?

Writ petition stands rejected as there is no merit to interfere with the trial court's order allowing re-examination of the witnesses.

Sri P Mukundan Vs Smt Radhika Vasudevan — Partition | Karnataka HC (2023)

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NC: 2023:KHC:45476 WP No. 6433 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF DECEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO.6433 OF 2023 (GM-CPC)

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BETWEEN:

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SRI P MUKUNDAN S/O LATE G.PARTHASARATHY, AGED ABOUT 75 YEARS, RESIDENCY APARTMENTS, NO.19/10, BAWA ROAD, ALWARPET, CHENNAI-600018.

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…PETITIONER

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(BY SRI RAJADITHYA SADASIVAM.,ADVOCATE)

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AND:

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SMT RADHIKA VASUDEVAN W/O SRI. VASUDEVAN, AGED ABOUT 73 YEARS, GROUND FLOOR BRIGADE HILL VIEW BEHIND SRI RAMAKRISHNA ASHRAM, GAVIPURAM, K.G. NAGAR, BENGALURU -560019.

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

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SMT. PADMINI NARAYAN W/O SRI. NARAYAN, AGED ABOUT 70 YEARS, NO.4350, SHIRLENE COURT, GROVE CITY, OHIO, 3123, USA REPRESENTED BY HER GPA THE 1ST RESPONDENT

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…RESPONDENTS

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(BY SMT.DEEPTHI C.R FOR SRI BADRI VISHAL.,ADVOCATES)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH PORTION OF ANNX-A ORDERS DTD 10.03.2023 ETC.

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2 - NC: 2023:KHC:45476 WP No. 6433 of 2023

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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.3 in O.S.No.25874/2010 on the file of XV Additional City Civil Judge, Bangalore is before this Court, questioning the order dated 10.03.2023 allowing I.A.No.3/2023 filed under Order XVIII Rule 17 of CPC and I.A.No.4/2023 filed under Section 151 of CPC to reopen the stage of the suit for further examination of P.W.1.

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Heard learned counsel Sri.Rajadithya Sadasivam for petitioner/defendant No.3 and learned counsel

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Smt.Deepthi C.R. for learned counsel Sri.Badri Vishal for respondents/plaintiffs. Perused the writ petition papers.

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Learned counsel for the petitioner would submit that after completion of evidence, when the suit was at the stage of arguments, the respondents/plaintiffs filed I.A.Nos.3 and 4 requesting to reopen the stage and

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seeking permission to further examine P.W.1. Learned

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3 - NC: 2023:KHC:45476 WP No. 6433 of 2023

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counsel for the petitioner would submit that no reasons are assigned for seeking such relief and no document is placed on record in support of the said prayer. Learned counsel would submit that the trial Court could not have allowed both the applications for mere asking. Learned counsel placed reliance on the decision of the Hon'ble Apex

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Court in the case of BAGAI CONSTRUCTIONS THR. ITS PROPRIETOR MR.LALIT BAGAI v/s GUPTA BUILDING

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MATERIAL STORE reported in (2013) 14 SCC 1 to contend that the application under Order XVIII Rule 17 of CPC cannot be allowed, merely observing that reexamination would not cause any prejudice to the parties. Learned counsel for the petitioner would submit that the application could be allowed only on valid grounds and not to fill up the lacuna in the evidence of witness. Thus, he prays for allowing the writ petition.

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On the other hand, learned counsel for the respondents/plaintiffs would support the order passed by the trial Court and further submits that, the

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4 - NC: 2023:KHC:45476 WP No. 6433 of 2023

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respondents/plaintiffs would complete further examination of P.W.1. in one hearing. Thus, she prays for dismissal of the writ petition.

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Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that no ground is made out to interfere with the impugned order. Moreover the impugned order is neither perverse nor suffers from any material irregularity so as to warrant interference under Article 227 of the Constitution of India.

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Under Article 227 of the Constitution of India this

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Court is not sitting in appeal jurisdiction. Further, under Article 227 of the Constitution of India, the Court would not interfere with every order and/or to correct every mistake. This Court would interfere with impugned order if it is shown that impugned order if allowed to stand, would cause greater prejudice and would result in miscarriage of justice. In the instant case, it is not the case that allowing further examination of P.W.1 would result in miscarriage of justice.

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5 - NC: 2023:KHC:45476 WP No. 6433 of 2023

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7. The petitioner and defendant are family members and

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suit is one for partition. It is true that after completion of evidence when the suit stood at the stage of arguments, respondents/plaintiffs filed applications under Section 151 of CPC to re-open the stage for further examination of PW1 and under Order XVIII Rule 17 of CPC seeking permission to further examine PW1. A perusal of the affidavits enclosing both the I.As would indicate that certain documents which were not within the knowledge of respondents/plaintiffs were found subsequently were confronted to the defendant’s witness No.1 during cross-examination, however defendant’s witness denied the existence of the same. Since those documents are very essential to determine the dispute involved in the suit, respondents/plaintiffs filed the above two I.As seeking leave to further examine PW1 so as to mark those documents.

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8. In the case of VADIRAJ NAGAPPA VERNEKAR (D) THROUGH LRS., VS. SHARAD CHAND PRABHAKAR

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GOGATE reported in (AIR 2009 SC 1604) , the Hon'ble

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Apex Court has made it clear that Order XVIII Rule 17 of CPC is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. The Hon'ble Apex Court in BAGAI CONSTRUCTIONS THR. ITS PROPRIETOR MR.LALIT BAGAI (supra) has observed that application filed under Order XVIII Rule 17 of CPC cannot be allowed for mere asking and there shall be compelling and acceptable reasons.

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Further, the Hon'ble Apex Court in the case of K.K.VELUSAMY VS. N.PALANISAMY reported in ((2011) 11 SCC 275) has held that where the application is found to be bonafide and where the additional evidence, oral or documentary, will assist the Court to clarify the evidence on the issues and will assist in rendering justice, and the Court is satisfied that nonproduction earlier for valid and sufficient reasons, Court may exercise its discretion to re-call the witness or permit fresh evidence. But, if it does so, it should ensure that process does not become a protracting tactic.

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In the instant case, Trial Court after satisfying with the reasons assigned by respondents/plaintiffs allowed the application filed under Order XVIII Rule 17 of CPC as well as Section 151 of CPC, exercising its discretion and based on the scrutiny of material on record. Moreover, under impugned order, both the DW1 as well as PW1 are recalled for further examination and cross-examination. In that view of the matter, both the petitioner/defendant and respondents/plaintiffs would get an opportunity to lead their further evidence and also to cross-examine the witnesses.

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In the light of the above, I do not find any error or reason to interfere with impugned order. There is no merit in the writ petition and accordingly, writ petition stands rejected.

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Sd/JUDGE

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MPK List No.: 1 Sl No.: 64

Sri P Mukundan v. Smt Radhika Vasudevan

Case brief

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Sri P Mukundan v. Smt Radhika Vasudevan

Case brief

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