Karnataka High Court
Dr Ezeckiel Shantha Kumar J.C. vs The Indian Church Of Nazarene on 28 August, 2018
Author: S G Pandit
Bench: S.G. Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST 2018
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.33114 /2017 (GM-CPC)
BETWEEN:
1. DR. EZECKIEL SHANTHA KUMAR J.C.
AGED ABOUT 50 YEARS
S/O LATE E.C.JAYAPAUL CHELLAIAH,
2. MRS.SHANTHA SREE
AGED ABOUT 40 YEARS,
W/O DR.EZECKIEL SHANTHA
KUMAR J.C.,
BOTH 1 & 2 ABOVE RESIDING AT:
NO.586
JAYASANGHA NILAYA
9TH "A" MAIN, 8TH CROSS
R.P.C.LAYOUT
BANGALORE-560 040. ... PETITIONERS
(BY SRI.SURESH KUMAR.S, ADV.)
AND:
1. THE INDIAN CHURCH OF NAZARENE
A BODY REGISTERED UNDER THE
PROVISIONS OF THE KARNATAKA
SOCIETIES REGISTRATION ACT, 1960
REGD. OFFICE AT:
NO.3, NORRIS ROAD
RICHMOND TOWN
BANGALORE-560 025.
2. REV.M.CHRISTADAS
AGED ABOUT 51 YEARS
2
SON MR.MATHIAS
RESIDING AT:
SHALOM CHURCH OF NAZARENE
7TH CROSS, 2ND MAIN
SOUDAMANI LAYOUT
BANGALORE-560 062.
3. REV.SUNIL R.DANDGE
AGED ABOUT 53 YEARS
S/O MR.RAJARAM
RESIDING AT
NO.419, 8TH "C" MAIN
4TH CROSS, 1ST BLOCK
HRBR LAYOUT, KALYAN NAGAR
BANGALORE-560 043.
4. MR.S.JAYAKUMAR
AGED ABOUT 62 YEARS
S/O MR.R.SELVARAJ
RESIDING AT:
CHURCH COMPOUND
THOREYUR ROAD
MUSURI-621 211
TIRUCHIRAPALLI DISTRICT.
5. REV. SIMON JOTHI
AGED ABOUT 47 YEARS
S/O MR.JOTHI
RESIDING AT:
NO.93/A, EX-SERVICEMENT STREET
M.S.NAGAR P.O.
BANGALORE-560 032.
6. MR.K.PARTHASARATHY
AGED ABOUT 58 YEARS
RESIDING AT:
NO.28/1, VIVEKANANDA STREET
SHASTRI NAGAR
ERODE-638002
TAMIL NADU.
7. REV.S.MUTHUKUMARASWAMY
AGED ABOUT 64 YEARS
S/O MR.SUBBAIAH
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RESIDING AT:
DAVID MEMORIAL CHURCH OF NAZARENE
OBSERVATORY ROAD
KODAIKANAL
TAMILNADU. ... RESPONDENTS
(BY SRI. REUBEN JACOB, ADV. FOR R1, R2, R3, R5, R6 & R7
PETITION AGAINST R4 ABATED VIDE ORDER DATED
28/08/2018)
********
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER ON I.A. UNDER ORDER XVIII RULE 17 READ WITH
SECTION 151 OF CPC DTD.21.04.2017 PASSED BY THE
LEARNED II ADDITIONAL SENIOR CIVIL JUDGE, BANGALURU
RURAL DISTRICT, BENGALURU, IN O.S.NO.519/2013 VIDE
ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court under Article 227 of the Constitution of India, challenging the order dated 21.04.2017 passed on I.A. in O.S.No.519/2013 on the file of Learned II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru.
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2. The petitioners are defendants and respondents are plaintiffs in O.S.No.519/2013 filed for cancellation of gift deed and for permanent injunction. As the cross- examination of PW.2 was taken as nil, the defendants filed application under Order 18 Rule 17 of CPC to re- call PW.2 for cross-examination, which application came to be rejected by order dated 21.4.2017, which is impugned in this writ petition.
3. Heard the learned counsel for both the petitioners as well as respondents and perused the writ papers.
4. Learned counsel for the petitioners submits that cross examination of PW.2 is very necessary to prove the case of the defendants. He submits that defendants may be given a final opportunity to cross-examine PW.2.
5. On the other hand, learned counsel for the respondents vehemently submits that sufficient opportunity was given to the defendants, but they have 5 failed to cross-examine PW.2. He further submits that on 17.07.2014 for the first time cross-examination of PW.2 was taken as nil. On 1.8.2014 at the instance of defendants, PW.2 was recalled and again on 20.08.2014 cross-examination of PW.2 was taken as nil. Again at the instance of the defendants, PW.2 was recalled and again on 13.01.2017 cross-examination of PW.2 was taken as nil.
6. The suit is one for cancellation of gift deed and for permanent injunction. It is seen from the impugned order that defendants were given sufficient opportunity to cross-examine PW.2. The trial Court is justified in dismissing the application filed by the defendants to recall PW.2 for cross-examination. But however, no person should go out of the Court with an impression that he has not been given sufficient opportunity to defend his case. As such, it is appropriate in the 6 interest of justice, to provide final chance to the defendants to cross-examine PW.2.
7. It is submitted by both the counsel that the case stands posted to 03.09.2018. Learned counsel for the respondents/plaintiffs submits that they would keep PW.2 present before the Court on 03.09.2018 to enable the defendants to cross-examine PW.2. It is made clear that defendants shall not take further adjournment and shall complete cross-examination of PW.2 on 03.09.2018.
8. It is submitted by the learned counsel for the respondents that PW.2 has to come from Kodaikanal and on every date of hearing, he has to incur expenses of Rs.4,000/- to come to Bengaluru.
9. Learned counsel for the petitioners - defendants submits that they would bear the conveyance and other expenses of PW.2 to attend the Court on 03.09.2018. 7
10. The defendants shall pay costs of Rs.10,000/- to PW.2 on 03.09.2018, which includes his conveyance and other expenses. On payment of the said amount, the defendants shall cross-examine PW.2 on 03.09.2018. If the defendants fail to cross-examine PW.2 on 03.09.2018, the Court shall take cross- examination of PW.2 as nil.
With the above observation, the writ petition stands disposed of.
Sd/-
JUDGE NG* CT:SK