Karnataka High Court
Ningaiah vs Puttaswamy on 14 August, 2017
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NO.29784 OF 2017(GM-CPC)
BETWEEN:
NINGAIAH,
BY POWER OF ATTORNEY HOLDER
SHIVALINGAIAH,
S/O. NINGA @ BILIGOWDA,
AGED ABOUT 58 YEARS,
R/O. SIDDEGOWDANADODDI VILLAGE,
ATHAGUR HOBLI,
MADDUR TALUK,
MANDYA DISTRICT-571433.
...PETITIONER
(BY SRI D.S.HOSMATH, ADV.)
AND:
1. PUTTASWAMY,
S/O. BOKKIMOTAIAH,
AGED ABOUT 70 YEARS.
2. APPAJI,
S/O. BOKKIMOTAIAH,
AGED ABOUT 65 YEARS.
3. KEMPAIAH,
S/O. BOKKIMOTAIAH,
AGED ABOUT 60 YEARS,
EMPLOYEE OF S.C.S. LTD.,
2
R/O. K.M.DODDI, C.A.KARE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT-571422.
4. CHIKKAMARI,
S/O. BOKKIMOTAIAH,
AGED ABOUT 58 YEARS.
5. SHANKARA,
S/O. BOKKIMOTAIAH,
AGED ABOUT 55 YEARS.
(RESPONDENTS 1,2,4 & 5 ARE
R/O. SIDDEGOWDANADODDI VILLAGE,
ATHAGUR HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571433.)
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION ON INDIA PRAYING TO QUASH
ORDER VIDE ANNEX-E PASSED BY THE PRL. CIVIL JUDGE
AND JMFC AT MADDUR IN O.S.NO.53/2006 DATED
03.06.2017 ON I.A.42 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Plaintiff in O.S. No.53/2006 has preferred this writ petition being aggrieved by Order dated 03.06.2017 passed therein by which, the Trial Court has rejected I.A.Nos.42 and 43 filed by the plaintiff. 3
2. I.A. No.42 is filed by the power of attorney holder of the plaintiff praying for substitution of evidence of PW-1 by that of the evidence of power of attorney holder by discarding the evidence of PW-1, by permitting the power of attorney holder to lead evidence in place of PW-1 and by marking documents as well.
3. I.A. No.43 is filed by the defendants seeking issuance of summons to the doctor who examined the plaintiff and issued the medical certificate and to cross- examine him regarding the health condition of the plaintiff as stated in the medical certificate.
4. Learned counsel for the petitioner submits that the petitioner has become old and is ailing and is not in a position to withstand the cross-examination to be conducted in the suit. Therefore plaintiff filed the application seeking substitution of his evidence tendered as PW-1 with that of the power of attorney holder's evidence and that power of attorney holder could be permitted to tender his evidence and also be cross- 4 examined. Of course, on that application, defendants sought to examine the doctor who issued the medical certificate to plaintiff about his health condition. The Trial Court has dismissed both the applications. Petitioner's counsel submits that having regard to the medical condition of the plaintiff, I.A. No.42 ought to have been allowed.
5. Having heard learned counsel for the petitioner and on perusal of the material on record, it is noted that the suit was filed in the year 2006, thereafter, the petitioner as the plaintiff has filed his affidavit by way of examination-in-chief. There are no reasons forthcoming as to why he was not cross-examined in time. It is also not known as to whether the plaintiff was in any way the cause of delay in absenting / presenting himself for cross- examination. Be that as it may.
6. The fact remains that the plaintiff / petitioner herein has already filed his affidavit by way of examination-in-chief as PW-1 and all that is necessary is 5 that the documents have to be marked and he should be cross-examined and that the same would complete the evidence of PW-1. At this stage, after a long passage of time, plaintiff cannot and could not have sought for discarding of his evidence and for letting in evidence of his power of attorney holder.
7. The defendants have contested I.A.42 and have also sought examination of the doctor who examined plaintiff and issued the medical certificate to the plaintiff. If the same had been permitted by the Court, the suit would have proceeded at a tangent rather than proceeding on merits and the matter would again be the subject matter of controversy regarding the health of plaintiff and the suit would proceed unnecessarily on that aspect. Therefore it would be in the fitness of things for plaintiff to be examined further and cross-examined. In case, law permits any kind of assistance to be given to the plaintiff on account of his medical condition, then the Trial Court is 6 directed to permit such assistance to be given to the plaintiff in the witness box.
Subject to the aforesaid observations, the writ petition is dismissed.
Sd/-
JUDGE sac*