Writ Petition No. 22251 of 2024 · Karnataka High Court · 2024

2. SRI AJMAL S/O ABDUL REHMAN, AGED ABOUT 63 YEARS, RESIDENT OF KADARIPURA VILLAGE, BUDIKOTE HOBLI, BANGARPET TALUK, KOLAR DISTRICT-563 114.

3. SRI SIRAJ S/O ABDUL REHMAN, AGED ABOUT 62 YEARS, RESIDENT OF KADARIPURA VILLAGE, BUDIKOTE HOBLI, BANGARPET TALUK, KOLAR DISTRICT-563 114.

4. SMT. MAHABOOB BI W/O JALALUDDIL AGED ABOUT 63 YEARS, RESIDENT OF KADARIPURA VILLAGE, BUDIKOTE HOBLI, BANGARPET TALUK, KOLAR DISTRICT-563 114. THEJESWINI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:33309 WP No. 22251 of 2024

5. SRI AHMED S/O ABDUL REHMAN, AGED ABOUT 63 YEARS, RESIDENT OF KADARIPURA VILLAGE, BUDIKOTE HOBLI, BANGARPET TALUK, KOLAR DISTRICT-563 114.

6. SMT. SHAHATAJ BI W/O GAFFOR AGED ABOUT 63 YEARS, RESIDENT OF KADARIPURA VILLAGE, BUDIKOTE HOBLI, BANGARPET TALUK, KOLAR DISTRICT-563 114. (BY SRI. K K VASANTH., ADVOCATE) AND:

4. THE TAHSILDAR, BANGARPET TALUK, BANGARPET, KOLAR DISTRICT-563 114. THE ASSISTANT COMMISSIONER, KOLAR SUB DIVISION, KOLAR, KOLAR DISTRICT-563 101. THE DEPUTY COMMISSIONER KOLAR, KOLAR DISTRICT-563 101. THE CHIEF SECRETARY VIDHANA SOUDHA, BENGALURU-560001. (BY SMT. H.R.AMARAVATHI, AGA) …PETITIONERS …RESPONDENTS - 3 - NC: 2024:KHC:33309 WP No. 22251 of 2024 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO. 72/2016 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND JMFC AT KGF (ITINERATE TO BANGARPET) AND QUASH/ SET ASIDE THE ORDER DTD. 30.07.2024 PASSED ON THE APPLICATIONS FILED BY THE PETITIONERS UNDER SECTION 151 OF CPC AND ALSO UNDER ORDER 18 RULE 17 R/W SECTION 151 OF CPC IN O.S.NO. 72/2016 BY THE ADDL. SENIOR CIVIL JUDGE AND JMFC AT KGF (ITINERATE TO BANGARPET) VIDE ANNX-F AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL ORDER Learned Additional Government Advocate notice for all the respondents. Learned counsel for the petitioners is directed to serve the copy of the writ petition along with annexures on the learned Additional Government Advocate. - 4 - NC: 2024:KHC:33309 WP No. 22251 of 2024

2. Learned counsel for the petitioners submits that the plaintiffs filed the suit in the year 2016 seeking declaration of title over the suit schedule properties and for Permanent Injunction restraining the defendants from interfering with the peaceful possession of the suit schedule property. The plaint was rejected on an application filed by the defendants under Order VII Rule 11 of CPC on 18.11.2017. However, the petitioners challenged the said order in R.A.No.128/2018 and the appeal was allowed on 30.03.2019 while restoring the matter. Thereafter, written statements were filed by the defendants / respondents herein and issues were framed and the examination and cross-examination of the plaintiffs witness were concluded. Learned counsel draws the attention of this Court to the Order Sheet maintained by the trial Court and submits that on an application filed on behalf of defendant No.1 under Order 18 Rule 17 of CPC and an application under Section 151 of CPC, both the applications were allowed by imposing costs on defendant No.1 and the defendants were permitted to - 5 - NC: 2024:KHC:33309 WP No. 22251 of 2024 mark Exs.D.1 to D.10 and the matter was listed for cross- examination of DW.1. On three occasions thereafter, DW.1 was not present. On 18.06.2024, DW.1 was present but the learned counsel for the plaintiffs sought for some time and accordingly the matter was adjourned. Learned counsel submits that the plaintiffs were unhappy with the learned counsel on record and therefore, they sought for NOC at the hands of the learned counsel and accordingly, the previous counsel gave NOC and another counsel filed Power along with the NOC on 30.07.2024. By that time, the matter was posted for arguments. On the date when the Vakalath was filed by the new counsel, he also filed an application to recall the earlier orders to enable cross- examination of DW.1. The impugned order has been passed by the trial court rejecting the request made on behalf of the plaintiffs to reopen the case for cross- examination of DW.1. Learned counsel submits that having regard to the predicament of the plaintiffs and the fact that only two hearings went by when there was some difference of opinion between the plaintiffs and the learned - 6 - NC: 2024:KHC:33309 WP No. 22251 of 2024 counsels which was the cause for the matter being listed for arguments, the application should have been allowed.

3. Having heard the learned counsel for the petitioners and on perusing the petition papers, this Court is of the considered opinion that the trial Court should have allowed the application by imposing costs to enable the cross-examination of DW.1. As noticeable, the cross- examination of DW.1 could not be made by the learned counsel since there was difference of opinion between the parties and the learned counsels. The trial Court was required to take these aspects into consideration.

4. Accordingly, the writ petition is allowed. The impugned order dated 30.07.2024 passed by the Addl. Senior Civil Judge and JMFC., K.G.F., in O.S.No.72/2016 is hereby quashed and set aside. The application filed on behalf of the plaintiffs on 30.07.2024 under Section 151 of CPC and order 18 Rule 17 of CPC is hereby allowed while imposing costs of Rs.1000/- (Rupees One thousand only) - 7 - NC: 2024:KHC:33309 WP No. 22251 of 2024 on the plaintiffs payable to the defendants at the time of the cross-examination of DW.1.

5. The plaintiffs are directed to cross-examine DW.1 on the next date of hearing and shall not take unnecessary adjournments. The matter shall be listed for cross-examination of DW.1 on 29.08.2024. Ordered accordingly. Sd/- (R DEVDAS) JUDGE PSJ List No.: 1 Sl No.: 19