- 1 - NC: 2025:KHC:1297 WP No. 27599 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 27599 OF 2024 (GM-CPC) BETWEEN: TUMAKURU CITY MUNICIPAL CORPORATION REP BY ITS COMMISSIONER TUMAKURU-560027 …PETITIONER (BY SRI. SUBRAMANYA R., ADVOCATE) AND: 1. STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT M S BUILDING, BENGALURU - 560001 REP BY ADDL CHIEF SECRETARY. 2. M/S B N PADMANABHAIAH SON AND CO SRI KRISHNA TALKIES M G ROAD, TUMAKUR PARTNERSHIP FIRM REP BY ITS MANAGING PARTNER SRI B G SRINIVAS RAO S/O B P GOPALAKRISHNA RAO AGED ABOUT 77 YEARS R/AT MG ROAD, TUMKUR TOWN TUMKUR-560027 …RESPONDENTS (BY SRI. S H RAGHAVENDRA, AGA FOR R1: SRI P M SIDDAMALLPPA., ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE ORDER DATED: 27.06.2024 ON IA UNDER SECTION 151 OF CPC IN OS NO. 401/2015 ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE AT TUMKUR (ANNEXURE-A) AND ETC. Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1297 WP No. 27599 of 2024 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL ORDER This petition is filed by defendant No.2 under Article 227 of the Constitution of India, challenging the order dated 27.06.2024, passed in O.S.No.415/2015 by the Additional Senior Civil Judge and CJM, Tumakuru, whereby the application filed by defendant No.2 for re-opening the evidence of DW1 in the above case, was rejected. 2. The plaintiff filed a suit for damages, on the ground that the respondents have demolished the compound wall illegally. After service of summons, defendants appeared through counsel and filed written statement denying the demolition of the compound wall. On the basis of the pleadings of the parties, the trial court has framed the issues. The matter was contested. After the completion of evidence of plaintiff, the matter was posted for the evidence of the defendants. When the matter was posted on 15.12.2021 for examination of DW1, - 3 - NC: 2025:KHC:1297 WP No. 27599 of 2024 DW1 was examined. For cross-examination of DW1, several time adjournment has been granted. But she did not tender for cross-examination. Hence, on 16.02.2023 her evidence has been discarded. Thereafterwards, on an application filed by the defendant, the order has been set aside on 22.09.2023 by imposing a cost of Rs.1,000/-. Thereafter, again, DW1 remained absent without tendering for cross-examination. Again an adjournment was sought on the ground that she was on maternity leave. Since defendant No.2 has not produced any document to show that DW1 was on maternity leave and since the suit is of the year 2015, her evidence has been discarded. Thereafter, the application filed for re-opening the case for adducing the evidence of DW1, came to be dismissed. Being aggrieved by the same, defendant No.2 is before this Court. 3. The learned counsel for the petitioner/defendant No.2 has contended that when the matter was posted for cross-examination of DW1, she was on materiality leave. - 4 - NC: 2025:KHC:1297 WP No. 27599 of 2024 Since no proper document has been produced to show that she was on maternity leave, the court has discarded the evidence of DW1. It is contended that, now, the document has been produced to show that from 22.08.2023 to 22.11.2023 she was on maternity leave and from 23.11.2023 to 20.02.2024 she was on child care leave. Therefore, she was not available for cross-examination. He further contended that, if this Court grants one more opportunity, without taking any further adjournment, on the date to be fixed by the trial court for cross- examination of DW1, she will be made available for cross- examination. 5. Learned counsel for the respondent No.2 has contended that the suit has been filed in the year 2015. Even though 9 years have elapsed, evidence has not been completed. Even, on the earlier occasion, the evidence of DW1 has been discarded and at their request she has been recalled and thereafter also she was not available for cross-examination. He contended that the application filed - 5 - NC: 2025:KHC:1297 WP No. 27599 of 2024 for re-opening of the case is filed in a casual manner, without giving any proper explanation and no document has been produced to show that she was on maternity leave. Therefore, the trial court has rightly rejected the application. 6. Heard the learned counsel for the parties and perused the writ papers. 7. It is not in dispute that the plaintiff filed a suit for damages on the ground that the compound wall was demolished by defendant No.2 illegally. The defendant No.2 filed a written statement denying the same. When the matter was set down for evidence of defendants, they have examined DW1 on 15.12.2021. Thereafter, she was not available for the cross-examination. Once the evidence of DW1 has been discarded, on request of defendant No.2 the order was recalled after imposing cost, even thereafter, she was not available for cross- examination. - 6 - NC: 2025:KHC:1297 WP No. 27599 of 2024 8. The learned counsel appearing for the petitioner/defendant No.2 submitted that, from 22.08.2023 to 22.11.2023, DW1 was on maternity leave and from 23.11.2023 to 20.02.2024, she was on child care leave. He further contended that, if this Court grants one more opportunity, the defendant No.2 will not seek any further adjournment. They will go on with the matter making available DW1 for cross-examination. 9. In view of the above, the following order is passed: (i) The writ petition is allowed. (ii) The order dated 27.06.2024 passed on IA in O.S.No.401/2015 is set aside. (iii) IA filed in O.S.No.401/2015 is allowed. The order dated 03.02.2024 is recalled. (iv) The defendant No.2 is directed to make available DW1 for cross-examination on the - 7 - NC: 2025:KHC:1297 WP No. 27599 of 2024 date to be fixed by the trial court, ie., on 29.01.2025. (v) The trial court is directed to fix the date on 29.01.2025 for cross-examination of DW1. On that day, they shall keep her present before the court and she has also to be made available for cross-examination on the further date to be fixed by the trial court. (vi) The above exercise is subject to petitioner/ defendant No.2 paying a cost of Rs.15,000/- to the plaintiff. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM List No.: 1 Sl No.: 78