Allowed

Mr. Vijay Vikranth Rai v. Mr. Dinesha Subrahmanya S

Karnataka HC24 Oct 2024WP/10002/2024

Case brief

AI extract

What is this about?

A defendant whose applications to reopen the suit from arguments and recall PW.1 for cross-examination were rejected sought writ relief. The High Court, though noting deliberate delay, allowed a final opportunity subject to exemplary costs payable to the plaintiff.

What did the court decide?

Impugned order dated 20.03.2024 set aside; IA Nos.13 and 14 allowed subject to payment of Rs.10,000 cost to plaintiff, failing which trial court may dispose of suit.

Mr. Vijay Vikranth Rai Vs Mr. Dinesha Subrahmanya S — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:43050 WP No. 10002 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 10002 OF 2024 (GM-CPC)

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BETWEEN:

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MR. VIJAY VIKRANTH RAI S/O MR. MOHAN RAI K., AGED ABOUT 40 YEARS, R. AT N.G. ROAD, ATTAVARA, MANGALORE-575001.

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…PETITIONER

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(BY SRI. GIREESHA KODGI, ADVOCATE)

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AND:

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MR. DINESHA SUBRAHMANYA S. S/O. LATE MR.VISHNU BHAT S., AGED ABOUT 59 YEARS R/O D.N. 2-3-213/1, RASQINHA COMPOUND, KOTEKANI CROSS ROAD, BEJAI POST, MANGALORE 575004.

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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MR. RICHARD LOBO S/O LATE CASHMIR LOBO AGED ABOUT 65 YEARS R/AT D.NO.10-156-4 KENSINGTON HOUSE, SUVARNA LANE, NEAR FR. MULLER'S HOSPITAL, KANAKANADY, MANGALORE-575002.

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…RESPONDENTS

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(BY SRI. ANANDARAMA K., ADVOCATE FOR RESPONDENT NO.1;

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VIDE ORDER DATED 24.10.2024, SERVICE OF NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH)

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2 - NC: 2024:KHC:43050 WP No. 10002 of 2024

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS OF THE SUIT O.S. NO.1530/2019 ON THE FILE OF V ADDL. CIVIL JUDGE AND JMFC, MANGALORE AND QUASH THE ORDER DATED 20.03.2024 PASSED ON IA NO.13 AND 14, FILED UNDER SECTION 151 AND ORDER XVIII RULE 17 OF CPC RESPECTIVELY, IN O.S. NO. 1530/2019 PASSED BY THE V ADDL. CIVIL JUDGE AND JMFC, MANGALORE, AND CONSEQUENTLY ALLOW THE APPLICATION BY RECALLING THE PW1 FOR CROSS EXAMINATION IN OS NO. 1530/2019 ON THE FILE OF V ADDL. CIVIL JUDGE, AND JMFC, MANGALORE, AS PER ANNEXURE-H.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The defendant No.1 in O.S.No.1530/2019 on the file of V Additional Civil Judge, Mangaluru, Dakshina Kannada has filed this writ petition, challenging an order dated 20.03.2024 by which, I.A.Nos.13 and 14 filed by him under Section 151 of Civil Procedure Code and Order XVIII Rule 17 of Civil Procedure Code to reopen the stage of suit from argument to crossexamination of PW.2 and to recall PW.1 for cross-examination were rejected.

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3 - NC: 2024:KHC:43050 WP No. 10002 of 2024

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The suit in O.S.No.1530/2019 was filed for mandatory injunction, for perpetual injunction and for damages. The suit was contested by the defendant No.1. The Trial Court framed issues and set down the case for trial. The cross-examination of PW.1 was fixed on 15.06.2022. The

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defendant No.1 did not cross-examine the witness on 04.07.2022 and 12.07.2022. On 25.07.2022, the defendant No.2 filed an application for amendment of written statement which was allowed and the amendment was carried out on 01.08.2022. The case was listed on 05.09.2022 for crossexamination of PW.1 and the defendant No.1 sought time on the said date. Again on 19.09.2022 the defendant No.1 filed a memo which was rejected by the Court. On the submission of the plaintiff that there was an element of settlement, the case was adjourned to 20.09.2022 for cross-examination of PW.1. On 20.09.2022, the same submission was made that parties are exploring the settlement and the case was then adjourned to 23.09.2022 for settlement. It was reported on 18.10.2022 that there was no settlement between the parties. The defendant No.1 filed an application to direct the defendant No.2 to cross-examine PW.1 and alleged that the plaintiff and

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4 - NC: 2024:KHC:43050 WP No. 10002 of 2024

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defendant No.2 were colluding with each other. Then again case was listed on 29.10.2022 on which day, the Presiding officer was on leave. On 17.11.2022, the defendant No.2 filed objections to I.A.No.10. The case was then protracted from that day onwards till I.A.No.10 was rejected on 06.04.2023. The case was then posted for cross-examination of PW.1 finally on 23.05.2023. The defendant No.1 sought time to cross-examine PW.1. Therefore the Court took the cross-examination of PW.1 as nil and the case was then posted for cross-examination of PW.1 by defendant No.2. The case was then adjourned from time to time till 12.12.2023 on which day, the defendant No.1 filed I.A.No.XI to recall PW.1 for cross-examination. The case stood adjourned to 15.12.2023, on which day, the witness was absent. PW.1 was later cross-examined in-part on 16.01.2024. Again on 15.02.2024, the defendants sought time to further cross-examine PW.1. On 16.02.2024, the defendant No.1 again filed an application for adjournment which was rejected with cost of Rs.500/-. On 22.02.2024, the defendant No.1 filed I.A.Nos.13 and 14 to reopen the case from the stage of arguments and to recall PW.1 for further cross-examination. The said applications were rejected in terms of the impugned

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5 - NC: 2024:KHC:43050 WP No. 10002 of 2024

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order. Being aggrieved by the said order, this writ petition is filed.

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The learned counsel for the defendant No.1

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submitted that though there is some lapse on the part of defendant No.1 to go on with the trial in the suit, having regard to the consequences that may befall upon defendant No.1, he prayed that an opportunity be granted, on such terms that this Court considers reasonable.

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Per contra, the learned counsel for the plaintiff contended that the defendant No.1 has deliberately delayed the proceedings in the suit and submits that no indulgence be shown.

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The aforesaid dates would establish that the defendant No.1 was unduly delaying the proceedings in the suit. Therefore, though the Trial Court was justified in not granting any further opportunity to the defendant No.1, yet having regard to the fact that the parties are litigating before the Court, this Court is of the opinion that a final opportunity may be granted by imposing exemplary cost on the defendant No.1.

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6 - NC: 2024:KHC:43050 WP No. 10002 of 2024

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In that view of the matter, the petition is allowed .

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The impugned order dated 20.03.2024 is set aside. I.A.Nos.13 and 14 filed by the defendant No.1 are allowed subject to payment of cost of Rs.10,000/- payable by the defendant No.1 to the plaintiff on the next date of hearing.

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It is made clear that if the defendant No.1 does not cross-examine PW.1 or does not pay the cost to the plaintiff on the next date of hearing, the Trial Court shall proceed and dispose off the suit in accordance with law.

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Sd/(R. NATARAJ) JUDGE

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List No.: 1 Sl No.: 20

Mr. Vijay Vikranth Rai v. Mr. Dinesha Subrahmanya S

Case brief

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Mr. Vijay Vikranth Rai v. Mr. Dinesha Subrahmanya S

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