Karnataka High Court
Smt. Sangavva @ Sangubai W/O. Bapugouda ... vs The State Of Karnataka on 6 August, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 6TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.80929/2013 (GM-CPC)
BETWEEN
SMT SANGAVVA @ SANGUBAI
W/O. BAPUGOUDA PATIL @ HUDEDMANI
AGE: 56 YEARS, OCC: HOUSEHOLDWORK,
R/O. HUNASIKATTI, TQ: NARAGUND
DIST: GADAG. ..... PETITIONER
(BY SRI S L MATTI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
R/BY DEPUTY COMMISSIONER
GADAG, DIST: GADAG
2. ASSISTANT COMMISSIONER
GADAG, DIST: GADAG
3. THE TAHASILDAR
NARAGUND, TQ: NARAGUND
GADAG, DIST: GADAG
4. SRI DESAIGOUDA S/O. SANGANAGOUDA PATIL
AGE: 46 YEARS, OCC: AGRICULTURE
R/O. BENAKANAKOPPA, POST: CHIKKANARAGUND,
TQ:NARAGUND DIST: GADAG
5. SMT. SEETAVVA @ SEETABAI
W/O. GURUPADAGOUDA PATIL
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
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R/O. HONNUTAGI, TQ & DIST: BIJAPUR
6. SMT. GANGAVVA @ GANGUBAI
W/O. NAGANAGOUDA PATIL
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O. SIDDESHWAR NAGAR,
UNKAL CROSS, HUBLI. ..... RESPONDENTS
(BY SMT VIDYAVATHI K. AGA FOR R-1 TO R-3)
THIS WRIT PETITION FILED UNDER ARTICLES 226 & 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH AN ORDER
DATED:17/07/2013 IN DEPOSITION OF P.W.-1 REGARDING
PERMITTED THE RESPONDENT NO.1 TO 3 FOR CROSS
EXAMINATION OF PETITIONER (PLAINTIFF) ANNEXURE-D AND
ETC AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Plaintiff being aggrieved by the order of the trial court dated 17.07.2013 at Annexure-D permitting defendant Nos.4 to 6 to cross-examine PW-1 is before this Court seeking for quashing of the said order.
2. I have heard the arguments of the learned counsel for the petitioner and the learned Additional Government Advocate appearing for respondent Nos.1 to 3. By consent it is taken up for final disposal.
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3. Having heard the learned advocates appearing for the parties and on perusal of the case papers, I am of the considered view that there is no infirmity in the order passed by the trial court and it would clearly indicate that though defendant Nos.4 to 6 had not filed the written statement they have been permitted to cross-examine PW- 1 who has been examined as a witness on behalf of the plaintiff. Non-filing of the written statement would not disentitle the defendants to cross examine the witness. When the court examines the proof of allegation of the plaint and plaintiff has been called upon to tender evidence then notwithstanding the fact that the defendants have not filed their written statement would not preclude the trial court from permitting the defendants to cross examine the plaintiff or the witness examined on behalf of the plaintiff. The Hon'ble Apex Court in the case of MODULA INDIA VS. KAMAKSHYA SINGH DEO (AIR 1989 SC 162) has held as under: :4:
"It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiff's witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross- examination. The right of the defence to cross- examine the plaintiff's witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff's evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the Court that the plaintiff's witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute."
A co-ordinate bench of this Court while examining similar plea has held as under:
"Therefore, it becomes clear in a suit the defendant has the right to show that the case :5: pleaded by the plaintiff is false or cannot be acted upon and in addition to that he can put forth his defence to defeat the claim of the plaintiff. By not filing the written statement he loses his right to put forth his defence to defeat the claim of the plaintiff only but he does not lose his right to demolish the case of the plaintiff by cross-examination. The defendant by cross- examination of the plaintiff and his witnesses can demolish the case of the plaintiff and also address arguments on the basis of the evidence led by the plaintiff, and also make submission on law and satisfy the Court that on the material on record, the plaintiff's case cannot be accepted and no decree can be passed in favour of the plaintiff."
4. In the light of the law laid down by the Apex Court and the co-ordinate bench of this court, it cannot be held that on account of mere non-filing of the written statement by the defendant, he would be precluded from defeating the claim of the plaintiff by not cross-examining the plaintiff or his witnesses. The defendant would be only :6: loosing his right to purforth his defence or in other words demolish the case of the plaintiff through his defence. However, defendant does not lose his right to demolish the case of the plaintiff by cross-examining the plaintiff or his witnesses without filing the written statement. In that view of the matter, I do not find any good ground to entertain this writ petition. Accordingly, it stands rejected.
Smt.K.Vidyavathi, learned AGA is permitted to file memo of appearance within four weeks from today.
SD/-
JUDGE Jm/-