Karnataka High Court
Prabhu S/O Sidramappa Benakanhalli vs Shafari W/O Saifansaheb Walikar on 22 February, 2012
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED TH1S THE 22Nf) DAY OF FEBRUARY 2012
BEFORE
THE HON'BLE MRJUSTICE S.NLSATYANARAYANA
WRiT PETITION NO.80617/2009 (GM-CPC)
BETWEEN
1. PRABHU S/O SJI)RAMAPPA
BENAKANHALLI, (HOSAMAN1).
AGE: 47 YEARS. R/O INGALAGI.
TQ. INDI.
2. VIYFAL S/a SIDRAMAPPA
BENKANHALLI (HOSAMANI),
AGE: 40 YEARS. 0CC AGRICULTURE.
R/O. INGALAGI, TQ. INDI.
PETITIONERS
(BY SRI. SRINIVAS B. PATIL FOR
SRI. D. P. AMBEKAR, ADVOCATE)
AND
1. SHAFARI W/O SAIFANSAHEB WALIKAR.
AGE: 50 YEARS, 0CC: HOUSEHOLD WORK.
R/O HIREBEVANOOR. TQ. INDI.
2. NOORJAHAN D/0 SAIFANSAHEB WAL1KAR,
AGE: 30 YEARS. 0CC: HOUSEHOLD WORK.
3. ASHRAFABI D/O SAIFANSAHEB WALIKAR,
AGE: 27 YEARS. 0CC: HOUSEHOLD WORK.
4. FATIMA D/0 SAIFANSAHEB WALIKAR.
AGE: 24 YEARS. CCC: HOUSEHOLD WORK.
5. MEHABOOB Sb SAIFANSAHEB WALIKAR,
AGE: 22 YEARS, 0CC: AGRICULTURE,
6. CHANDSAB S/C SAIFANSAHEB WALIKAR.
AGE: 20 YEARS. 0CC: AGRICULTURE.
7. RAJAKSAHEB S/O BASHYASAHEB MAKANDAR.
AGE: 50 YEARS. 0CC: AGRICULTURE.
ALL ARE R/O HIREBEVANOOR,
TQ. INDI, DIST: BIJAPUR.
RESPONDENTS
(BY SRI. SANJEEV KUMAR C. PATIL. ADV. FOR
SRI. SHIVANAND V. PAYI'ANSHEYfI, ADV, FOR R5,
NOTICE TO R6 IS SERVED, NOTICE TO R7 DEEMED TO HAVE
BEEN SERVED. R8 DELETED)
THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANN-F
VIZ. THE IMPUGNED ORDER DATED 27.11.2008 ON MEMO
DATED 07.10.2008 PASSED BY THE CIVIL JUDGE (SR.DN.)
INDI IN O.S,N0.210/2007 ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY. THE COURT MADE THE
FOLLOWING: -
ORDER
Defendant, Nos.3 and 4 in O.S.No.210/2007 on the file of Civil Judge (Sr.Dn.), mdi (Old O.S.No.204/2005 on the file of Civil Judge (Sr.Dn.), Bijapur) have come up in this writ petition Impugning the order dated 17.10.2008.
2. The brief facts leading to this petition are as under:
Petitioner Nos.1 and 2 are defendant Nos.3 and 4 and respondent Nos. 1 to 6 are plaintiff Nos. 1 to 6 and 7th respondent is first defendant in O.S.No.210/2007 pending on the file of Civil Judge (Sr.Dn.), mdi. The admitted facts are that plaintiff Nos. 1 to 6 ified a suit for declaration and permanent injunction in respect of land bearing RS.No.42/ 1 measurIng to the extent of 21 acres, 16 guntas situated at Hirebevanoor village, mdi taluka. Bijapur district. In the said suit, first defendant filed written statement and other defendants adopted the same.
Thereafter, issues were framed and evidence is being recorded. In the written statement, the specific stand taken by defendants is to the effect that in respect of suit property a settlement was arrived at between the parties in O.S.No.210/2007 which has reached finality. Therefore, thing of subsequent suit in O.S.No.210/2007 and O.S.No.204/2005 by respondent Nos.1 to 6 herein is hit by principles of resjudicata. It is also stated that when the evidence was being recorded, first plaintiff was N -4- examined as PW- 1 and it appears that said PW- 1 has admitted the title of defendants. so far as. suit schedule properties are concerned. In the said proceedings though cross-examination of PW- 1 was recorded substantially she abstained from the proceedings by not appearing for further cross-examination.
3. The record discloses that subsequently counsel Ibr plaintitis in the court below filed a memo on 17.10.2008 stating that in lieu of examination-in-chief of plaintiffs an affidavit was tiled and thereafter, 18t plaintiff was tendered for cross- examination. It is stated that l plaintiff was not able to understand the questions put to her in the course of cross- examination due to her old age ailments, Hence, it was prayed that evidence of PW. 1 be struck down as not pressed and also the application filed for recording her cross-examination through Court commissioner may be dismissed as not pressed. On the aforesaid memo. the order impugned in this writ petItion is passed
4. Perusal of the order impugned clearly discloses that court below while considering the memo dated 17.10.2008, (which is wrongly shown as 7.10.2008 in the order sheet), has -5- observed that so far as evidence of PW. 1 recorded In part Is concerned, the admissibility or otherwise of the same will be considered at the time of final disposal. Since plaintiff has contended that PW. 1 Is unable to give evidence plaintiffs are permitted to adduce evidence through power of attorney holder and the application In IA.8 filed under Order 26 Rule 4. CPC filed seeking appointment of Court Commissioner to cross- examine PW. 1 was dismissed as not pressed.
5. Heard the counsel for petitioners who are defendants 2 and 4 In the court below and as well as counsel for contesting respondents, namely, plaintiffs 1 to 6. The fact that PW. 1 has ified her evidence in chief in the form of affidavit is not in dispute. It is further not in dispute that she has participated in cross-examination and has been cross-examined substantially at length. Merely because there are certain admissions, which have come In the course of cross- examination, the same would not entitle the plaintiffs to file an application to seek withdrawal of their evidence led through PW. 1 and to lead fresh evidence through power of attorney holder. Whatever admissions that have come on record through -6- PW. 1 cannot be taken away either by filing memo or application and the prayer to eschew the same also cannot be entertained. There Is gross irregularity committed by the court below in this behalf in keeping the said prayer open. that is to consider eschew of the evidence of PW. 1 or otherwise at the stage of final hearing of suit. At no point of time evidence which has already come on record can be taken away by this short cut method. It is further observed by this Court that the attempt on the part of plaintiffs in trying to get the power of attorney holder of PW. 1 coming on record and giving evidence is nothing but an attempt to improve upon their case after seeking eschew of the admissions made by PW. 1 is impermissible. When P1W. 1 is substantially cross-examined, the option open for P1W. 1 is to submit herself for further cross-examination or In the alternative for plaintiffs to give up 1W. 1. In that event, the admissions which are already there would enure to the benefit of defendants and the same cannot be taken away.
6. WIth these observations writ petition is disposed of. It is needless to say that whatever admissions made by 1 plaintiff as P1W. 1 would remain on record and the same is SF' required to be taken into consideration while disposing of original suit.
Sd/ JUDGE Srt/nd