- 1 - NC: 2025:KHC:9746 WP No. 35192 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 35192 OF 2018 (GM-CPC) BETWEEN: SRI NABHI POOJARY S/O KANTHAPPA POOJARY RESIDING AT SRI DURGA NIVASA UDRAJALU HOUSE, VALPADY VILLAGE-574236 MANGALORE TALUK. …PETITIONER (BY SRI. CHANDRANATH ARIGA K., ADVOCATE) AND: 1. SRI ANANDA KOTIAN S/O BABU POOJARY AGED ABOUT 61 YEARS, KIDOTTU HOUSE, HOSANGADY VILLAGE, POST PERINJE-574227 BELTHANGADY TALUK. 2. SRI BABU POOJARY S/O KANTHAPPA POOJARY AGED ABOUT 86 YEARS, KIRIMBI HOUSE, POST NELLIKAR VILLAGE 574107 MANGALORE TALUK. …RESPONDENTS (BY SRI. RAMACHANDRA, ADV. FOR R1, R2 - SERVED AND UNREPRESENTED.) Digitally signed by LAKSHMINARAYAN N Location: High Court of Karnataka - 2 - NC: 2025:KHC:9746 WP No. 35192 of 2018 THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 21.07.2018 ON IA NO.12 AND 13 IN O.S.NO.107/2009 ON THE FILE OF THE CIVIL JDUGE AND JMFC, MOODBIDRI (ANNEXURE-Q) AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Petitioner who is defendant No.2 in O.S.No.107/2009 pending on the file of Civil Judge and JMFC, Moodabidri, D.K. ('Trial Court' for short) is before this Court, being aggrieved by the order dated 30.07.2018 passed by the Trial Court on applications in IA Nos. 12 and 13 filed by defendant No.1 who is respondent No.1 herein under Order XVI Rule 1 and 2 and Section 151 of Code of Civil Procedure, seeking to reopen the case and permission to examine two witnesses. 2. Learned counsel for the petitioner taking this Court to the record submits that the above suit has been - 3 - NC: 2025:KHC:9746 WP No. 35192 of 2018 filed by the plaintiff who is respondent No.2 herein for declaration that the deed of settlement dated 01.01.2004 executed by him in favour of his son who is defendant No.1 as null and void and consequent declaration to declare that the deed of sale executed by defendant No.1 herein in favour of defendant No.2 as null and void and not binding. Admittedly, the trial is completed and the matter was set down for 'arguments'. At this juncture, defendant No.1 herein filed the above applications seeking the relief as noted above. The Trial Court has allowed the said applications and reopened the case and permitted the defendant No.1 herein to examine two witnesses named therein. 3. Learned counsel for the petitioner/defendant No.2 submits that in the written statement, defendant No.1 has not whispered anything contrary or detriment to the interest of defendant No.2. In fact, he has acknowledged, confirmed and admitted the execution of deed of sale in favour of defendant No.2 herein and has - 4 - NC: 2025:KHC:9746 WP No. 35192 of 2018 even sought for dismissal of the suit. That being the situation, examining the witness for the purported reasons of producing certain documents contrary to the interest of defendant No.2 at this juncture, is impermissible. Hence, seeks for setting aside of the order. 4. Learned counsel for defendant No.1 on the other hand, pointing out to the averment made in the affidavit filed by defendant No.2 in lieu of his evidence wherein it is stated that "the 1st defendant suppressed the pendency of this suit and also the suit in O.S.No.67/2006 on the file of this Court at the time of registration of the sale deed dated 26.11.2011", submits that since there is a specific allegation made against defendant No.1 the applications were necessitated to rebut and disprove the said allegations. He submits that the agreement entered into between defendant No.1 and defendant No.2 prior to execution of deed of sale in which there is clear reference to suit in O.S.No.67/2006. That the said agreement was drafted by one of the witnesses and notice pursuant to the - 5 - NC: 2025:KHC:9746 WP No. 35192 of 2018 same had also been issued to another witness. Therefore, to prove the said aspect of the matter, it was necessary to reopen the case and recall the said witnesses. 5. On a query by this Court, it is stated that defendant No.1 has not entered the witness box. However, he would like to examine said two witnesses. 6. In the light of the aforesaid peculiar aspect of the matter more particularly when defendant No.1, has not disputed the execution of deed of sale by him is found of the defendant No.2, on the other hand, sought for dismissal of the suit, is seeking to produce his witnesses. Secondly, defendant No.1 himself has not led any evidence. Therefore, the question of he bringing witnesses in support of his contention which is not put forth before this Court is not tenable. It is open for defendant No.1 to confront such documents, if he is so advised and thereafter lead his evidence. Without complying with this principal requirement, permitting - 6 - NC: 2025:KHC:9746 WP No. 35192 of 2018 defendant No.1, to produce witnesses on an aspect which is not placed before the Court merely because the reference is made in the affidavit cannot be permitted. Therefore, the order passed by the Trial Court without taking this aspect of the matter cannot be sustained. Accordingly, the writ petition is allowed and the order dated 30.07.2018 passed by the Trial Court on applications in IA Nos. 12 and 13 filed by defendant No.1 is set aside. 7. Further, it is made clear that notwithstanding allowing of the writ petition and setting aside the order, it is open for the defendant No.1, to lead evidence on his own if so advised, with respect to the point made hereinabove. Sd/- (M.G.S. KAMAL) JUDGE SSD List No.: 1 Sl No.: 6