N C Venkatesh Vs J Shashirekha

J. SHASHIREKHA D/O. LATE PUTTAMADAIAH @ JOHN W/O. K. PUTTASWAMY AGED ABOUT 67 YRS. R/O NO.7329, 1^ST MAIN THOMAS LAYOUT NANJANGUD TOWN BEHIND HOUSING BOARD COLONY MYSORE DISTRICT - 571 301.

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J. SHYLA D/O. LATE PUTTAMADAIAH @ JOHN W/O. LATE CHENNAKESHAVA AGED ABOUT 57 YRS.

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R/O NO.3719, GROUND FLOOR DR.AMBEDKAR ROAD SRIRAMPURA MAIN ROAD NANJANGUD TOWN MYSORE DISTRICT - 571 301.

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J. SURESH S/O. LATE PUTTAMADAIAH @ JOHN. AGED ABOUT 64 YRS. D.NO.3718, DR. AMBEDKAR ROAD SRIRAMPURA MAIN ROAD NANJANGUD TOWN MYSORE DISTRICT - 571 301.

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DR. VISHWANATH

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S/O. LATE PUTTAMADAIAH @ JOHN AGED ABOUT 61 YRS. R/O SIDDAMMA JAVARAIAH COMPLEX GOVT. HOSPITAL ROAD NANJANGUD TOWN MYSORE DISTRICT - 571301.

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USHA M. W/O. LATE RAVIKUMAR AGED ABOUT 55 YRS. R/O NO.3719, DR. AMBEDKAR ROAD SREEKATAPURI BADAVANE NANJANGUD TOWN MYSORE DISTRICT - 571 301.

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HARINI R. D/O. LATE RAVIKUMAR AGED ABOUT 26 YRS. R/O NO.3719, DR. AMBEDKAR ROAD SREEKATAPURI BADAVANE NANJANGUD TOWN MYSORE DISTRICT - 571 301.

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HARSHINI R., D/O. LATE RAVIKUMAR AGED ABOUT 24 YRS. R/O NO.3719, DR. AMBEDKAR ROAD SREEKATAPURI BADAVANE NANJANGUD TOWN MYSORE DISTRICT - 571 301.

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P. SHOBHA, D/O. LATE PUTTAMADAIAH @ JOHN W/O. JAYPAL BHARNI AGED ABOUT 48 YRS. R/O. 60/1, 9^TH C MAIN ROAD, HOSAHALLI, VIJAYANAGAR, BANGALORE - 560 040.

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…RESPONDENTS

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(BY SRI SUYOG HERELE E., ADVOCATE FOR R1 AND R2; NOTICE TO R3 TO R8 IS DISPENSED VIDE ORDER DATED 30.07.2025)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD. 16.12.2024 IN O.S.NO.26/2014 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT NANJANAGUDU VIDE ANNEXURE-N AS THE SAME IS ILLEGAL AND UNSUSTANINABLE AND GRANT THE PRAYER MADE IN IA NOS.48 AND 49 IN THAT SUIT.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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This petition is filed by the petitioners-defendant Nos.4 and 5 aggrieved by the impugned order dated 16.12.2024 passed on I.A.Nos.48 and 49 in O.S.No.26/2014 by the Senior Civil Judge and JMFC, Nanjangud.

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Parties are referred to as per their status before the trial Court.

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Respondent Nos.1 and 2-plaintiffs filed a suit against the petitioners and other defendants for partition, declaration and other consequential benefits.

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3.1. After the evidence was concluded in the suit proceedings, the petitioners-defendant Nos.4 and 5 have filed an applications in I.A.Nos.46 to 49 seeking to recall DW.3 for the purpose to let in further chief examination, to reopen the case to facilitate them cross examination of DW.2, to produce the documents annexed in the list and

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to mark the same as exhibits and to recall DW.2 for the

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purpose of cross examination respectively. However, I.A.Nos.46 and 47 came to be allowed by the trial Court vide its order dated 10.09.2024 and I.A.Nos.48 and 49 are

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not considered by the trial Court.

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3.2 The petitioners-Defendant Nos.4 and 5 after the applications in IA.Nos.46 and 47 came to be allowed, the case was reopened to facilitate the petitioners-defendant Nos.4 and 5 to produce additional evidence to produce judgment and decree in R.A.No.147/2022 dated 30.01.2024, which was subsequent to examination of DW.3 and DW.2 was cross-examined and the applications in IA.Nos.48 and 49 that has to be considered was to recall DW.2 whereas recalled DW3 for further examination in chief in order to produce the judgment and decree in RA No. 147/2022.

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It is the contention of the learned counsel for petitioners-defendant Nos.4 and 5 that the impugned

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order passed by the trial Court is illegal, perverse and contrary to the materials on record including the earlier order passed by the trial Court on 10.09.2024. It is further contended by learned counsel for petitioners-defendant Nos.4 and 5 that the trial Court has rejected I.A.Nos.46 to 49 without noticing the fact that I.A.Nos.46 and 47 came to be allowed on 10.09.2024 itself and pursuant thereto, DW.2 was fully cross-examined by the petitioners i.e., defendant Nos.4 and 5. Therefore, what remains for consideration before the trial Court is to consider I.A.Nos. 48 and 49.

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4.1. It is further contended by the learned counsel

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for the petitioners-defendant Nos.4 and 5 that the plaintiffs never requested for filing objections. The only one person, i.e., defendant No.6 prays time to file objections to I.A.Nos.48 and 49 but strangely has not filed objections. Thereafter, the plaintiffs have filed objections to all the four applications i.e., I.A.Nos.46 to 49 without

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noticing the fact that I.A.Nos.46 and 47 were allowed vide order dated 10.09.2024.

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4.2. Learned counsel further contended that the trial

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Court would not have rejected I.A.Nos.48 and 49 filed by the petitioners-defendant Nos.4 and 5 to lead further evidence on their behalf as DW.3 and to produce the subsequent order in R.A.No.147 of 2022 dated 30.01.2024. The said applications i.e., I.A.Nos.48 and 49 were sought to be allowed by the petitioners-defendant Nos.5 and 6 before the trial Court.

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4.3. It is further contended by learned counsel for

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petitioners-defendant Nos.4 and 5 that the trial Court has totally lost sight of its earlier order, wherein it had allowed I.A.Nos.46 and 47. Therefore, what was required to be considered was only I.A.Nos.48 and 49, which were sought by the petitioners-defendant Nos.4 and 5 to lead further evidence on their behalf as DW.3 until they produce subsequent order in support of their case. Hence, the

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present petition requires to be allowed; consequently, allowing the applications in I.A.Nos.48 and 49 filed by the petitioners-defendant Nos.4 and 5 to permit them to lead further evidence in the form of DW.3 and produce a document to be marked in support of their case.

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Per contra , learned counsel for respondent Nos.1 and 2-plaintiffs sustains the impugned order passed by the trial Court by contending that the plaintiffs have filed their objections to all four applications, i.e., I.A.Nos.46 to

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After considering the same, the trial Court has rightly rejected all the applications. In view of the fact that this Court in a coordinate petition had directed the trial Court to dispose of the matter expeditiously within the stipulated time. Hence, he contends that there is no error or illegality committed by the trial Court. It is also contended by learned counsel for respondent Nos.1 and 2-plaintiffs that there is no absolute right vested with the petitionersdefendant Nos.4 and 5 seeking to recall the witness and lead further evidence as and when they like according to

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their whims and fancies. He also contended that when this Court in a coordinate petition has given a direction to the trial Court to dispose of the matter within a stipulated time, the direction cannot be disobeyed and breached and

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therefore, the trial Court has rightly rejected the applications and ordered to proceed further in the matter.

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5.1 It is also contended by learned counsel for respondent Nos.1 and 2-plaintiffs that the suit is of the year 2014 and 11 years have lapsed. Therefore, the matter requires to be expedited in accordance to the earlier order passed by the Court. Hence, he seeks dismissal of this petition.

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Having heard learned counsel for petitioners-

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defendant Nos.4 and 5 and the learned counsel for respondent Nos.1 an 2-plaintiffs, it is seen that four applications, i.e., I.A.Nos.46 to 49 were filed by the petitioners-defendant Nos.4 and 5 to recall DW.3 for the purpose to let in further chief examination, to reopen the

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case to facilitate them to cross examination of DW.2, to produce the documents annexed in the list and to mark the same as exhibits and to recall DW.2 for the purpose of cross examination respectively. As seen from the records produced by the petitioners-defendant Nos.4 and 5 and the statement made in the writ petition papers, the order dated 10.09.2024 reads as under:

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“10/09.2024:-

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For Arguments:

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Matter is called out. Parties are present. L/C for the Defendant filed applications U/O XVIII R 17, U/s 151 of CPC, U/O VIII R 1(3) of CPC and U/O XVIII R17 of CPC. It is treated as IA No.46 to 49. Application filed to reopen and recall application is allowed. L/C for the D6 prays time for to objections to IA No.48 and 49. Further cross of DW2 by Sri.NSB fully completed.”

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On a careful perusal of the above said order, it is

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seen that the trial Court allowed the applications, i.e., I.A.Nos.46 and 47 to reopen and recall and thereafter, posted the matter for objections to be filed to I.A.Nos.48 and 49 by defendant No.6, who sought time and

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thereafter, the matter was posted for further crossexamination of DW2. It appears that there is some error committed by the trial Court while allowing I.A.Nos.46 and 47 filed by the petitioners-defendant Nos.4 and 5, which

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were to recall DW.2 for further cross-examination and to reopen the case. Subsequent to which, the petitionersdefendant Nos.4 and 5 have fully cross-examined DW.2.

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It is seen in the very same order that defendant No.6 prayed for time for filing objections to I.A.Nos.48 and 49 and nothing is stated with regard to any prayer made for filing objections on behalf of the plaintiffs and the matter was thereafter adjourned to cross-examination of DW.2. When I.A.Nos.46 and 47 were allowed and the petitioners-defendant Nos.4 and 5 had cross-examined DW.2, the question that arose for consideration before the trial Court was with regard to the other two applications, i.e., I.A.Nos.48 and 49, which were filed to recall and reopen the case for leading evidence of defendant Nos.4 and 5 as DW.3.

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I.A.No.48 filed under Order VIII Rule 1(3) read with Section 151 CPC for production of documents as prayed therein. However, the trial Court has taken up all four applications, i.e., I.A.Nos.46 to 49 for consideration once again and rejected the said applications filed by the petitioners-defendant Nos.4 and 5. In view of the submissions made by the petitioners-defendant Nos.4 and 5, I.A.Nos.46 and 47 were already allowed, but the question of rejecting the said applications again does not arise. But the question arises as to whether DW.2 has been cross-examined as stated by the petitionersdefendant Nos.4 and 5 and what is required to be considered is the applications filed for recalling and reopening the case and adducing evidence of defendant Nos.4 and 5 in the form of DW.3 for further chiefexamination and for production of documents as stated hereinabove.

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It is to be further seen that as per the statement of the petitioners-defendant Nos.4 and 5, DW.3 was

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already examined earlier and what is sought is now further chief-examination of DW.3 by the petitioners-defendant Nos.4 and 5 and in addition to mark few more documents, which are produced in the list for production of documents. It appears that the trial Court has lost sight of its earlier order, though numbering of the applications is not properly mentioned, so also in the impugned order.

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Nevertheless, be that as it may, what is required to be considered is an opportunity be provided to the petitioners-defendant Nos.4 and 5 to recall the witness of DW.3 for the purpose of further examination in chief and to produce further documents as per the list produced by the petitioners-defendants Nos.4 and 5. However, this Court is of the opinion that since the earlier applications, i.e., I.A.Nos.46 and 47 are allowed by the trial Court vide its order dated 10.09.2024, two applications, i.e., I.A.Nos.48 and 49, which are now sought to be agitated, one for recall of DW.3 for further in chief by the petitioners-defendant Nos.4 and 5 and the other to

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produce few documents to support and substantiate their

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case would be relevant material for the purpose of adjudication of the matter. Therefore, these documents would be necessary for adjudication of the matter. Only the fact that a direction has been given by this Court in a coordinate petition to dispose of the matter, would not preclude the Court from allowing the applications by restricting the parties to complete the examination in chief and further evidence within the specified time.

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Under the circumstance, I am of the opinion that the impugned order passed by the trial Court requires to be set-aside and an opportunity be given to the petitioners-defendant Nos.4 and 5 to adduce further evidence of DW.3 to produce the documents that are sought to be relied upon in the evidence.

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Accordingly, I pass the following:

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ORDER

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i. This petition is allowed ;

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ii. The impugned order dated 16.12.2024 passed on I.A.Nos.48 and 49 in O.S.No.26/2014 by the Senior Civil Judge and JMFC, Nanjangud, is hereby set aside. Consequently, the pending application i.e., I.A.Nos.48 and 49 filed by the petitioners-defendant Nos.4 and 5, which are not adverted to in the earlier order 10.09.2024, is hereby allowed;

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iii. The petitioners-defendant Nos.4 and 5 are permitted to lead further evidence and produce the documents filed along with the applications;

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iv. It is open to respondent Nos.1 and 2-plaintiffs and the other co-defendants to object to the marking of those documents in accordance with the law;

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