MR. T.B. MOHIDEEN v. MR. T.B. ALI

MR. T.B. MOHIDEEN, S/O LATE BAPUTTI, AGED ABOUT 46 YEARS, RESIDING AT: IGGODLU VILLAGE, SUNTICOPPA NAD, SOMWARPET TALUK, KODAGU DISTRICT - 571 237. (BY SRI. KUMAR N.J, ADVOCATE) AND:

MR. T.B. ALI, S/O LATE BAPUTTI, AGED ABOUT 46 YEARS, RESIDING AT: IGGODLU VILLAGE, SUNTICOPPA NAD, SOMWARPET TALUK, KODAGU DISTRICT - 571 237.

MRS. KHADIJA, D/O LATE BAPUTTI, AGED ABOUT 60 YEARS, RESIDING AT: IGGODLU VILLAGE, SUNTICOPPA NAD, SOMWARPET TALUK, KODAGU DISTRICT - 571 237.

MRS. NABEESA, D/O LATE BAPUTTI, AGED ABOUT 53 YEARS, RESIDING AT: IGGODLU VILLAGE, SUNTICOPPA NAD, SOMWARPET TALUK, KODAGU DISTRICT - 571 237. Digitally signed by H K HEMA Location: High Court of Karnataka - 2 - NC: 2024:KHC:28398 WP No. 1434 of 2024

MR. T.B. SYED, S/O LATE BAPUTTI, AGED ABOUT 48 YEARS, RESIDING AT: IGGODLU VILLAGE, SUNTICOPPA NAD, SOMWARPET TALUK, KODAGU DISTRICT - 571 237.

MRS. ASMA, W/O LATE HYDER, AGED ABOUT 46 YEARS, RESIDING AT: IGGODLU VILLAGE, SUNTICOPPA NAD, SOMWARPET TALUK, KODAGU DISTRICT - 571 237.

MR. HABEEB, S/O LATE HYDER, AGED ABOUT 26 YEARS, RESIDING AT: IGGODLU VILLAGE, SUNTICOPPA NAD, SOMWARPET TALUK, KODAGU DISTRICT - 571 237.

MS. FATHIMA, D/O LATE HYDER AGED ABOUT 22 YEARS RESIDING AT: IGGODLU VILLAGE, SUNTICOPPA NAD, SOMWARPET TALUK, KODAGU DISTRICT - 571 237. …RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE TRIAL COURT, DATED 10.10.2023 AT ANNEXURE-A, IN O.S.NO.20/2022 PENDING BEFORE THE SENIOR CIVIL JUDGE AND JMFC, SOMWARPET, KODAGU AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING THROUGH VIDEO CONFERENCING / PHYSICAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR JUSTICE M.I.ARUN - 3 - NC: 2024:KHC:28398 WP No. 1434 of 2024 ORAL ORDER (PER: THE HON'BLE MR JUSTICE M.I.ARUN)

1. Aggrieved by the order passed on I.A.Nos.2 and 3 filed to reopen the case and to recall PW1 for cross- examination, in O.S.No.20/2022 dated 10.10.2023 by the Senior Civil Judge and JMFC, Somwarpete, defendant No.1 therein has preferred this writ petition.

2. The petitioner is defendant No.1 and respondent Nos.1 to 4 are the plaintiffs, respondent Nos.5 to 7 are defendant Nos.2 to 4 respectively in the original suit. The suit is one for partition and separate possession. PW1 is a resident of Dubai. Because the original suit was filed and he was required to adduce evidence, he had traveled to India and stayed here for four months. Several dates were for cross-examination of PW1 and defendant No.1/petitioner herein has refused to cross-examine PW1 and has taken time. On the ground that defendant No.1 had to undergo an eye surgery and he was not in a position cross-examine PW1, he made - 4 - NC: 2024:KHC:28398 WP No. 1434 of 2024 aforementioned applications in the original suit after knowing fully well that PW1 had gone back to Dubai. The trial Court has rejected it. Aggrieved by the same, the present writ petition is filed.

3. Admittedly, PW1 had come to India to give his evidence in the original suit. Defendant No.1, who belongs to the same family of PW1, was very well aware of it. He deliberately did not cross-examine PW1 when he was in India. Upon him flying back to Dubai, defendants No.1 makes the applications to recall PW1 on the ground that he had undergone an eye surgery because of which he could not cross-examine PW1. Cross-examination has to be done by the advocate for defendant No.1. The presence of defendant No.1 is not required. It is a clear case where defendant No.1 only wants to harass PW1 and it establishes that defendant No.1 deliberately did not cross- examine PW1 when he was present in the Court.

4. For the aforementioned reason, I do not see any error in the order passed by the trial Court. - 5 - NC: 2024:KHC:28398 WP No. 1434 of 2024