Allowed

Smt Umamaheshwari v. Sri Nagaraja

Karnataka HC7 Mar 2024WP/1480/2024

Case brief

AI extract

What is this about?

The Karnataka High Court quashed the trial court order refusing the petitioner permission to examine her son as a witness. Evidence of the petitioner was retained in the record, with liberty to the respondent to cross-examine and draw adverse inference.

What did the court decide?

Impugned order set aside; Permission granted to examine petitioner's son; Evidence retained; Liberty reserved to respondent for cross-examination and adverse inference.

Smt Umamaheshwari Vs Sri Nagaraja — Civil Procedure and Limitation | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:9547 WP No. 1480 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 7^TH DAY OF MARCH, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION No. 1480 OF 2024 (GM-CPC)

¶7

BETWEEN:

¶8

SMT. UMAMAHESHWARI D/O LATE KRISHNADAS AGED ABOUT 50 YEARS WORKING AS SUPERINTEND IN HORTICULTURE DEPARTMENT M G ROAD, SRINIVASAPURA TOWN AND TALUK, KOLAR DISTRICT - 563 151.

¶9

…PETITIONER

¶10

Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

¶11

(BY SRI. M SHIVAPRAKASH, ADVOCATE)

¶12

AND:

¶13

SRI. NAGARAJA S/O LATE KARIYAPPA AGED ABOUT 48 YEARS, R/AT OPP BESCOM OFFICE, M G ROAD. SRINIVASAPURA, KOLAR DISTRICT - 563151

¶14

…RESPONDENT

¶15

(BY SRI. MANJUNATHA R.S, ADVOCATE)

¶16

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSITITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS IN MIS NO. 66/2017 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, SRINIVASAPURA AND QUASH THE IMPUGNED ORDER PASSED IN MIS NO. 66/2017 DATED 28/05/2021 ON I.A. NO. 4 AT ANNEXURE-G AND CONSEQUENTLY TO ALLOW THE APPLICATION AND PERMIT THE ATTORNEY TO ADDUCE THE EVIDENCE.

¶17

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

¶18

2 - NC: 2024:KHC:9547 WP No. 1480 of 2024

¶19

ORDER

¶20

This petition by the respondent in Mis.No.66/2017, on the file of the Additional Civil Judge and J.M.F.C, Srinivasapur, is directed against the impugned order dated 28.05.2021 passed on I.A.No.IV, whereby the application filed by the respondent to examine her son Sri.Chandan L, as a witness on her behalf, was rejected by the Trial Court.

¶21

A perusal of the material on record would indicate that the respondent instituted the aforesaid miscellaneous proceedings under Order III Rule 2(A) r/w Section 151 of CPC, alleging disobedience of order of injunction passed in his favour and against the petitioner. The petitioner is contesting the said miscellaneous proceedings. During the course of trial, the petitioner examined herself as RW1 and was partly cross examined by the respondent. At that stage, the petitioner filed the instant application for permission to examine her son / Power of Attorney Holder as a witness on her behalf and to relieve her from adducing further evidence in the case. In the affidavit filed in support of the application, the petitioner contended that she has suffered a paralytic stroke and was not in a position to move about and

¶22

3 - NC: 2024:KHC:9547 WP No. 1480 of 2024

¶23

consequently, she could not appear before the Court, either physically or through video conferencing and adduce evidence. The said application was opposed by the respondent who specifically contended that the petitioner was working in the Horticulture Department as a Superintendent and was attending the office regularly, even after the paralytic stroke and consequently, there was no impediment for her to tender the evidence on her behalf. After hearing the parties, the Trial Court proceeded to pass the impugned order rejecting I.A.No.IV, aggrieved by which, the petitioner is before this Court by way of the present petition.

¶24

Learned counsel for the petitioner on instructions submits that the evidence of the petitioner may be retained and the same need not be struck off from the record of the proceedings. It is also submitted that Sri.Chandan.L, son and Power of Attorney Holder of the petitioner is required to be examined as RW2 and the question of his evidentiary value may be kept open to be decided by the Trial Court.

¶25

Per contra , learned counsel for the respondent submits that so long as the evidence of the petitioner (RW1) is retained and not

¶26

4 - NC: 2024:KHC:9547 WP No. 1480 of 2024

¶27

struck off / discarded and an opportunity is granted to the respondent herein to cross examine the Power of Attorney Holder (RW2) on all aspects including his evidentiary value, personal knowledge etc., the respondent does not have any objection for permitting the Power of Attorney Holder to be examined as a witness (RW2) on behalf of the petitioner. In view of the aforesaid facts and circumstances, I deem it just and appropriate to set-aside the impugned order and dispose of I.A.No.IV, by issuing certain directions.

¶28

In the result, the following;

¶29

ORDER

¶30

(i) The petition is hereby disposed off.

¶31

(ii) The impugned order is hereby set-aside.

¶32

(iii) I.A.No.IV filed by the petitioner stands disposed off, permitting the petitioner to examine her son / Power of Attorney Holder Sri. Chandan.L, as a witness (RW2) on her behalf.

¶33

(iv) Liberty is reserved in favour of the respondent herein to cross examine RW2, on all aspects of the matter including the evidentiary value, personal knowledge etc.,

¶34

¶35

NC: 2024:KHC:9547 WP No. 1480 of 2024

¶36

(v) The evidence of the petitioner (RW1) is directed to be retained in the record of the proceedings and the same shall not be discarded / struck off, merely on account of non appearance of the petitioner.

¶37

(vi) Liberty is also reserved in favour of the respondent to request the Trial Court to draw inference / adverse inference against the petitioner (RW1) for not appearing personally before the Trial Court.

¶38

(vii) In the event, such a request is made, the Trial Court shall hear both sides on this aspect of the matter and proceed further in accordance with law.

¶39

(viii) All aspects Including the evidentiary value of the evidence of RWs.1 and 2, are kept open and no opinion is expressed on the same.

¶40

Sd/JUDGE

¶41

¶42

List No.: 1 Sl No.: 51

Smt Umamaheshwari v. Sri Nagaraja

Case brief

What is this about?

What did the court decide?

Smt Umamaheshwari v. Sri Nagaraja

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Smt H v Manju @ Manjula Vs Sri Patel Chikkammogegowda

Govindaiah Vs Venkataiah

Shri H K Kantharaju Vs the State of Karnataka

Sri K S Vishwanatha Reddy Vs Bank of Baroda

Sri. Satish Veerachari Vs Sri.D. Rambabu

Sri Gurumurthy Vs the Commissioner