Jayamma vs Renuka and Others

B. Manohar, J.—Petitioner is the first defendant in O.S. No. 50/2005 on the file of the Additional Senior Civil Judge, Ramanagara. Being aggrieved by the order dated 21-11-2012 rejecting I.A. Nos. 11 and 12 filed under Order 18 Rule 17 of CPC and under Section 151 of CPC for recalling P.W. 1 and P.W. 2 and to reopen the case for cross-examination of P.W. 1 and P.W. 2., she has filed this writ petition.

Lakshmamma and Renuka had filed a suit seeking for partition and separate possession of 1/4th share in respect of the suit schedule properties by metes and bounds and for other reliefs. The contesting defendants filed written statement. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. On the basis of the said issues, the case was posted for trial. During the pendency of the suit, Lakshmamma died. Smt. Renuka got examined as P.W. 1 on 24-09-2010. Thereafter the case was posted for cross-examination of P.W. 1 on 1-10-2010. On 21-10-2010, though the case was posted for cross-examination of P.W. 1, there was no representation on the part of the defendants. Hence, the evidence of P.W. 1 was taken as NIL. The first defendant filed an application on 1-12-2010 under Order 18 Rule 17 of CPC to recall P.W. 1, and permit her to cross-examine P.W. 1. On 29-01-2011, the case of P.W. 1 was reopened and the first defendant was permitted to cross-examine her. The first defendant partly cross-examined P.W. 1 on 16-06-2011 and 8-12-2011. In spite of giving sufficient opportunities, the defendants have not cross-examined P.W. 1. In view of that, the evidence of P.W. 1 was closed on 25-05-2012. Further the defendants have also failed to cross-examine P.W. 2. Hence, the evidence of P.W. 2 was closed on 29-05-2012. The case was posted for defendants'' evidence. At that stage, the present applications I.A. No. 11 and 12 were filed for recalling P.W. 1 and P.W. 2 and also to permit the defendants to cross-examine the plaintiffs.

The plaintiffs filed objections to the said applications and contended that the case was posted on 1-10-2010 for cross-examination of P.W. 1, the first defendant has failed to cross-examine P.W. 1. Even after recalling the said order on 29-01-2011, the defendants have failed to cross-examine P.W. 1 and P.W. 2. Hence, sought for dismissal of the said applications. The Trial Court after considering the matter in detail and taking into consideration various dates mentioned above, found that though sufficient opportunity has been given to the defendants to cross-examine P.W. 1 and P.W. 2, they have failed to cross-examine the plaintiffs. Hence, no ground is made out to reopen the case of P.W. 1 and P.W. 2 once again and for recalling their evidence. Accordingly, rejected the said applications, by its order impugned in this writ petition. Being aggrieved by the said order, the first defendant filed the present writ petition.

Sri. A.R. Anantha Murthy, learned counsel appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. The Trial Court ought to have given one more opportunity to the first defendant to cross-examine P.W. 1 and P.W. 2. Due to unavoidable circumstances, the advocate could not be present before the court. Hence sought for allowing the writ petition by setting aside the order passed by the Trial Court.

On the other hand, Sri. R. Krishna Murthy, learned counsel appearing for the respondent No. 1 (A-C) argued in support of the order passed by the Trial Court and contended that inspite of granting two years time to cross-examine P.W. 1 and P.W. 2., the petitioner herein has not availed the said opportunity. The suit is for partition and separate possession. Hence, the petitioner is not entitled for any relief and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and other relevant records.

The records clearly disclose that the suit has been filed for partition and separate possession. The case was posted for cross-examination of P.W. 1 on 1-10-2010. In spite of giving sufficient opportunities, the defendants have failed to cross-examine P.W. 1. In view of that, the evidence of P.W. 1 was closed. On an application filed under Order XVIII Rule 17 of CPC, the cross-examination of P.W. 1 was reopened on 29-01-2011 and thereafter P.W. 1 was cross-examined in part on 16-06-2011 and 8-12-2011. Thereafter, the defendants failed to cross-examine P.W. 1. Hence, the cross-examination of P.W. 1 was taken as NIL. P.W. 2 was also not cross-examined and the evidence of P.W. 2 was closed on 26-09-2012. Long thereafter, applications are filed for reopening the case and permission to cross-examine P.W. 1 and P.W. 2. The Trial Court, taking into consideration all these aspects of the matter held that though sufficient opportunity has been given to the defendants to cross-examine P.W. 1 and P.W. 2 after reopening the case, the defendants have failed to cross-examine the plaintiffs. Hence, rejected the applications. I find no infirmity or irregularity in the order passed by the Trial Court.

The Hon''ble Supreme Court in a judgment reported in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, has clearly laid down a law that "the power under the provisions of Order 18 Rule 17 of CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and reexamination would not cause any prejudice to the parties. If Order 18 Rule 17 is exercised in routine manner, it will defeat the very purpose of amendment of CPC." In view of the authoritative pronouncement of the Hon''ble Supreme Court, the petitioner is not entitled for any relief in the writ petitions. The order sheet of the Trial Court clearly discloses that the petitioner is not vigilant in prosecuting the case. Apart from that, the petitioner is not diligent in cross-examining P.W. 1 and P.W. 2. It was brought to the notice of the court that P.W. 1 is suffering from cancer. The petitioner is also aware of the said fact, despite that she failed to cross-examine P.W. 1. During the pendency of this writ petition, she died and her legal representatives have been brought on record. Hence, the petitioner is not entitled for any relief. Accordingly, the writ petitions are dismissed.

Since the suit is of the year 2005, the Trial Court is directed to dispose of the matter within a period of six months from the date of receipt of a copy of this order.