Karnataka High Court
Smt B K Renuka vs Sri B M Appaswamy on 6 February, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
WRIT PETITION No.45893/2013 c/w
WRIT PETITION No.53688/2013 (GM-CPC)
WRIT PETITION No.45893/2013
BETWEEN:
Smt.B.K.Renuka @ Renuka.V.Reddy,
W/o.Vikram Reddy,
Aged about 54 years,
No.102, Oorve Apartments,
60, Muni Marappa Road,
Off Nandi Durga Road,
Bangalore 46. ...PETITIONER
(By Sri.Chandan.S.Rao, Adv.,)
AND:
1. Sri.B.M.Appaswamy,
Since dead, rep by LRs.
a. Sri.B.K.Ravichandra,
Aged about 52 years.
b. Sri.B.K.Manmohan,
Aged about 48 years,
Both are sons of
B.M.Krishnamurthy,
R/a.No.1, Krishnamurthynagar,
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Bangalore - 38. ...RESPONDENTS
(By Sri.K.P.Ashok Kumar, Adv., for C/R2)
******
This petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the order dated
22.7.2013 passed by the Court of VII Additional Civil Judge,
Bangalore in O.S.No.8842/1980 vide Ann-N.
WRIT PETITION No.53688/2013
BETWEEN:
B.R.Bhanumathi (Maiden name) @
Smt.Bhanu Jayaram.
Aged about 57 years,
D/o.Late B.M.Ramaswamy,
R/at.Beniganahalli,
Bangalore south Taluk,
Currently R/at.
Flat No.202, No.10,
Berlie Street, Long Ford Town,
Bangalore - 25. ...PETITIONER
(By Sri.Abhinav Ramanand.A., Adv.,
AND:
B.M.Appaswamy,
Since deceased rep. by LRs.
1. Sri.B.K.Ravichandra,
Aged about 52 years.
2. Sri.B.K.Manmohan,
Aged about 48 years,
Both are sons of
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B.M.Krishnamurthy,
R/a.No.1, Krishnamurthynagar,
Bangalore - 38.
3. Smt.B.M.Akkayamma,
W/o.T.S.Bacha Reddy,
Aged about 72 years,
Thimmasandra Village,
Chintamani taluk - 563 125.
Smt.B.M.Saraswathamma,
Since dead rep. by LRs.
4. Sri.C.N.Prabhakar,
S/o.C.Narayanaswamy,
Aged about 61 years,
Residing at No.71,
Mathru Chaya, 2nd Floor,
1st Phase, KGS Layout,
Bangalore - 10.
5. Sri.N.Ramakrishna,
S/o.C.Narayanaswamy,
Aged about 58 years,
Residing at No.151,
Pai Layout, Old Madras Road,
Bangalore - 16.
6. Sri.C.N.Bhaskar,
S/o.C.Narayanaswamy,
Aged about 53 years,
Residing at No.419,
4th Cross, Sadanandanagar,
Bangalore - 38.
7. Smt.Mangala,
W/o.C.N.L.Murthy,
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Aged about 33 years.
8. Smt.K.V.C.Prakruti,
D/o.C.L.N.Murthy,
Aged about 21 years.
7 to 8 are R/at.No.5,
Chandrappa Building,
17th Cross, 6th Phase,
28th Main, J.P.Nagar,
Bangalore - 78.
9. Smt.Gayathri Surendra,
W/o.Surendra,
Aged about 52 years,
R/at.No.38,
Jogupalya, "G" Street,
Ulosor, Bangalore - 78.
Sri.B.M.Krishnamurthy.
Since dead rep. by LRs.
Smt.Sharada Krishnamurthy,
Also deceased.
10. Sri.B.K.Ravichandra,
Aged about 50 years.
11. Sri.B.K.Manmohan,
Aged about 46 years.
Both are sons of
B.M.Krishnamurthy,
R/a.No.1, Krishnamurthynagar,
Bangalore - 38.
12. Smt.B.K.Renuka,
W/o.Vikram Reddy,
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Aged about 54 years,
Ra/t.No.4,
Grant Road, Bangalore - 01.
13. Smt.B.K.Sheela,
W/o.Santosh,
Aged about 52 years,
R/at.No.409,
"N" Block, 9th E Main, Rajajinagar,
Bangalore -10.'
G.P.A.Holder
B.K.Manmohan.
Sri.B.M.Narayanaswamy,
Since dead rep. by LRs.
14. B.N.Jayadeva,
Aged about 58 years,
R/at.161, 3rd Cross,
RMV Extension,
Sadashivanagar,
Bangalore - 80.
Smt.B.M.Venkatamma.
Since dead rep. by LRs.
15. Smt.Mamtha,
D/o.S.M.Reddy,
Aged about 40 years,
R/at.No.1602, 7th Block,
LNT South City,
Arakere,
Mico Layout,
Bangalore - 71.
16. Smt.Indiramma,
W/o.Thimma Reddy,
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Major.
Respondent 15 and 16 are
R/at.65/10, 36th "A" Cross,
9th Block, Jayanagar,
Bangalore-69.
17. Smt.Savithramma,
W/o.H.N.Papayya Reddy,
Aged about 53 years.
18. Sri.Ravindra.P.
S/o.H.N.Papayya Reddy,
Aged about 36 years,
Rep. by GPA Holder
H.N.Papayya Reddy.
19. Sri.H.P.Jayadeva,
S/o.H.N.Papayya Reddy,
Aged about 34 years.
20. Smt.Sadguna Chandrakala,
D/o.Papayya Reddy,
Aged about 29 years.
All are residing at No.1079,
12th 'A' Cross,
Vyalikaval, Malleshwaram,
Bangalore - 03.
21. Smt.Sarojamma,
W/o.Munivenkata Reddy,
Major, R/at.No.26,
Ramaiah Layout,
Mathikere,
Bangalore - 54.
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22. Smt.Rajalakshmi.A.
W/o.S.M.Reddy,
Major,
R/a.No.1866,
South End 'C' Road.
9th Block, 'E', Jayanagar,
Bangalore - 69.
Smt.Sharadamma,
Since deceased rep. by LRs.
23. Smt.B.V.Jayamma,
W/o.M.Venkataswamy,
Aged about 69 years,
R/at.No.205,
4th Block, 7th Main,
Jayanagar, Bangalore - 11.
24. Smt.B.V.Sarojamma,
S/o.Late B.M.Venkataswamappa,
Aged about 66 years,
R/at.134,
10th Cross, 1st Stage,
Indiranagar,
Bangalore - 38.
Sri.B.M.Appa Reddy,
Since dead, rep. by defendant No.14
to 16.
Smt.R.Padmavathi,
Since dead, rep by LRs.
Sri.B.M.Mohan Raj,
Since dead, rep. by LRs.
25. Sri.B.M.Udaya,
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S/o.Late B.R.Mohan Raj,
Aged about 21 years.
26. Sri.B.M.Vinay,
S/o.Late B.R.Mohan Raj,
Aged about 19 years.
Respondents 25 and 26 are
R/at.507,
15th Cross, Indiranagar,
Bangalore - 38.
27. Sri.Venkatesha Gowda,
Major, Benniganahalli,
Bangalore - 43.
28. Sri.R.Kuppuswamy,
Major,
Steel Stock Yard
Hindustan Steel Works Construction Ltd.,
Benniganahalli,
Bangalore - 43.
29. Sri.Ramachandra Setty,
M/s.Bhadra Minerals Company,
Old Madras Road,
Benniganahalli,
Bangalore - 43.
30. Sri.S.D.Patel,
S/o.Dayabhai Patel,
Major,
Sharavathi Tubes Corporation,
Benniganahalli,
Bangalore - 43.
Sri.K.K.Loganathan,
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Since dead, rep. by LRs.
31. Smt.K.L.Saraswathi,
W/o.K.K.Loganathan,
Aged about 58 years.
32. Sri.K.L.Jagadeesh Babu,
S/o.K.K.Loganathan,
Aged about 40 years.
33. Smt.Bahuchiranjeevi.
W/o.Chiranjeevi Rao,
Aged about 38 years.
34. Sri.K.L.Ramesh Babu,
S/o.K.K.Loganathan,
Aged about 36 years.
35. Smt.Chandrakala,
W/o.P.Kamalesh Rao,
Aged about 34 years.
Respondents 31 to 35 are
R/at.No.339,
Devasandra Extension,
Krishnarajapuram,
Bangalore - 36.
36. Smt.B.A.Indiramma,
D/o.Late B.M.Appa Reddy.
Aged about 72 years.
37. Smt.Sudarsini.V.
Grand D/o.Late B.M.Appa Reddy.
Aged about 52 years.
38. Sri.Manjunath,
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Grand S/o.Late B.M.Appa Reddy.
Aged about 35 years.
Respondents 36 to 39 are
R/at.No.13, 2nd Cross,
Shankarapuram,
Bangalore - 04. ...RESPONDENTS
(By Sri.K.P.Ashok Kumar, Adv., for C/R1-2;
Notice to other respondents dispensed
with vide order dated 2.12.13)
*******
This petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the order dated
21.11.2013 passed by the VII Addl. City Civil Judge,
Bangalore (CCH19_ allowing the memo dated 7.11.13 in
O.S.No.8842/1980 vide Ann-G to the W.P. and consequently
reject the memo dated 7.11.13 vide Ann-D.
These petitions coming on for Preliminary Hearing in 'B'
Group this day, the Court made the following:-
ORDER
In W.P.No.45893/2013, the petitioner has called in question, the order dated 22.7.2013, passed by the Trial Court in O.S.No.8842/1980 vide Annexure-N.
2. In W.P.No.53688/2013, the petitioner has called in question, the order dated 21.11.2013, passed by the Trial Court in O.S.No.8842/1980 vide Annexure-G.
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3. By the impugned order at Annexure-N, the Trial Court has declined to permit the petitioner to further cross examine PW-1 on the ground there is no defence on behalf of the defendant. Thereafter, the memo filed by the petitioner dated 23.7.2013 also has been rejected.
4. By the impugned order at Annexure-G, the Trial Court has declined to permit the petitioner in W.P.No.53688/2013 to cross examine PW-3 beyond the pleadings.
5. Aggrieved by that, the petitioners have filed these writ petitions.
6. Briefly stated the facts are:
The original plaintiff Sri. B.M.Appaswamy and his sisters have filed suit in O.S.No.8842/1980 for partition and separate possession. In the course of proceedings Sri.B.M.Appasway has died. The respondents 1(a) and (b) in W.P.No.45893/2013 have come on record as LRs of deceased
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Sri.B.M.Appaswamy based on the Will dated 30.8.1980 said to have been executed by Sri.B.M.Appaswamy.
Sri.B.K.Ravichandra, the respondent No.1(a) in W.P.No.45893/13 has been examined as PW.1. The petitioner has cross-examined PW.1 partly. Thereafter, the Trial Court has declined to permit the petitioner to further cross examine PW-1 Sri.B.K.Ravichnadra on the ground that there is no defence on behalf of the petitioner. Aggrieved by that, the petitioner has filed W.P.No.45893/2013.
7. In W.P.No.53688/2013, the Trial Court has declined to permit the petitioner to cross examine PW-3 beyond pleadings. It is stated, PW.1 Ravichandra was considered as PW.3 during the course of cross-examination by defendant No.8.
8. The learned counsel for the petitioner in W.P.No.45893/2013 contended that the impugned order cannot be sustained in law. He also submitted that the Trial Court has erred while passing the impugned order declining
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to permit the petitioner from cross examining PW.1 Sri.B.K.Ravichandra who is subsequently treated as PW.3 on the ground that there is no defence on behalf of the petitioner. He also submitted that though the petitioner has not filed the written statement, he can cross examine the witness to demolish the case of the plaintiff and therefore, the Trial Court was not justified in declining the petitioner from cross examining Sri.B.K.Ravichandra. He placed reliance on the following decisions:
AIR 1989 S.C. page 162 ILR 2002 Kar page 260
9. The learned counsel for the petitioner in W.P.No.53688/2013 submitted that the impugned order declining the petitioner from cross examining PW-3 on the ground that it is beyond pleadings is totally incorrect and cannot be sustained in law. Further he submitted that cross examination cannot be confined to pleadings only. He placed
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reliance on the decision of this court reported in ILR 2009 Kar page 423.
10. As against this, the learned counsel for the respondents 1(a) and (b) who are the respondents 1 and 2 in W.P.No.53688/2013 submitted that the impugned orders do not call for interference. He also submitted that the petitioner in W.P.No.45893/2013 has no specific defence and therefore, he cannot be allowed to cross examine the witness and the Trial Court has rightly declined to permit the petitioner to cross examine Ravichandra and therefore, the impugned order does not call for interference. He also submitted that the petitioner in W.P.No.53688/13 along with others claim to be the legal heirs of deceased Sri.B.M.Appaswamy and they can establish that they are the class-I heirs. Apart from this, there is no plea regarding Will and therefore, the Trial Court has rightly declined to permit the petitioner to cross examine PW-3 beyond pleadings. Therefore, the impugned order does
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not call for interference. He placed reliance on the following decisions:
AIR 2003 SC page 1905 AIR 1976 Kar page 226 AIR 2009 SC page 2463 AIR 1972 Patna page 81 AIR 1982 J & K page 83
11. I have carefully considered the submissions made by the learned counsel for the parties.
12. The point that arises for my consideration is:
Whether the impugned orders call for interference?
13. It is relevant to note, the suit in O.S.No.8842/1980 has been filed by the original plaintiff Sri.B.M.Appaswamy and his sisters for partition and separate possession of the suit schedule property. In the course of proceedings, the original plaintiff Sri.B.M.Appaswamy has died. The respondents 1(a) and (b) who are respondents 1 and 2 in W.P.No.53688/2013 have come on record as L.Rs of
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the deceased original plaintiff Sri.B.M.Appaswamy based on the Will said to have been executed by Sri.B.M.Appaswamy. B.K.Ravichandra has been examined as PW-1 subsequently considered as PW.3. The petitioners have partly cross examined Sri.B.K.Ravichandra. Thereafter, the respondents 1(a) and (b) have raised objections that the petitioner in W.P.No.45893/2013 cannot cross-examine Ravichandra on the ground that the petitioner has not filed any written statement. The Trial Court has passed the impugned order stating that the petitioner cannot be allowed to further cross examine Ravichandra as the petitioner has not defence. The Hon'ble Supreme Court in Modula India vs. Kamaksha Singh DCO reported in AIR 1989 S.C. page 162 has observed as follows at page.175:
"We agree that full effect should be given to the words that defence against ejectment is struck off. But does this really deprive the defendant tenant of further participation in the case in any manner? While it is true that, in a broad sense, the right of defence takes in, within its canvass, all
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aspects including the demolition of the plaintiff's case by the cross-examination of his witnesses, it would be equally correct to say that the cross- examination of the plaintiff's witnesses really constitutes a finishing touch which completes the plaintiff's case. 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 plaintiff's 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.
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To us it appears that the basic principle that where a plaintiff comes to the court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the Court can only do this by looking the plaintiff's evidence and pleadings supplemented by such questions as the court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the court under a great handicap in discovering the truth or otherwise of the plaintiff's statements. For after all, the court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiff's averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiff's case.
We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None
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of the observations or decisions cited have gone to the extent of suggesting that, inspite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case."
14. Similarly, in Basalingappa Chinnappa Goudar and others Vs Shantavva and others reported in ILR 2002 KAR page 260 this Court has observed as follows at page 264:
"Therefore, it becomes clear in a suit the defendant has the right to show that the case 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
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accepted and no decree can be passed in favour of the plaintiff."
15. From the above decisions, it is clear, though the defendant has not filed written statement the defendant can cross examine the plaintiff and his witnesses to demolish the case of the plaintiff. Therefore, the Trial Court was not justified in denying the petitioner in W.P.No.45893/2013 from cross examining PW-3 B.K.Ravichandra.
16. Similarly, in W.P.No.53688/13 the petitioner has not been permitted to cross examination the witness i.e., PW- 3 on the ground that there is no pleading. In Sri.Ramachandra and another vs. Sri.Vithal and others reported in ILR 2009 KAR page 423 this court has considered the scope and purpose of cross examination. At paras.11 and 12 it is observed as follows:
"11. What is the purpose of cross examination?
The object of cross examination is two fold. Firstly, to weaken, qualify or destroy the case of
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the opponent. To impeach the accuracy, credibility and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of cross examining party. Secondly, to establish the party's own case by means of his opponents witnesses. It may be either by way of admissions or by way of eliciting facts which would prove the case of the cross examining party. It is like a double edged sword. Properly used it may destroy the opponents case and support the cross examining party. Otherwise it may destroy the case of the cross examining party. It is an art which requires great skill. It can be acquired only by training and experience.
.
12. Who has the right to cross-examine?
The right of cross examination is that of the adverse party. It is left to his discretion. He cannot be compelled to cross examine. If he so desires, he can exercise that right. If a party do not hold the position of an adverse party, he has no right of cross examination. The condition precedent for giving an opportunity to cross examine a opposite
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party is that, either from the pleading of the parties or in the evidence, there should exist conflict of interest between the parties. It should be shown that the evidence on record adversely affect his interest and that his interest is adverse to the interest of the party who has given evidence and therefore, he is in the position of an adverse party. Once it is demonstrated that the interest is common, there is no conflict of interest, and no evidence is adduced affecting the interest of the defendant, then there is no question of giving an opportunity to such a party to cross examine the opposite party. The main object of such cross examination is to demolish the case of the opposite party and if possible to substantiate the defence. If there is no conflict of interest, there is no claim, there is no defence, and there is nothing to be demolished in the case set up, there is no adverse party and the opposite party has no right to cross examine. Only when the opposite party stands in the shoes of an adverse party, he has a right of cross examination."
17. From the above decisions, it is clear, the Trial Court was not justified in denying the petitioners from further
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cross examining PW-3 B.K.Ravichandra. Therefore, the impugned orders cannot be sustained in law.
Accordingly, the writ petitions are allowed and the impugned orders passed by the Trial Court in O.S.No.8842/1980 vide Annexure-N, dated 22.7.2013 in W.P.No.45893/2013 and vide Annexure-G, dated 21.11.2013, in W.P.No.53688/13 are hereby set aside. The Trial Court is directed to permit the petitioners to cross examine PW-3 B.K.Ravichandra or any other witness who may be examined in the light of the observations made in AIR 1989 S.C. page 162, ILR 2002 Kar page 260 and ILR 2009 Kar page 423. It is made clear that the petitioners shall cross examine the witness without seeking any adjournment.
I.A.No.1/14 does not survive for consideration and accordingly, it is rejected.
Sd/-
JUDGE Dvr.