- 1 - HC-KAR NC: 2025:KHC:25037 W.P. No.3253/2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.3253/2020 (GM-CPC) BETWEEN: RADHAKRISHNA .V S/O LATE SRI. G.R. VENKATARAMAIAH AGED ABOUT 72 YEARS R/AT NO.15/16 17TH MAIN, 11TH CROSS JP NAGAR I PHASE BENGALURU - 560 078. …PETITIONER (BY SRI. PRADEEP NAIK K, ADV.,) AND: 1. VIJAYA .V S/O LATE SRI. G.R. VENKATARAMAIAH AGED ABOUT 68 YEARS R/AT NO.17, PARAMAHAMSA ROAD THYGARAJANAGARA 2ND BLOCK BASAVANAGUDI BENGALURU - 560 004. 2. SMT. VIMALA S/O LATE SRI. G.R. VENKATARAMAIAH AGED ABOUT 78 YEARS W/O SRI. S. NAGARAJA R/AT NO.7, 7TH CROSS TEACHERS COLONY BENGALURU - 560 078. …RESPONDENTS (BY SRI. PRANAV T.M. ADV., FOR SRI. B.R. VISWANATH, ADV., FOR R1 R2 SERVED AND UNREPRESENTED) Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:25037 W.P. No.3253/2020 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER WHICH IS AT ANNX-A TO THIS W.P. i.e. THE ORDER PASSED ON I.A.NO.12 ORDER DATED 07.01.2020 FILED BY THE PETITIONER U/S 151 OF CPC TO RECALL DW-1 FOR THE PURPOSE OF FURTHER CROSS EXAMINATION BY ALLOWING THE SAID APPLICATION NO.12 IN O.S.NO.2524/2012 PENDING BEFORE THE HON'BLE XXX ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-39) BY ALLOWING THIS W.P. & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking for the following relief: "Issue writ in the nature of certiorari to quash the impugned order which is at Annexure-A to this writ petition i.e., the order passed on I.A.No.12, Order dated 07.01.2020 filed by the petitioner under section 151 of CPC to recall DW-1 for the purpose of further cross examination by allowing the said application No.12 in O.S.No.2524/2012 pending before the Hon'ble XXX Additional City Civil & Sessions Judge at Bengaluru (CCH-39) by allowing this writ petition." 2. Heard. 3. Sri.Pradeep Naik K., learned counsel appearing for the petitioner submits that the petitioner filed a suit for - 3 - HC-KAR NC: 2025:KHC:25037 W.P. No.3253/2020 partition and separate possession. The defendants entered appearance, contested the suit and adduced the evidence. The defendant No.1 has been examined as DW-1 and the matter was posted for her cross-examination. However, due to some personal difficulty, the petitioner could not cross-examine DW-1 and the Trial Court closed the cross-examination. Thereafter, an application was filed by the petitioner to re-call DW1 and also permission to cross-examine the said witness. However, on 07.01.2020, the Trial Court recorded that sufficient opportunity was given to the petitioner on cost also but the cross-examination was not carried out. The Trial Court further insisted to cross-examine DW-1 on the same day, to which the learned counsel for the plaintiff had expressed some difficulty. Hence, the Trial Court closed the cross-examination of DW-1 and posted the matter for arguments. It is submitted that the suit is pending from 2012 and this Court had granted an interim order on 13.02.2020 staying the further proceedings in the suit. It is further submitted that there is some lapse on the part of the learned counsel for the plaintiff as he could not cross-examine DW-1 on the given date as he was busy in appearing in the part-heard matter. Hence, he seeks to allow - 4 - HC-KAR NC: 2025:KHC:25037 W.P. No.3253/2020 the application by providing an opportunity and he assures that on the given date, he would cross-examine DW-1. Therefore, he seeks to allow the petition. 4. Per contra, Sri. Pranav T.M. for Sri.B.R. Vishwanath, learned counsel appearing for the respondent No.1 supports the impugned order of the Trial Court and submits that the Trial Court has given sufficient opportunity to the petitioner to cross- examine DW-1. Despite consent given from the counsel appearing for DW-1, the cross-examination has not been conducted by the petitioner. Considering the same, the Trial Court has proceeded to reject the application and posted the matter for arguments. He submits that showing any undue indulgence to the petitioner would lead to further delay in disposing the suit. Hence, he seeks to dismiss the petition. 5. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent No.1 and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides. - 5 - HC-KAR NC: 2025:KHC:25037 W.P. No.3253/2020 6. The petitioner filed O.S.No.2524/12 for partition and separate possession with regard to the suit schedule property. The defendants filed a written statement denying the entitlement of the partition. The issues were framed, the parties adduced the evidence, the defendant-respondent No.1 was examined as DW-1 and the matter was posted for cross- examination of DW-1. On the said date, the Trial Court provided an opportunity to the learned counsel for the plaintiff to cross-examine DW-1. However, he sought time. Later, the Trial Court closed the cross-examination of DW-1. Thereafter, an application in I.A.Nos.12 and 13 came to be filed by the petitioner seeking to re-open the defendant evidence to re-call DW-1 and to cross-examine DW-1, which came to be rejected by the Trial Court by recording a reasoned order. In my considered view, the petitioner has failed to cross-examine DW- 1 on many occasions despite providing sufficient opportunities. However, the explanation offered by the petitioner in the petition is that on the given date, the counsel for the plaintiff was not available as he was arguing the case posted in some other Court. The said explanation is required to be accepted as it appears to be bona fide. However, the same should be - 6 - HC-KAR NC: 2025:KHC:25037 W.P. No.3253/2020 accepted on terms. Hence, the application deserves to be allowed by providing an opportunity to the petitioner to cross- examine DW-1 on certain terms subject to the condition that the petitioner shall pay cost to DW-1 and shall cross examine DW-1 on the given date. Hence, I proceed to pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 07.01.2020 passed on I.A.Nos.12 and 13 is set aside. Consequently, I.A.Nos.12 and 13 are allowed subject to the petitioner paying a cost of Rs.3,000/- to DW-1. (iii) DW-1 shall remain present before the Court on 29.07.2025. On the said date, the petitioner shall cross-examine DW-1 and no further opportunity will be provided. No orders as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 34