Allowed

Meera Murlidhar Bajaj v. Anil Purshotam Bajaj

Karnataka HC8 Jan 2024WP/14464/2023

Case brief

AI extract

What is this about?

A writ petition challenging the trial court's order summoning petitioners as witnesses in a pending property suit. The High Court set aside the impugned order as premature and devoid of opportunity for the parties, reserving liberty for further evidence.

What did the court decide?

The impugned order summoning petitioners was set aside; liberty reserved for parties to examine themselves or adduce further evidence.

Meera Murlidhar Bajaj Vs Anil Purshotam Bajaj — Civil Procedure and Limitation | Karnataka HC (2024)

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NC: 2024:KHC:793 WP No. 14464 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 14464 OF 2023 (GM-CPC)

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BETWEEN:

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MEERA MURLIDHAR BAJAJ

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AGED ABOUT 92 YEARS, WIFE OF LATE MURLIDHAR BAJAJ RESIDING AT USHA VILLA, 2ND FLOOR, 24 LINKING ROAD, SANTA CRUZ WEST, MUMBAI - 400054

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NARESH BAJAJ, AGED ABOUT 45 YEARS SON OF BASIDHAR BAJAJ RESIDING AT USHA VILLA, 5TH FLOOR, 24 LINKING ROAD, SANTA CRUZ WEST MUMBAI - 400054

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Digitally signed by ANAND N Location: HIGH COURT OF KARNATAKA

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SUNIL BAJAJ AGED ABOUT 67 YEARS SON OF LATE MURLIDHAR BAJAJ RESIDING AT 2ND FLOOR USHA VILLA, 5TH FLOOR, 24 LINKING ROAD, SANTA CRUZ WEST MUMBAI - 400054

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MEENA BANSIDHAR BAJAJ AGED ABOUT 67 YEARS WIFE OF BASIDHAR SHEKRAJ BAJAJ RESIDING AT 5TH FLOOR ,

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NC: 2024:KHC:793 WP No. 14464 of 2023

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USHA VILLA, 5TH FLOOR, 24 LINKING ROAD, SANTA CRUZ WEST MUMBAI - 400054

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SUJATHA BAJAJ AGED ABOUT 64 YEARS WIFE OF SUNIL BAJAJ RESIDING AT 2ND FLOOR USHA VILLA, 5TH FLOOR, 24 LINKING ROAD, SANTA CRUZ WEST MUMBAI - 400054

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…PETITIONERS

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(BY SRI. S. BASAVARAJ, SENIOR ADVOCATE FOR SRI. GOUTHAM A. R., ADVOCATE)

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AND:

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ANIL PURSHOTAM BAJAJ AGE 66 YEARS, SON OF PURUSHOTHAM BAJAJ RESIDING AT NO 134, LAVELLE ROAD, BANGALORE - 560001

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…RESPONDENT (BY SRI. ANIL PURUSHOTAM BAJAJ, PARTY-IN-PERSON)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10TH FEBRUARY 2023 PASSED BY THE COURT OF THE XXXVIII ADDL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE IN OS 8997/2019 PRODUCED AS ANNEXURE-M SUMMONING THE PETITIONERS TO GIVE EVIDENCE ON BEHALF OF THE RESPONDENT HEREIN.

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NC: 2024:KHC:793 WP No. 14464 of 2023

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

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ORDER

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This petition is directed against the impugned order dated 10.02.2023 passed in O.S.No.8997/2019 by the XXXVIII Additional City Civil and Sessions Judge, Bengaluru [for short, ‘ the trial Court ’] whereby, the application [I.A.No.9] filed by the respondent-plaintiff under Order XVI Rule 1 to 7 of the Code of Civil Procedure, 1908 [for short, ‘ CPC’ ] seeking issuance of witness summons to the petitioner No.1-defendant and other petitioners to give evidence, was allowed by the trial Court.

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Heard the learned Senior counsel for the petitioners and the respondent/party-in-person and perused the material on record.

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The material on record discloses that the respondent-plaintiff instituted the aforesaid suit against the petitioner No.1-defendant for permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit which is contested by the petitioner

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NC: 2024:KHC:793 WP No. 14464 of 2023

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No.1 is pending adjudication before the trial Court. After completion of evidence of the respondent-plaintiff and his witnesses, he filed an application seeking summoning of the petitioners herein to give evidence as witnesses in the suit on his behalf.

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It is the grievance of the petitioners that without providing any opportunity to them, the trial Court has proceeded to allow the application which is in violation of principles of natural justice and without appreciating that the practice of calling the opposite party as a witness to the suit is highly deprecated as held by this Court in the case of M.C.Ananda and another Vs. M.C.Chikkanna and another reported in AIR 2001 KAR 139 . It is therefore submitted that the impugned order passed by the trial Court deserves to be set aside.

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Per contra, the respondent/party-in-person would support the impugned order and submits that there is no merit in the petition and the same is liable to be dismissed.

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NC: 2024:KHC:793 WP No. 14464 of 2023

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6. The material on record clearly indicates that

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the petitioner No.1-defendant has not even commenced her evidence as on today nor have the remaining petitioners been examined as witnesses as her behalf. It is therefore clear that the request of the respondent/party-inperson to summon the petitioners as witnesses is highly premature inasmuch as it is open for the petitioner No.1 to either examine herself or her General Power of Attorney holder as the case may be and also examine the remaining petitioners as witnesses in case if she so desires. It would also be open for the respondent-plaintiff to request the trial Court to draw inference/adverse inference against the petitioner No.1 if she does not examine herself personally, and the trial Court shall decide upon the said questions/issues after hearing both sides in accordance with law.

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Under these circumstances, I am of the considered opinion that the impugned order passed by the trial Court cannot be sustained and the same deserves to be set aside by reserving liberty in favour of both parties to

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NC: 2024:KHC:793 WP No. 14464 of 2023

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adduce such further evidence on their side as they so desire. In the result, the following:

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ORDER

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i The petition is allowed.

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ii The impugned order dated 10.02.2023 in O.S.No.8997/2019 on the file of the XXXVIII Additional City Civil and Sessions Judge, Bengaluru is herby set aside.

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iii Liberty is reserved in favour of the petitioner No.1 to either examine herself personally or through her General Power of Attorney holder and adduce such further oral or documentary evidence on her behalf.

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iv Liberty is also reserved in favour of the respondent/party-in-person to cross examine the petitioner No.1 and her witnesses and also adduce further rebuttal evidence, if he

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so desires.

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NC: 2024:KHC:793 WP No. 14464 of 2023

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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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Meera Murlidhar Bajaj v. Anil Purshotam Bajaj

Case brief

What is this about?

What did the court decide?

Meera Murlidhar Bajaj v. Anil Purshotam Bajaj

Case brief

What is this about?

What did the court decide?

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