Allowed

Sri Ameerjan v. Smt Shakilabanu

Karnataka HC27 Mar 2024WP/10126/2021

Case brief

AI extract

What is this about?

Plaintiff in an injunction suit sought recall of a trial court order recording cross-examination of DW.1 as nil during the COVID-19 period. The High Court set aside the rejection of those applications, recalled the suit stage and DW.1 for further cross-examination.

What did the court decide?

Impugned order dated 27.01.2021 set aside; I.A.Nos.17 and 18 allowed; stage and DW.1 recalled for plaintiff's cross-examination; suit to be disposed at earliest.

Sri Ameerjan Vs Smt Shakilabanu — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:12993 WP No. 10126 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 10126 OF 2021 (GM-CPC)

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BETWEEN:

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SRI. AMEERJAN SON OF LATE ABDUL JALEEL AGED ABOUT 80 YEARS,

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REPRESENTED BY HIS GPA HOLDER SRI. AKMALSHAREEF SON OF AMEERJAN AGED ABOUT 50 YEARS, UMARBAGH LAYOUT UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE-560 082

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…PETITIONER

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(BY SRI. SRINIVAS MANOHAR KULKARNI, ADVOCATE)

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AND:

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

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SMT. SHAKILABANU WIFE OF SRI SYED IBRAHIM AGED 44 YEARS,

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SMT. PARVEEN D/O SHAKILABANU AGED ABOUT 26 YEARS,

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1 AND 2 ARE RESIDING AT 1^ST CROSS, HARINAGAR, NEAR MADINA MASJID, ANJANAPURA POST, BENGALURU SOUTH TALUK, PIN-560 062.

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…RESPONDENTS

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(BY SRI. VASANTH KUMAR B.G., ADVOCATE)

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NC: 2024:KHC:12993 WP No. 10126 of 2021

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.563/2014 ON THE FILE OF THE VII ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-19), PERUSE THE SAME AND ALLOW THIS WRIT PETITION AND QUASH THE ORDER DATED 27.01.2021 PASSED IN O.S.NO.563/2014 ON THE FILE OF THE VII ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-19) ANNEXURE-E AND THEREBY ALLOW THE APPLICATIONS FILED BY THE PLAINTIFF/PETITIONER FOR RECALL AND REOPENING THE CASE (I.A.NOs.18 AND 19) (LATER RENUMBERED AS I.A.NOs.17 AND 18).

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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 plaintiff in O.S. No.563/2014 on the file of VII Additional City Civil and Sessions Judge, Bengaluru, (henceforth referred to as 'the Trial Court') has filed this petition challenging an order dated 27.01.2021 by which applications - I.A. Nos.18 and 19, which were subsequently renumbered as I.A. Nos.17 and 18, filed by the plaintiff to recall the order dated 21.12.2020 and recall

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3 - NC: 2024:KHC:12993 WP No. 10126 of 2021

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the stage of the suit and to permit the plaintiff to crossexamine DW.1 were rejected.

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The suit in O.S. No.563/2014 was filed for

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perpetual injunction restraining the defendants from interfering with the plaintiff's possession of the suit schedule property or dispossessing him and taking forcible possession of the suit schedule property from the plaintiff. The said suit was contested by the defendant No.2. When the said suit was set down for trial, the general power of attorney holder of the plaintiff was examined as PW.1 and thereafter, the case was set down for the examination of the defendants. The defendant No.2 was examined as DW.1. However, when the case was listed on 21.12.2020,

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as there was no representation for the plaintiff, the Trial Court took cross-examination of DW.1 as nil and posted the case for arguments. Later, two applications under Section 151 of CPC., were filed by the learned counsel for the plaintiff along with respective memorandum of facts, seeking to recall the order dated 21.12.2020 and recall the

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4 - NC: 2024:KHC:12993 WP No. 10126 of 2021

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stage of the suit and to permit the plaintiff to crossexamine DW.1. The Trial Court rejected the said applications on the ground that the cause shown for recalling the stage of the suit and to recall DW.1 for crossexamination was not justified as the said applications were filed at the stage of arguments.

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Learned counsel for the plaintiff contends that

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the Country was gripped with corona pandemic between 25.03.2020 till 14.03.2021 and the Hon’ble Apex Court had taken note of the said fact and had considered the period between 23.05.2020 and 14.03.2021 as the period during which the Courts were closed and therefore, had directed all the Courts in the Country to deduct the said period while calculating limitation applicable to any proceedings before the Court. He contends that since the access to the Court was restricted during Covid-19 period, the plaintiff could not cross-examine DW.1. Therefore, the Trial Court ought to have allowed the applications filed by

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5 - NC: 2024:KHC:12993 WP No. 10126 of 2021

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the plaintiff for recalling the stage of the suit and to recall

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DW.1 for cross-examination.

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Learned counsel for respondent Nos.1 and 2 is

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absent.

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Be that as it may, since the cross-examination of DW.1 was taken as nil on 21.12.2020, which was during the COVID 19 period, an opportunity deserves to be granted to the plaintiff to cross-examine DW.1.

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Hence, the petition is allowed and the impugned order dated 27.01.2021 passed by the VII Additional City Civil and Sessions Judge, Bengaluru, on I.A. Nos.18 and 19, which were subsequently renumbered as I.A. Nos.17 and 18, is set aside. The said applications filed by the plaintiff are allowed and the earlier order dated 21.12.2020 passed by the Trial Court taking crossexamination of DW.1 as nil is set aside. The stage of the suit is recalled and DW.1 is also recalled for further crossexamination. It is made clear that the plaintiff shall cross-

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NC: 2024:KHC:12993 WP No. 10126 of 2021

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examine DW.1 on the next date or on an adjourned date depending upon the convenience of the Trial Court. The Trial Court is directed to dispose off the suit - O.S. No.563/2014 at the earliest and in accordance with the Karnataka (Case Flow Management in Subordinate Courts)

Rules, 2005.

Sd/JUDGE

SMA

List No.: 1 Sl No.: 36

Sri Ameerjan v. Smt Shakilabanu

Case brief

What is this about?

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Sri Ameerjan v. Smt Shakilabanu

Case brief

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What did the court decide?

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