Sri. B. S. Nagendra Vs Sri. B. a. Channakeshava

SRI. B. A. CHANNAKESHAVA, S/O LATE SRI. ANJANKUMAR, AGED 28 YEARS, R/AT NO.28, 2^ND CROSS, SHIVANANDANAGAR, MUDALAPALYA, NAGARBHAVI, BENGALURU - 560 072.

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…RESPONDENT

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(BY SRI. R. SHIVACHANDRANAIK., ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN

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2 - NC: 2026:KHC:28262 WP No. 23346 of 2022

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HC-KAR

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O.S. NO.25738/2019 PENDING BEFORE THE 72ND ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (MAYO HALL) (CCH-73); SET ASIDE THE ORDER DATED 14.11.2022 PASSED IN O.S.NO.25738/2019 PENDING BEFORE THE HONBLE 72ND ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (MAYO HALL)(CCH-73) PASSED ON I.A.NO 3/2022 (ANNEXUREA) 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 VIJAYKUMAR A. PATIL

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ORAL ORDER

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This writ petition is filed by the petitioner/defendant challenging the order dated 14.11.2022, passed in OS.No.25738 of 2019 by the LXXII Additional City Civil and Sessions Judge, Bangalore (Mayo Hall) (CCH-73), (hereinafter referred to as 'Trial Court').

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2. Sri G.B. Nandish Gowda, learned counsel for V.N.Shankaregowda, learned counsel appearing for the petitioner/defendant submits that the respondent/plaintiff had filed a suit for injunction. In the said suit, the

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3 - NC: 2026:KHC:28262 WP No. 23346 of 2022

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HC-KAR

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defendant contested the proceedings. Learned counsel for the defendant cross-examined PW1, and thereafter the counsel has retired from the proceedings and on noticing that certain relevant questions were not put-forth to PW.1 during the cross-examination, an application to recall the order dated 18.02.2022 was filed and sought permission to further cross-examine PW.1, which came to be rejected by the Trial Court, on the ground that no reasons are assigned in the application seeking to recall PW1 for further cross-examination.

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3. It is submitted that the earlier counsel has retired from proceedings and only when the matter was entrusted to another learned counsel and on perusal of the evidence, it is noticed that further suggestions in the cross-examination are required to be put forth to PW1. Hence, defendant filed an application seeking permission to lead his evidence which, came to the rejected by the Trial Court. Hence, he seeks to allow the petition.

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4 - NC: 2026:KHC:28262 WP No. 23346 of 2022

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HC-KAR

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4. Per contra, Sri R. Shivachandra Naik, learned counsel appearing for the respondent supports the order of the Trial Court and submits that the Trial Court has given sufficient opportunity to the defendant to cross-examine PW1. Only on 18.02.2022, when the defendant has fully cross-examined PW1, the matter was posted for further evidence of plaintiff. Thereafter, when the matter was posted for the defendant's evidence, he as not adduced any evidence. Then the matter was posted for arguments. The plaintiff has partly argued the matter. At that time, an application came to be filed by the defendant to recall PW1 and sought permission to crossexamine without assigning any reasons. It is submitted that filing of such application is the abuse of process of law, and to drag on the further proceedings and hence, he seeks to dismiss the petition.

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5. I have heard the arguments of learned counsel

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appearing for the petitioner, learned counsel appearing for

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5 - NC: 2026:KHC:28262 WP No. 23346 of 2022

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HC-KAR

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the respondent and meticulously perused the material available on record.

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6. The respondent herein has filed OS.No.25738 of 2019 seeking decree for permanent injunction against the petitioner/defendant herein with regard to the suit schedule property. It is to be noticed that the petitioner has filed detailed written statement. Trial Court framed the issues. The plaintiff examined himself as PW1. The order sheet indicates that, on 18.02.2022, the learned counsel appearing for the defendant has cross-examined PW1 fully and thereafter, the matter was posted for further evidence of the plaintiff. The Trial Court on 15.03.2022 closed the evidence of the plaintiff's side and posted the matter for defendant's evidence.

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7. It is to be noticed that on 05.04.2022, the counsel for the defendant sought time to lead evidence. Again time was granted on 23.05.2022 at the instance of defendant's counsel. Finally, on 10.06.2022, the evidence of defendant was taken as `Nil' and the matter was posted

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6 - NC: 2026:KHC:28262 WP No. 23346 of 2022

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HC-KAR

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for arguments. It is to be further noticed that the counsel representing the defendant has retired from the case and new counsel entered appearance and thereafter filed an application to recall PW1 and also sought permission to cross-examine PW.1. The Trial Court rejected the said application.

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8. It is to be noticed that a specific assertion is made in the affidavit accompanying the application that, on reading of the cross-examination, it is noticed that several important questions relating to the dispute were not asked to PW1, hence, the application is filed and non-asking of such questions was unintentional. In my considered view, one opportunity needs to be provided to the defendant to cross-examine PW1 with regard to alleged left out questions. The same would not cause any prejudice to the other side. Therefore, an opportunity needs to be provided to the defendant to lead his evidence and defendant

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should not drag on the proceedings further. For filing of the application belatedly when the matter was posted for

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7 -

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NC: 2026:KHC:28262 WP No. 23346 of 2022

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HC-KAR

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arguments, the application deserves to be allowed on terms. Hence, I proceed to pass the following:

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ORDER

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i) Writ Petition is allowed .

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ii) Impugned order dated 14.11.2022 passed in O.S.No.25738 of 2019 by LXXII Additional City Civil and Sessions Judge, Bengaluru (Mayo Hall), (CCH-73), is set aside. Consequently, applications filed by the petitioner/defendant are allowed.

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iii) The petitioner is permitted to cross-examine PW1 on the next date of hearing or a date fixed by the Trial Court, subject to the petitioner paying cost of Rs.5,000/- to the plaintiffs.

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It is made clear that no further time shall be granted

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by the Trial Court.

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Sd/-

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(VIJAYKUMAR A. PATIL)

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JUDGE

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MKM List No.: 1 Sl No.: 10

Sri. B. S. Nagendra v. Sri. B. a. Channakeshava

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Sri. B. S. Nagendra v. Sri. B. a. Channakeshava

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