Karnataka High Court
Mr Naveen Xavier vs Mr. K Raja on 11 September, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:32818
WP No. 3882 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 3882 OF 2021 (GM-CPC)
BETWEEN:
MR. NAVEEN XAVIER
S/O XAVIER,
C/O DEEP RAMCHAND
AGED ABOUT 32 YEARS,
R/AT NO.17/23, 1ST CROSS,
SPENCER'S ROAD, FRAZER TOWN,
BENGALURU-560 005.
PRESENTLY R/AT NO.24,
ELACKET HOUSE, PEACE LAYOUT,
13TH CROSS, OIL MILL ROAD,
BENGLAURU-560 084.
...PETITIONER
(BY SRI. SUDARSHAN S., ADV.)
Digitally signed by
A K CHANDRIKA AND:
Location: High
Court of Karnataka
MR. K RAJA
S/O LATE KANNAPPAN
AGED ABOUT 56 YEARS,
R/AT NO.152, 1ST MAIN ROAD,
1ST BLOCK, DODDA BOMMASANDRA
VIDYARANYAPURA POST,
BENGALURU-560 097.
...RESPONDENT
(BY SRI. MALLESH R., ADV.)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
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NC: 2023:KHC:32818
WP No. 3882 of 2021
DATED 20.01.2021 AND 18.02.2021 IN S.C.NO.589/2020
PASSED BY THE XXIV ADDL. SMALL CAUSES JUDGE AND ADDL.
CMM BENGALURU PRODUCED AT ANNEXURE-B AND DIRECT
THE TRAIL COURT TO ACCEPT THE WRITTEN STATEMENT
FILLING BY THE PETITIONER IN S.C.NO.589/2020 PASSED BY
THE XXIV ADDL. SMALL CAUSES JUDGE AND ADDL. CMM
BENGALURU.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, defendant in S.C.No.589/2020 on the file of XXIV Additional Small Causes Judge and A.C.M.M., Bangalore is before this Court, questioning order dated 18.02.2021 whereby the trial Court, on filing of the affidavit evidence by the respondent/plaintiff and marking of documents, posted the suit for arguments.
2. Heard learned counsel Sri.Sudarshan S for petitioner and learned counsel Sri.Mallesh R for respondent. Perused the writ petition papers.
3. Learned counsel for the petitioner/defendant would submit that the suit of the respondent/plaintiff is one for a judgment and decree directing the petitioner/defendant to pay a sum of Rs.2,00,000/- along with interest. Learned -3- NC: 2023:KHC:32818 WP No. 3882 of 2021 counsel would submit that admittedly, the petitioner/ defendant has not filed written statement. But, non-filing of written statement cannot be a ground to deny cross- examination of plaintiff's witness. Learned counsel would submit that on 18.02.2021, the respondent/plaintiff filed affidavit evidence and marked documents Ex.P1 to Ex.P4. The trial Court, without providing an opportunity to cross- examine the plaintiff's witness proceeded to post the suit for arguments. Learned counsel would submit that the trial Court committed an error in not providing an opportunity to cross-examine the plaintiff's witness. Thus, he prays for allowing the writ petition.
4. Learned counsel for the respondent/plaintiff would support the order of the trial Court and submits that the petitioner/defendant has not filed his written statement, hence, he would not be entitled to cross-examine plaintiff's witness. Further he submits that the petitioner/ defendant has not prayed for any opportunity to cross-examine -4- NC: 2023:KHC:32818 WP No. 3882 of 2021 plaintiff's witness. Thus, he prays for dismissal of the writ petition.
5. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the petitioner/defendant would be entitled for an opportunity to cross-examine plaintiff's witness.
6. A Division Bench of this Court in the case of SHRI NIJAMUDDIN AND ANOTHER VS. SMT.AKHTRBEGAM AND OTHERS (ILR 2021 KAR 3297), had an occasion to consider similar fact situation where for non-filing of written statement, defendant was debarred from cross- examining witnesses of the plaintiffs. In that circumstance, the Division Bench at paragraphs 14 and 15 has held as follows:
"14. Therefore in view of the above, it is evident that an adverse party is not debarred from cross examining the plaintiff and plaintiff's witness for the simple reason that written statement is not filed. The defendant only loses his right to put forth his defence. But the -5- NC: 2023:KHC:32818 WP No. 3882 of 2021 defendant can show to Court by cross examining the plaintiff's witness that plaintiff's evidence cannot be accepted straight away. If the Court is satisfied, suit cannot be decreed.
15. A question regarding right of the adverse party to cross examine the petitioner when defence is struck off came for consideration before Hon'ble Supreme Court of India in an appeal which arose from the judgment in an eviction suit between landlord and tenant. It is held that simply because there is no defence, the adverse party is not debarred from cross examining the petitioner and can show to the Court the merits or demerits of the petitioner's case. The said case is reported in (1988) 4 SCC 619 : AIR 1989 SC 162, Modula India v. Kamakshya Singh Deo,. At paragraph No. 12 of the said judgment it is held as under:
xxxxxx xxxxxx 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 -6- NC: 2023:KHC:32818 WP No. 3882 of 2021 manner? While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiffs 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 plaintiffs 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 plaintiffs witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross- examination. The right of the defence to cross-examine the plaintiffs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs 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 -7- NC: 2023:KHC:32818 WP No. 3882 of 2021 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.
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 plaintiffs 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 plaintiffs 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 -8- NC: 2023:KHC:32818 WP No. 3882 of 2021 with the detailed facts of a particular case and that can assist the Court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiffs case."
7. In yet another decision, a Co-ordinate Bench of this Court in the case of BASALINGAPPA CHINNAPPA GOUDAR AND OTHERS VS. SHANTAVVA AND OTHERS (ILR 2002 KAR 260), placing reliance on the decisions of the Hon'ble Apex Court at paragraph 5 has held as follows:
"5....................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 -9- NC: 2023:KHC:32818 WP No. 3882 of 2021 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 accepted and no decree can be passed in favour of the plaintiff."
8. The defendant who has not filed written statement cannot be denied opportunity to cross-examine plaintiff's witness. The trial Court committed an error in proceeding to post the suit for arguments without providing opportunity to the petitioner/defendant to cross-examine plaintiff's witness. Hence, the following order:
The trial Court is directed to provide an opportunity to the petitioner/defendant to cross-examine the plaintiff/ P.W.1 and thereafter proceed in accordance with law.
With the above, the writ petition stands disposed of.
Sd/-
JUDGE MPK CT:bms List No.: 1 Sl No.: 66