Karnataka High Court
Shri Gurulingappa S/O Ramappa ... vs Shri Sidaray S/O Kadappa Athani on 20 June, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC-D:8277
WP No. 103153 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.103153 OF 2024 (GM-CPC)
BETWEEN:
1. SHRI. GURULINGAPPA
S/O RAMAPPA KANKANAWADI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: KULHALLI-587311,
TQ: RABKAVI-BANAHATTI,
DIST: BAGALKOT.
2. SHRI. BASAPPA
S/O RAMAPPA KANKANAWADI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KULHALLI-587311,
TQ: RABKAVI-BANAHATTI,
DIST: BAGALKOT.
... PETITIONERS
(BY SRI PRASHANT S. KADADEVAR, ADVOCATE)
AND:
SHRI. SIDARAY
S/O KADAPPA ATHANI,
YASHAVANT AGE: 61 YEARS, OCC: AGRICULTURE,
NARAYANKAR
R/O: KULHALLI-587311,
Digitally signed by
YASHAVANT NARAYANKAR
Location: HIGH COURT OF
TQ: RABKAVI-BANAHATTI,
KARNATAKA DHARWAD
BENCH
Date: 2024.06.25 11:22:29
+0530
DIST: BAGALKOT.
... RESPONDENT
(BY SRI MRUTYUNJAYA TATA BANGI, ADVOCATE C/RESPONDENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE
NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER
DATED 16.04.2024 ON IA NO.6 PASSED BY THE SENIOR CIVIL
JUDGE AND JMFC., AT: BANAHATTI (ANNEXURE-J) IN O S
NO.117/2021, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.
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NC: 2024:KHC-D:8277
WP No. 103153 of 2024
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and learned counsel for the respondent.
2. This petition is filed by the defendants being aggrieved by the impugned order dated 16.04.2024 passed on I.A.No.6 by the Senior Civil Judge and JMFC, Banahatti in O.S.No.117/2021.
3. The respondent/plaintiff filed a suit in O.S.No.117/2021 against the petitioners/defendants for the relief of declaration with regard to property bearing R.S.No.32/1 measuring 8 acres 06 guntas and also for the relief of permanent injunction. The Trial Court had granted an interim order which was challenged by the defendants before this Court in WP No.105226/2021 C/W WP No.105227/2021. While disposing of the writ petition, this Court directed for appointment of DDLR and thereafter he submitted a report to this Court. On submission of such report, this Court held that the report of the DDLR prima facie proves that the lands extend beyond the Halla, which is in favour of the defendants i.e., the -3- NC: 2024:KHC-D:8277 WP No. 103153 of 2024 petitioners herein, but since the defendants have not set up counter claim, the report of DDLR was accepted. However, the plaintiff filed objections to the said report of the DDLR contending that the report is erroneous and sought for an opportunity to cross-examine the DDLR, which was permitted by this Court. While disposing of the said writ petition, this Court set aside the orders of the Trial Court and the First Appellate Court and a direction was given to the Trial Court to afford an opportunity to both the plaintiff as well as defendants to cross-examine the DDLR and take appropriate decisions on I.A.Nos.1, 4 and 5 and till then, the parties were directed to maintain status quo in respect of the property in question.
4. This being the state of affairs, plaintiff cross- examined the DDLR before the Trial Court and the opportunity to cross-examine sought for by the defendants came to be rejected by the Trial Court and an application was made under Order XVIII Rule 17 R/w Section 151 of CPC by defendants seeking permission of the Court to cross-examine the DDLR/CW.1. The said application was objected by the plaintiff and an order came to be passed by the Trial Court, whereby -4- NC: 2024:KHC-D:8277 WP No. 103153 of 2024 the application of the defendants came to be rejected, which is the subject matter of this petition.
5. It is contended by learned counsel for the petitioners/defendants that the DDLR was appointed by this Court and the report initially was in favour of the defendants. So therefore, there was no need for him to file objections. However, since it was against the plaintiff, he filed objections and sought to cross-examine the said DDLR which was permitted by this Court. While disposing of the said writ petition, this Court also permitted the parties to cross-examine the DDLR/CW.1 and both the plaintiff and defendants were provided an opportunity to cross-examine and thereafter decide on I.A.Nos.1, 4 and 5 as observed by this Court in paragraph No.18 of the aforementioned writ petition order.
6. Learned counsel for the petitioners contends that the impugned order passed by the Trial Court is erroneous, is liable to be set aside, as it is not inconsonance with the orders passed by this Court and also it is against the principles of natural justice to not provide an opportunity to the petitioner/defendant to cross-examine CW.1. -5-
NC: 2024:KHC-D:8277 WP No. 103153 of 2024
7. Per contra learned counsel for the respondent/plaintiff vehemently contends that while this Court appointed the DDLR for conducting of a survey and after the report was filed, no objection came to be filed by the defendants. Hence, the question of permitting the defendants to cross-examine CW.1 would not arise, as he did not object to the said report. Now when the plaintiff has cross-examined CW.1 and elicited positive information and evidence in his favour, the defendants are now seeking to cross-examine CW.1, which is uncalled for and it cannot be permitted, as he never filed objections to the report of the DDLR.
8. Having heard the learned counsel for both the parties, this suit came to be filed by the plaintiff for relief of declaration. The plaintiff and the defendants claim respective right of ownership on two different properties and since temporary injunction was granted in favour of the plaintiff, the matter reached this Court for vacating of the same, during which time the DDLR was appointed to conduct the survey in the writ petition at paragraph Nos.17 and 18 which are held as under:
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NC: 2024:KHC-D:8277 WP No. 103153 of 2024 "17. At this juncture both the counsel for the plaintiff and defendants fairly submit that, the writ petition may be disposed off by confirming the order dated 20.12.2021 with a direction to the trial Court to give an opportunity to both the parties to cross-examine the DDLR and thereafter pass suitable orders on I.A.Nos.1 to 3.
18. Given the peculiar facts and circumstances of the case, I deem it appropriate to set aside the impugned orders of the trial Court and the First Appellate Court with a direction to the trial Court to afford an opportunity for both the plaintiff and the defendants to cross-examine the DDLR and thereafter take a decision on I.A.Nos.1, 4 and 5 and the parties to maintain status quo in respect of the property concerned till such decision is taken."
9. It was at the instance of the counsel of both the plaintiff and defendants, the writ petition came to be disposed of confirming the order dated 20.12.2021 with a direction to the Trial Court to provide opportunity to both parties to cross- examine the DDLR and pass suitable orders thereafter I.A.Nos. 1 to 3.
10. It is also relevant to note that pursuant to the orders passed by this Court and the report being favorable to the defendants, there was no need for him to file objection, however where DDLR was cross-examined by the plaintiff, it appears that there is some positive evidence in favour of the plaintiff, which may probably go against the defendants. Hence, the defendants sought to cross-examine the said witness -7- NC: 2024:KHC-D:8277 WP No. 103153 of 2024 CW.1/DDLR which was rejected. The finding given by the Trial Court for rejecting the application of defendants to cross- examine the DDLR/CW.1 is not inconsonance with the orders passed by this Court in the aforesaid mentioned writ petition. So also it runs contrary to the basic principle of natural justice and it is a fundamental rule of law, a witness is examined and when there is any evidence which goes negative to him, he ought to be permitted a chance or opportunity to controvert or cross-examine the said witness to establish his case.
11. Under the circumstances the impugned order passed by the Trial Court is erroneous and the same deserves to be set aside. Accordingly, it is set aside.
12. Consequently I.A.No.6 filed by the defendants under Order XVIII Rule 17 of CPC is hereby allowed.
13. The defendant is permitted to cross-examine CW.1/DDLR on the next date of hearing or any other day of adjournment granted by the Trial Court.
Sd/-
JUDGE SSP CT:BCK List No.: 1 Sl No.: 20