Siddarangaiah vs Gangarangaiah & Others

R. Nataraj, J

The plaintiff in O.S.No.162/2002 on the file of I Additional Senior Civil Judge, Tumakuru has filed this writ petition challenging an order dated 25.06.2024, by which, I.A.Nos.XXXII and XXXIII filed by him under Section 151 of Civil Procedure Code to recall the stage of the suit and Order XVIII Rule 17 of Civil Procedure Code to recall DW.1 for further cross-examination were rejected.

The suit in O.S.No.162/2009 was filed for partition and separate possession of plaintiff's share in the suit schedule property. The suit after contest was dismissed on 04.04.2016. Being aggrieved by the said judgment and decree, the plaintiff filed R.A.No.112/2016.

The Appellate Court remitted back the case to the Trial Court to render its finding on an issue framed by it. This order of remand was passed in the year 2020. The defendant No.2 was examined as DW.1 on 08.08.2022. Several opportunities were granted to the plaintiff to cross-examine DW.1. However, the plaintiff did not avail those opportunities. Hence, the Court took the evidence of DW.1 as 'nil' and posted the case for arguments.

An application was filed by the plaintiff on 02.01.2022 to recall DW.1, which was allowed on payment of cost of Rs.1,000/- and DW.1 was recalled for further cross-examination. DW.1 was cross-examined in-part on 12.01.2023. Despite granting time for further cross-examination of DW.1, the plaintiff did not cross-examine the witness. Therefore, the Trial Court posted the case for further cross-examination on 09.03.2024. Even then, till 16.04.2024, the plaintiff did not avail the opportunities. Therefore, the Trial Court was forced to treat the further cross-examination of DW.1 as nil and set down the case for arguments. At that stage, the plaintiff again filed aforesaid two applications to recall the stage of the suit and to recall DW.1 for cross-examination. The Trial Court dismissed both the applications by imposing cost of Rs.2,000/-.

Being aggrieved by the same, the plaintiff is before this Court in this writ petition.

Learned counsel for the plaintiff contended that the issue framed by the Trial Court pursuant to the order passed by the Appellate Court was, whether the defendant Nos.1 and 2 prove that the suit properties were divided more than 70 years ago between father of the defendants namely Thimmarayappa and father of the plaintiff namely Rangaiah. He contends that this is a crucial issue and the finding on this issue will ultimately decide the fate of the plaintiff in regular appeal. He therefore, contends that a last opportunity be granted to conclude the cross-examination of DW.1. He submits that though several opportunities were granted by the Trial Court, due to reasons beyond his control, the plaintiff could not avail those opportunities.

Learned counsel for the respondent Nos.1 and 2 however opposed the submissions of the learned counsel for the plaintiff and contended that the order sheet bears testimony to the fact that substantial opportunities were given to the plaintiff to further cross-examine DW.1 and the plaintiff did not take advantage of those opportunities. He therefore, contends that allowing any further indulgence, would unnecessarily delay the proceedings in the suit.

I have considered the submissions of the learned counsel for the plaintiff and the learned counsel for the defendants.

A perusal of the impugned order passed by the Trial Court shows that the plaintiff despite sufficient opportunities given to further cross-examine DW.1, did not take advantage of those opportunities. He did not conclude further cross-examination of DW.1. Therefore, the Trial Court felt that the plaintiff was not diligent and hence dismissed the applications with cost of Rs.2,000/-. The rejection of the applications of the plaintiff though is justified but yet having regard to the fact that the First Appellate Court had directed the Trial Court to record its finding on the additional issue and having regard to the fact that the finding on the issue framed by the Trial Court would ultimately decide the fate of the plaintiff in regular appeal, it is appropriate to grant an opportunity to the plaintiff to cross-examine DW.1, however, subject to payment of exemplary cost.

In that view of the matter, the writ petition is allowed. The impugned order dated 25.06.2024 passed by the Trial Court is set aside and the applications - I.A.Nos.XXXII and XXXIII filed under Section 151 and Order XVIII Rule 17 of Civil Procedure Code respectively are hereby allowed subject to payment of cost of Rs.10,000/- payable by the plaintiff to the defendant Nos.1 and 2 before the Trial Court on the next date of hearing.

It is made clear that if the plaintiff does not cross-examine DW.1 on the next or adjourned date of hearing, and or does not pay the cost on the next or adjourned date, the Trial Court shall proceed to answer the issue in accordance with law and place it before the Appellate Court in accordance with law.