Smt. S. Kamala Vs Smt. Lakshmamma

SRI. P. MAMMOOT, S/O LATE ALIKUTTY, AGED ABOUT 76 YEARS, R/O DOOR NO.411, "REFEEQ MANZIL", 3RD MAIN, BANNIMANTAP "C" LAYOUT, MANDI MOHALLA, MYSORE - 570 015.

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SRI. M.D. SRINIVAS, S/O LATE DASAPPA, AGED ABOUT 67 YEARS, R/O DOOR NO.3325/5-G RAMAMANDIR ROAD, MANDI MOHALLA, MYSORE - 570 015.

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SMT. LAKSHMI, W/O LATE PUTTARAJU, AGED ABOUT 59 YEARS.

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SRI. MUKUNDA, W/O LATE PUTTARAJU, AGED ABOUT 59 YEARS,

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SMT. HAMSA, D/O LATE PUTTARAJU, AGED ABOUT 54 YEARS,

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SMT. KOKILA D/O LATE PUTTARAJU, AGED ABOUT 54 YEARS.

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RESPONDENT NO.10 TO 13 R/O DOOR NO.516, IV CROSS, SHIVARATHRESHWARA NAGAR, BANNIMANTAP 'B' LAYOUT, MYSORE - 570 013.

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SMT. PADMA

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D/O LATE M.R. DASAPPA, AGED ABOUT 68 YEARS

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SMT. KAMAKSHI D/O LATE M.R. DASAPPA, AGED ABOUT 54 YEARS,

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SMT. NIRMALA D/O LATE M.R. DASAPPA, AGED ABOUT 52 YEARS,

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RESPONDENT NO.14 TO 16 R/O NO.3395, 6TH MAIN TILAK NAGAR, MANDI MOHALLA, MYSORE - 570 015.

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SRI. MADESHA

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S/O LATE M.R. DASAPPA, AGED ABOUT 54 YEARS, R/O NO. 3395, 6^TH MAIN, TILAK NAGAR, MANDI MOHALLA, MYSORE - 570 015.

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SMT. SUMITRA S/O LATE PUTTARAJU,

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AGED ABOUT 35 YEARS, RESIDING AT NO.516, 4TH CROSS SHIVARATHRESHWARA NAGAR, BANNIMANTAP 'B' LAYOUT, MYSORE - 570 015.

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…RESPONDENTS

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(BY SRI. KALYAN R, ADVOCATE FOR R8; VIDE ORDER DATED 19.09.2023, NOTICE TO R1 IS HELD SUFFICIENT;

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VIDE ORDER DATED 16.08.2023, NOTICE TO R2 TO R7, R9 TO R18 DISPENSED WITH)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS OF THE COURT OF PRL. SR. CIVIL JUDGE AND CJM AT MYSORE IN O.S.NO. 462/2002, INCLUDING THE IMPUGNED ORDER OF THE SAID COURT DATED 28.11.2018 VIDE ANNEX-F FOR VERIFYING THE FACTUAL CORRECTNESS AND LEGALITY OF THE SAME AND ETC.,

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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 M.G.S. KAMAL

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ORAL ORDER

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Defendant Nos.18, 19, 20 and 21 in OS.No.462/2002 filed by the respondent No.1/plaintiff pending consideration on the file of the Civil Judge (Sr.Dn) at Mysore, for relief of partition and separate possession are before this Court, being aggrieved

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by the order dated 28.11.2018 by which the application in I.A.Nos.53, 54 and 55 filed by the present petitioners seeking to reopen the case for production of documents, leading evidence and for cross-examining the plaintiff were rejected by the Trial Court.

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Despite service of notice to the contesting

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respondent No.1, who was the plaintiff before the Trial Court, there has been no representation.

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Learned counsel for the petitioners submits that originally petitioners herein were not made as parties to the suit filed by plaintiff/respondent No.1. They were impleaded as defendant Nos.18 to 21, subsequently by order dated 04.04.2018 and they filed written statement on 22.09.2018. That by the time they filed written statement, the evidence of the plaintiff/respondent had already been completed. It is under the said circumstances the petitioners filed the application seeking permission to lead their evidence, to produce the document and to cross-examine the plaintiff. That on the very same day of filing the said applications without even calling for objection or hearing the parties, the trial Court

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proceeded to dismiss the application merely because the said suit is pending consideration for over 10 years.

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Learned counsel further submits that,

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petitioners/defendants Nos.18 to 21 have never been given the opportunity either to cross-examine the plaintiff or to lead the evidence on their part.

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Heard and perused the records.

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Perusal of the records would indicate that the petitioners herein were arrayed as defendants Nos.18 to 21 only on 04.04.2018, though a suit has been filed in the year 2002, applications in I.A.Nos.53, 54 and 55 have been filed by the petitioners seeking to lead their evidence, to produce the documents and to cross-examine the plaintiff witness.

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The order impugned passed by the Trial Court is as cryptic as it could be which reads as under:

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“The advocate for the defendants Nos.18 to 21 Smt. Ms filed I.A.No.53, 54 and 55 to recall PW1 for cross examination and to lead further evidence on behalf of defendant No.18.

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The case is of the year 2002 which is more than 10 years old. The matter is now posted

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for arguments on merits. There are no grounds to allow the application filed by the defendant No.18 at the stage of final argument. Hence the, IA No.53, 54 and 55 stands dismissed.”

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8. The Apex Court in the case of K.K.VELLUSWAMY

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Vs. N.PALANISWAMY reported in 2011 AIR SWC 2296 under the similar facts and circumstances of the matter has permitted for cross-examination and leading evidence of the parties.

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The Trial Court, without adverting to the facts more particularly, the petitioners herein were impleaded only on 04.04.2018, has merely held that the applications were not liable to be allowed since the suit is pending from 2002. The

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said order, apart from being cryptic is without any reason, is therefore unsustainable.

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Accordingly, petition is allowed .

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a) I.A.Nos.53, 54 and 55 are allowed.

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b) Petitioners are permitted to cross-examine the PW1, to produce the additional evidence and lead evidence.

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c) They shall cross-examine the PW1, lead their evidence on the dates that will be fixed by the trial Court without seeking any further adjournment.

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It is made clear that if on the dates which the Trial Court fixes for the cross examination of PW1 and for leading their evidence petitioners fail to cross examine PW1 and lead their evidence, they shall not have any further opportunity.

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Since, the matter is pending from the year 2002, the Trial Court shall dispose of the case as expeditiously as possible within an outer limit of six months from the date of receipt of certified copy of this order.

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Sd/(M.G.S. KAMAL) JUDGE

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PK List No.: 1 Sl No.: 11 CT: BHK

Smt. S. Kamala v. Smt. Lakshmamma

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Smt. S. Kamala v. Smt. Lakshmamma

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