Karnataka High Court
Sri. M. Papanna vs M/S. Valmark Homes on 3 February, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI
WRIT PETITION NO.5482/2016 (GM-CPC)
BETWEEN:
1. SRI. M. PAPANNA,
S/O. MUNIYAPPA,
SINCE DEAD BY HIS LRS.,
1(a) SMT.YELLAMMA,
W/O LATE M.PAPANNA,
AGED ABOUT 52 YEARS,
2. SRI. ANAND H.P.,
S/O LATE M. PAPANNA,
AGED ABOUT 36 YEARS,
3. SRI. MANJUNATH H.P.,
S/O LATE M. PAPANNA,
AGED ABOUT 28 YEARS,
4. SMT. LATHA,
D/O. LATE M. PAPANNA,
AGED ABOUT 30 YEARS,
5. SMT. UMA,
D/O LATE M. PAPANNA,
AGED ABOUT 29 YEARS,
ALL ARE RESIDING AT NO.71/J,
3RD CROSS, MARAMMA TEMPLE STREET,
HULIMAVU, BANNERGHATTA ROAD,
BANGALORE - 560 076.
...PETITIONERS
(BY SRI.V.SHIVAKUMAR, ADVOCATE FOR PROPOSED LR OF P1,
P2 TO P5)
2
AND:
M/S. VALMARK HOMES,
A PARTNERSHIP FIRM
HAVING ITS OFFICE AT NO.12/5, 2ND FLOOR,
DICKENSON ROAD,
BANGALORE.
REPRESENTED BY ITS PARTNERS,
1. MRS. VIPULA V REDDY,
2. MR. TEJAS H.V.
3. M/S. NAKOA CONSTRUCTIONS LIMITED
REPRESENTED BY ITS DIRECTOR,
MR. MAHAVEER GULECHA.
... RESPONDENTS
(BY SRI.RADHANANDAN B.S., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 11.01.2016 AT ANNEXURES - H
PASSED BY XIX ADDITINAL CITY CIVIL AND SESSIONS JUDGE
AT BANGALORE ON I.A.III AND IV IN O.S.1557/2011 AND
ALLOW THE TWO APPLICATIONS I.E., I.A.III AND IV AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners aggrieved by the order on I.A.Nos.III and IV dated 11.01.2016 passed in O.S.No.1557/2011 by the XIX Additional City Civil and Sessions Judge, Bengaluru (CCH-18) have filed this writ petition.
3
2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
The respondent has filed a suit in O.S.No.1557/2011 for recovery of money of
Rs.59,32,000/- with interest. The petitioners have filed their written statement. The trial Court framed the issues. The respondent appeared and filed an affidavit in lieu of examination-in-chief and the case is posted for further cross-examination by the petitioners. Learned counsel for the petitioners was absent on the said date. The trial Court taking note of the absence of the counsel for the petitioner taken the further cross-examination of PW-1 as nil. The petitioners have filed an application - I.A.No.III to reopen the case and I.A.No.IV to recall PW-1 for the purpose of cross-examination. The respondent opposed the said applications. The trial Court vide 4 order dated 11.01.2016 rejected the applications filed by the petitioners i.e., I.A.Nos.III and IV. Hence, this writ petition.
3. Heard the learned counsel for the petitioners and the learned counsel for the respondent.
4. Learned counsel for the petitioners submits that the original defendant No.1 died living behind the petitioners. Learned counsel for the petitioners could not cross-examine PW-1, as there was no instructions from the petitioners to cross-examine PW-1. He further submits that the trial Court ought to have granted a permission to the petitioners to cross- examine PW-1. He further submits that the trial Court has not given sufficient opportunity to the petitioners to cross-examine PW-1. He further submits that the trial Court has committed an error in rejecting the 5 applications. Hence, on these grounds, he prays to allow the writ petition.
5. Per contra, the learned counsel for the respondent supports the impugned order. He further submits that the trial Court has granted sufficient opportunity to the petitioners to cross-examine PW-1. Inspite of availing sufficient opportunity, the petitioners did not choose to cross-examine PW-1. He further submits that the trial Court was justified in rejecting the applications filed by the petitioners. Hence, he submitted that the impugned order passed by the trial Court is just and proper and does not call for any interference by this Court. Hence, on these grounds, he prays to dismiss the writ petition.
6. Heard and perused the records and considered the submissions of the learned counsel for the parties.
6
7. The respondent filed a suit in O.S.No.1557/2011 for recovery of money. The petitioners appeared and filed their written statement. The trial Court framed the issues. Thereafter, respondent was cross-examined as PW-1. Learned counsel for the petitioners did not cross-examine PW-
1. Hence, the trial Court has taken the cross-
examination of PW-1 as nil and the defendants/petitioners have not lead any evidence and the evidence of the petitioners were taken as nil by the trial Court and thereafter, the case was disposed of on 12.11.2013 and decreed the suit of the respondent. The petitioners being aggrieved by the judgment and decree passed by the trial Court filed a Misc.No.28/2014 for setting aside the judgment and decree. The trial Court after hearing the parties allowed Misc.No.28/2014 and set aside the judgment and decree passed by the trial Court and thereafter, 7 the matter is posted for cross-examination of PW-1. Learned counsel for the defendants/petitioners has partly cross-examined PW-1 on 29.09.2015. Original defendant No.1 died. Petitioners could not give instruction to the counsel appearing on behalf of them before the trial Court. The counsel for the petitioner could not further cross-examine PW-1. The trial Court has taken cross-examination of PW-1 as nil. If the petitioners are permitted to cross-examine, no injustice would be caused to the respondent. The respondent can be compensated in terms of money. In view of the above discussion, I pass the following:
ORDER i. The writ petition is allowed. ii. The impugned order dated 11.01.2016 is set aside.
iii. I.A.Nos.III and IV filed by the petitioners are allowed subject to payment of cost of 8 Rs.10,000/- payable to the Advocates Welfare Fund within a period of one month from the date of receipt of a copy of this order. If the petitioners fails to cross-examine PW-1 within 2 dates of hearing, they will not be entitled for the benefit of this order.
However, the parties are directed to co-operate with the trial Court for early disposal.
Sd/-
JUDGE SJK