- 1 - HC-KAR NC: 2025:KHC:18699 WP No. 51467 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA WRIT PETITION NO. 51467 OF 2019 (GM-CPC) BETWEEN: MUNIYAMMA D/O LATE. BAJJAPPA, AGED ABOUT 85 YEARS R/AT RAMASAGARA VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK 562106 BANGALORE RURAL DISTRICT …PETITIONER (BY SMT. RAJESHWARI S PATIL, ADVOCATE FOR SRI. KIRAN G, ADVOCATE) AND: LAGUMAIAH S/O. SRI. GIRIYAPPA, AGED ABOUT 60 YEARS R/AT RAMASAGARA VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK 562106 BANGALORE RURAL DISTRICT …RESPONDENT (BY SRI. SIDDESWARA, ADVOCATE) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DT.14.10.2019 PASSED BY THE SENIOR CIVIL JUDGE, ANEKAL REJECTING THE IAs/APPLICATIONS UNDER ORDER 18 RULE 17 R/W SECTION 151 OF CPC FOR RECALLING THE PW2 FOR CROSS EXAMINATION AND U/S 151 OF THE CODE OF CPC TO REOPEN THE CASE IN O.S.NO.695/2006 VIDE ANNEXURE-F, CONSEQUENTLY ALLOWING THE SAID APPLICATIONS AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:18699 WP No. 51467 of 2019 CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL ORDER 1. The present writ petition is filed calling in question the order dated 14.10.2019 passed in O.S. No.695/2006 by the Senior Civil Judge and JMFC., Anekal1 whereunder the application filed under order XVIII Rule 17 r/w 151 of Code of Civil Procedure, 19082 filed by the petitioner/defendant for recall of PW.2 for cross examination was rejected. 2. The relevant facts in a nutshell are that respondent/plaintiff instituted a suit in O.S. No.695/2006 (earlier numbered as O.S. No.989/2003) for partition and separate possession. The petitioner was arrayed as the defendant No.1 in the said suit and filed a Written Statement contesting the same. The Power of Attorney holder of the plaintiff was examined as PW.2. Since PW.2 was not cross examined by the petitioner/defendant, PW.2 was discharged. The petitioner/defendant filed an application under Order XVIII Rule 17 r/w Section 151 of CPC to recall PW.2 for cross 1 Hereinafter referred to as the ‘Trial Court’ 2 Hereinafter referred to as the ‘CPC’ - 3 - HC-KAR NC: 2025:KHC:18699 WP No. 51467 of 2019 examination. The Trial Court vide order dated 14.10.2019 dismissed the said application. Being aggrieved, the present writ petition is filed. 3. Learned counsel for the petitioner submits that the defendant was unwell and could not given necessary instructions to cross examine PW.2. Hence, due to bonafide reasons, the cross examination of PW.2 could not be proceeded with. She further submits that request for time to cross examine PW.2 was a bonafide one. 4. It is forthcoming that when the application was filed to recall PW.2, the Trial Court noticed that the matter was adjourned for cross examination of PW.2 on four occasions. Also PW.2 was present in Court and the counsel for the defendant again sought for time to cross examine PW.2. Hence, Trial Court rejected the said application. 5. It is clear that petitioner/defendant has been afforded an adequate opportunity to cross examine PW.2 and the said opportunity has not been availed. Having regard to the fact that the suit is one for partition and valuable rights in immovable property are required to be adjudicated by the Trial - 4 - HC-KAR NC: 2025:KHC:18699 WP No. 51467 of 2019 Court in the suit, in the interest of justice, it is just and proper, the petitioner/defendant be afforded another opportunity to cross examine PW.2 on certain terms. 6. In view of the aforementioned, the following: ORDER i) Writ petition is allowed. ii) Order dated 14.10.2019 passed in O.S. No.695/2006 by the Senior Civil Judge and JMFC., Anekal dismissing the application filed by the defendant under Order XVIII Rule 17 r/w Section 151 of CPC to recall PW.2 for cross examination is set aside. iii) Application filed by the defendant under Order XVIII Rule 17 r/w Section 151 of CPC to recall PW.2 is allowed subject to the petitioner/defendant paying cost of `10,000/- to PW.2. The petitioner shall pay the cost on the next date of hearing before the Trial Court. The petitioner shall cross examine PW.2 on the date fixed by the Trial Court. - 5 - HC-KAR NC: 2025:KHC:18699 WP No. 51467 of 2019 iv) In the event, the petitioner fails to pay/deposit the cost or fails to cross examine PW.2 on the date fixed by the Trial Court for the said purpose, the petitioner shall lose the benefit of this order. v) Consequent to the cross examination of PW.2, the Trial Court shall proceed further in the suit in accordance with law. Sd/- (C.M. POONACHA) JUDGE BS List No.: 1 Sl No.: 32