Smt. Kempamma and Ors @APPELLANT@Hash Smt. Chikkamuniyamma

Having heard learned counsel for the parties and having perused the material placed on record, this Court is unable to find any reason to consider

interference in the just and proper order dated 12.04.2018 as passed by the Trial Court in this case.

It appears from the perusal of record that the suit for declaration and perpetual injunction in relation to the suit schedule properties (O.S. No.

358/2004), as filed by the plaintiffs/petitioners is pending since the year 2004. On 12.04.2018, at the stage when the matter was fixed for final

arguments, the substituted counsel filed no-objection power for the plaintiffs/petitioners with the applications (I.A. Nos. 19 and 20) seeking recall of

the defendants’ witness â€"D.W.1 for cross-examination. It was stated in the applications that the previous counsel for the plaintiffs could not

appear before the Court on 09.04.2018 and hence, the Court closed the evidence of D.W.1 and posted the matter for arguments; and then, the

previous counsel gave no objection vakalath on 11.04.2018. It was further stated in the applications that the cross examination of D.W.1 was

necessary in the interest of justice and else, it would cause severe hardship and injury to the plaintiffs/petitioners.

It appears that upon taking up such applications, the Trial Court was poised to allow the same for immediate further proceedings but then, learned

counsel for the plaintiffs was not ready to cross-examine the defendant’s witness. Taking note of this fact as also the age of the suit, the Trial

Court rejected the applications and posted the matter for arguments of the defendants, after taking the arguments of the plaintiffs as nil. The impugned

order dated 12.04.2018 reads as follows:

“Sri.HVD files No Obj. Power for P1 to 7 A/W I.A.19 & 20 u/s.151 CPC u/o.18 R17 CPC.

Though this Court is ready to allow the applications, the counsel is not ready to cross examine the witness. Having regard to age of suit, IAs rejected.

P/Arg. taken as nil.

F. D/Arg by 17/4â€​

These petitions against the order so passed by the Trial Court were considered at the initial stage on 20.04.2018 when a co-ordinate Bench of this

Court, while taking note of the submissions on behalf of the petitioners and while issuing notices, stayed further proceedings in the Trial Court by the

following order:-

“Heard the learned counsel for the petitioners.

It is submitted by the learned counsel for the petitioners that the counsel was engaged in other court and before he could complete the work there and

come to the instant court, the trial court was pleased to reject I.A.Nos.19 and 20.

There shall be interim stay of further proceedings.

Interim order to operate till the next date of hearing.

List on 05.06.2018.

Issue notice.â€​

It appears that the impression gathered by the co-ordinate Bench of this Court at the initial stage had been that the counsel for the plaintiffs/petitioners

was engaged in other Court; and when he went to the Trial Court, I.A. Nos.19 and 20 were rejected. The factual aspect had been a bit different

inasmuch as the evidence of the defendant was closed on 09.04.2018 after taking cross-examination as nil whereas the applications (I.A.Nos.19 and

20) were moved only after closure of the evidence and on the next date. Nevertheless, the prayer, as made therein, was practically to be granted, if

the counsel for the plaintiffs had shown readiness to cross examine the witness. For the learned counsel for the plaintiffs/petitioners having not shown

the requisite readiness, the Trial Court found no other option but to reject the applications.

Learned counsel for the petitioners has made a fervent plea for allowing the petitioners to cross-examine D.W.1. Ordinarily, this Court would have

considered granting such an indulgence if a reasonable case were made out but, on the facts and in the circumstance of this case, granting of such

indulgence, in the opinion of this Court, could only be at the cost of very basics of the judicial procedure.

It is seen that the suit in question is pending since the year 2004. On the date of hearing preceding the date of order impugned, the defendants’

evidence was closed after finding that D.W.1 was present, but the plaintiffs’ counsel was not present; and the cross-examination of the witness

was taken as nil.

Then, on 12.04.2018, when the substituted counsel appeared for the plaintiffs/petitioners and filed applications seeking re-opening of evidence and for

cross-examination of the witness, the Trial Court took a reasonable view of the matter and justifiably expressed its readiness to allow the applications

immediately. However, as noticed, learned counsel for the petitioners was not ready to cross-examine the witness! This Court is constrained to

observe that even when the rules of procedure are applied in the manner that every party to the litigation is extended a fair opportunity to contest and

to bring forth its case before the Court yet, none of the parties to the litigation could be acceded a right to take the rules of procedure for granted or to

protract the trial of the suit while not co-operating with the Court in progression and final disposal of the matter.

In this matter, in the first place, there was hardly any reasonable cause that the witness D.W.1 was not cross- examined on 09.04.2018. Moreover,

when the matter was posted for arguments on 12.04.2018 and the applications were moved for recall of the witness and for permission to cross-

examine, the plaintiffs/petitioners or their learned counsel could not have assumed that the applications were required to be granted and after granting

such applications the matter was nevertheless to be adjourned. If at all the plaintiffs/petitioners were desirous of cross-examining the witness, there

was no reason that upon the Court expressing its readiness to allow the applications, the learned counsel for the plaintiffs/petitioners did not avail of

the opportunity.

In the given set of circumstances, this Court is unable to find any case of jurisdictional error so as to call for interference in the writ jurisdiction of this

Court.

The writ petitions stand dismissed.

However, in the circumstances of the case, it is left open for the petitioners to question the order impugned in appeal, if any, filed against the decree to

be passed in the suit in question, with corresponding liberty to the respondents to contest such grounds in accordance with law.

Subject to the observations foregoing, the writ petitions stand dismissed.