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WP No. 50556 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI WRIT PETITION NO. 50556 OF 2017 (GM-FC)
BETWEEN:
SMT. UMADEVI
W/O K.SHANKAR,
AGED ABOUT 27 YEARS,
R/AT PULLAVANDALAPALLI VILLAGE
CHELUR HOBLI,
BAGEPALLI TALUK,
CHIKKABALLAPURA DISTRICT.
…PETITIONER
(BY SRI. CHANDRASHEKAR SWAMY K B.,ADVOCATE)
AND:
SRI. K. SHANKAR
S/O LATE KADARAPPA,
AGED ABOUT 51 YEARS,
R/AT NO.7, BBMP WARD NO.129
EERANAPALYA, VISHWANEEDUM POST,
BANGALORE-560 091.
…RESPONDENT
(BY SRI. K.N.DAYALU, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD.10.10.2017 VIDE ANNEX-H PASSED BY
THE V ADDL. PRINCIPAL JUDGE, FAMILY COURT, BANGALORE ON
I.A.NO.11 AND 12 RESPECTIVELY UNDER SECTION 151 OF CPC
FOR REOPEN THE CASE AND IA FILED UNDER ORDER 18 RULE 17
READ WITH SECTION 151 OF CPC TO RECALL THE PW1 FOR
FURTHER CROSS EXAMINATION IN O.S.NO.140/2011 AND ETC.
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THIS PETITION, COMING ON FOR PRELIMINARY HEARING-
B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner aggrieved by the order on I.A Nos.11 and 12 dated 10.10.2017 passed in O.S.No.140/2011 by the V Additional, Principal Judge, Family Court, Bengaluru, has filed this writ petition.
2. Brief facts leading to filing of this writ petition are as under:
Respondent No.1 filed a suit in O.S.No.140/2011 for relief of declaration. The petitioner filed the written statement denying the averments made in the plaint. The Family Court on the basis of the pleadings of the parties framed the issues and thereafter the respondent no.1 was examined as PW.1 and an opportunity was provided to the petitioner to cross examine Pw.1. The petitioner has sought time to cross examine PW.1. In spite of granting sufficient opportunity the petitioner, he did not cross examine PW.1. Hence, the trial Court has taken the cross examination of PW.1 as 'Nil'. The petitioner has filed an application I.A No.11 to reopen the case and I.A No.12 to recall PW.1 for cross examination. When the I.As were taken up for
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consideration, the learned counsel for the petitioner submitted that he is not ready to cross examine PW.1 today itself, though PW.1 was present in the Court. The Court has noted that the case is of the year 2011. In spite of granting an ample opportunity to the petitioner, the petitioner failed to cross examine PW.1. Hence, the trial Court rejected the applications filed by the petitioner. Hence, this writ petition.
3. Learned counsel for the petitioner submitted that the trial Court has not provided an opportunity to the petitioner to cross examine PW.1. He further submitted that trial Court has not assigned any reasons for rejecting the said applications. He further submitted that, if reasonable opportunity is granted to the petitioner to cross examine PW.1, the petitioner will complete the cross examination on the same day. Hence, he prays to allow the writ petition.
4. Per contra, learned counsel for the respondent No.1 submits that in spite of granting an ample opportunity, the petitioner did not cross examine PW.1. He further submitted that the intention of the petitioner is to drag on the proceedings. He further submitted that the petitioner has filed
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applications only with an intention to delay the proceedings. He submitted that the trial Court has justified in passing the impugned order. Hence, on these grounds, he submitted that there is no error committed by the trial Court in passing the impugned order. Hence, prayed to dismiss the writ petition.
5. Heard and perused the record and considered the submissions made by the learned counsel for the parties.
6. It is not in dispute that the respondent No.1 has filed a suit for declaration against the petitioner in the year 2011. The trial Court framed the issues long back, when the case was posted for cross examination of PW.1. Learned counsel for the petitioner sought time to cross examine on several occasions. In spite of granting sufficient opportunity, the petitioner did not cross examine PW.1. The Courts are required to give ample opportunity to parties to put forth their case. It is fundamental principle of justice that no one should be condemned, unheard to meet the requirement of the principles of natural justice as it requires that petitioner may be given an opportunity to cross examine PW.1. No injustice would cause to the respondent. On the other hand, the respondent can be compensated in terms of
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cost. Further, from the perusal of the impugned order, the trial Court has not assigned any reasons for rejecting the applications filed by the petitioner. Hence, in view of the above discussions, impugned order is liable to the set aside.
7. Accordingly, I proceed to pass the following:
ORDER
(i) Writ petition is allowed.
(ii) Impugned order dated 10.10.2017 is set aside.
(iii) Consequently, I.A Nos.11 and 12 are allowed subject to payment of cost of Rs.10,000/- payable by the petitioner to the respondent No.1 on the next date of hearing before the trial Court.
Further, the petitioner is directed to conclude cross examination of PW.1 within one week from the date of appearance of PW.1 before the trial Court, failing which, the petitioner will not be entitled for the benefit of this order.
Sd/-
JUDGE
SKS
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