Karnataka High Court
Sri Ravindranath Richard Hartman vs Smt Chamapak Hartman on 4 April, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.6410 OF 2022 (GM-CPC)
BETWEEN
SRI RAVINDRANATH RICHARD HARTMAN
S/O LATE MR C P HARTMAN,
AGED ABOUT 57 YEARS,
R/AT NO.2, SHERMAN C T,
PLAIN BOROUGH,
NEW JERSEY-08536
U.S.A
PRESENTLY R/AT NO.8,
6TH 'C' MAIN,
GOURAV NAGAR,
NEAR RBI LAYOUT,
J P NAGAR 7TH PHASE,
BENGALURU-560078
...PETITIONER
(BY SRI MANJUNATH PRASAD H N, ADVOCATE)
AND
1. SMT CHAMPAK HARTMAN
D/O LATE MR C P HARTMAN,
W/O DR. SUNIL D INCHAL,
AGED ABOUT 59 YEARS,
R/AT NO.43, 6TH MAIN ROAD,
GAURAV NAGAR, J P NAGAR,
7TH 'A' PHASE,
BENGALURU-560078.
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2. SRI CHANDRAKANTH HARTMAN
S/O LATE MR. C P HARTMAN,
AGED ABOUT 60 YEARS,
R/AT NO.302, MONROE A,
IRVINE CALIFORNIA-92620
U S A.
....RESPONDENTS
(BY SRI SHIVANANDA S, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER 24TH
FEBRUARY, 2022 PASSED ON IA.NO.7 AND 8 IN ORIGINAL SUIT
NO. 157 OF 2015 PASSED BY THE LEARNED VII ADDITIONAL
CITY CIVIL AND SESSION JUDGE, BENGALURU(CCH-
19),PRODUCED AT ANNEXURE-J AND CONSEQUENTLY ALLOW
THE IA NO.7 AND 8 AND PERMIT THIS PETITIONER TO CROSS
EXAMINE THE PW1 IN THE ABOVE SUIT AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the defendant No.2 in Original Suit No.157 of 2015 on the file of City Civil and Sessions Judge, Bengaluru, challenging the order dated 24th February, 2022 dismissing IAs.7 and 8. Perusal of the writ petition would indicate that the plaintiff has filed suit, seeking relief of partition and separate possession in respect of the suit schedule property. The suit is contested by filing the written statement 3 bydefendants. Issues have been framed based on the pleadings. When the matter was set down for evidence of PW1, the PW1 has filed affidavit in lieu of evidence on 05th October, 2021 and the plaintiff marked, altogether 15 documents and the case was adjourned to 16th November, 2021 for further examination. Thereafter, the suit was listed before the trial Court on several occasions. The trial Court by order dated 22nd December, 2021 taken the cross-examination of PW1 as Nil. In the meanwhile, defendant No.2 filed two applications in IAs.7 and 8, seeking to recall the order dated 22nd December, 2021 and permit him to cross-examine PW1. The said applications were contested by the plaintiff. The trial Court, after considering the material on record, by order dated 24th February, 2022, dismissed the applications. Feeling aggrieved by the same, the defendant No.2 has presented this writ petition.
2. I have heard Sri Manjunath Prasad, learned counsel appearing for the petitioner and Sri Shivanand, learned counsel appearing for the respondent.
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3. Sri Manjunath Prasad, learned counsel appearing for the petitioner invited the attention of the Court to the order sheet maintained by the trial Court and submitted that the trial Court has failed to grant an opportunity of hearing to the defendants to cross-examine, since the cross-examination is an essential part in the proceedings to unearth the truth in the suit. Therefore, he submitted that, the impugned order passed by the trial Court requires interference in this writ petition.
4. Per contra, Sri Shivanand, learned counsel appearing for the respondent No.1 sought to justify the impugned order passed by the trial Court and further submitted that the trial Court has granted ample opportunity to defendant No.2 to cross- examine PW1, however, the said opportunity has not been coined by the defendants to cross-examine and therefore, he submitted that there is no infirmity in the order passed by the trial Court.
5. After hearing the learned counsel appearing for the parties, it is not in dispute that the suit is filed by the plaintiff seeking partition and separate possession in respect of the suit 5 schedule property. It is also not in dispute that on 05th October, 2021, PW1 presented himself before the Court and filed affidavit in lieu of evidence before the trial Court and marked 15 documents as Exhibits P1 to P15. However, the suit was adjourned to 16th November, 2021 for further chief-examination of PW1. On 16th November, 2021, it was submitted before the trial Court by the plaintiff that no further examination-in-chief. Accordingly, the case was adjourned to 02nd December, 2021 for cross-examination of PW1 and thereafter, the case was adjourned to 22nd December, 2021. On 22nd December, 2021, since the defendant has not made any effort to cross-examine PW1, accordingly, the trial Court has taken the cross- examination of PW1 as Nil. Immediately on the next date of hearing, i.e on 18th January, 2022, the learned counsel representing defendant No.2 has taken No-objection certificate from the earlier Advocate and filed power and as such, filed applications in IAs.7 and 8 seeking recalling the order dated 22nd December, 2021 and seeking permission to cross-examine PW1. The trial Court, after hearing the learned counsel appearing for the parties, on 24th February, 2022, dismissed the applications. 6 Having regard to the fact that the affidavit, in lieu of evidence was filed on 05th October, 2021, and the matter was adjourned to 02nd December, 2021 for cross-examination of PW1 and on the next date of hearing, i.e on 22nd December, 2021, the trial Court has taken the cross-examination of PW1 as Nil. It is trite law to provide an opportunity to the parties and also the essential part of the suit is of cross-examination by the other side and same cannot be denied unless an opportunity of hearing is given to the parties to the suit. In that view of the matter, I am of the view that the order dated 24th February, 2022 is liable to be set aside, by allowing IAs.7 and 8, and permit the defendants to cross-examine PW1 on the next date of hearing without seeking any further adjournment in the matter. Accordingly, it is ordered.
6. I find force in the submission made by Sri Shivanand, learned counsel appearing for the respondent that defendants/petitioners herein have not made any effort to cross- examine PW1 on two occasions and in order to compensate the same, the defendants are liable to pay Rs.2,000/- to the plaintiff 7 and to cross-examine PW1 on the next date of hearing without seeking any further adjournment in the matter. Petition is accordingly disposed of.
Sd/-
JUDGE lnn