- 1 - HC-KAR NC: 2025:KHC:26714 W.P. No.9088/2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.9088/2020 (GM-CPC) BETWEEN: SRI. M. BABU REDDY AGED ABOUT 44 YEARS S/O LATE MUNISWAMY REDDY @ BODI REDDY R/AT. N. VENKATAPURA VILLAGE NANGALI POST, BYRAKURU HOBLI MULBAGAL TALUK, KOLAR DISTRICT-5631312. …PETITIONER (BY SRI. UMESH B.N. ADV.,) AND: 1. SRI. C. VENKATA REDDY AGED ABOUT 67 YEARS S/O LATE ORRUMUNDHECHANGA REDDY R/AT. N. VENKATAPURA VILLAGE NANGALI POST, BYRAKURU HOBLI MULBAGAL TALUK KOLAR DISTRICT-563132. 2. SMT. SAROJAMMA AGED ABOUT 59 YEARS W/O C. VENKATA REDDY R/AT. N. VENKATAPURA VILLAGE NANGALI POST, BYRAKURU HOBLI MULBAGAL TALUK KOLAR DISTRICT-563132. 3. SRI. V. DARESH AGED ABOUT 28 YEARS S/O C. VENKATA REDDY R/AT. N. VENKATAPURA VILLAGE NANGALI POST, BYRAKURU HOBLI Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:26714 W.P. No.9088/2020 MULBAGAL TALUK KOLAR DISTRICT-563132. 4. SMT. N. HEMALATHA AGED ABOUT 49 YEARS W/O SRI. M.V. CHANDRASHEKHAR REDDY R/AT. N. VENKATAPURA VILLAGE NANGALI POST, BYRAKURU HOBLI MULBAGAL TALUK, KOLAR DISTRICT-563132. …RESPONDENTS (BY SRI. SUSHAL TIWARI, ADV., FOR SRI. CHANDRASHEKARA REDDY M.V. ADV., FOR R4 V/O/DTD:25.11.2020 NOTICE TO R1 TO R3 H/S) - - - THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR ORDER IN THE NATURE OF CERTIORARI OR OTHER APPROPRIATE WRIT OR ORDER TO SET ASIDE ORDER DATED 15.06.2020 IN I.A.NO.XIII IN O.S.NO.310 OF 2012 VIDE ANNEXURE-K PASSED BY THE PRINCIPAL CIVIL JUDGE CUM JMFC AT MULBAGAL, KOLAR DISTRICT BY ALLOWING THE ABOVE WRIT PETITION & 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 writ petition is filed seeking for the following relief: "Issue a writ or order in the nature of certiorari or other appropriate writ or order to set aside order dated 15.06.2020 in I.A.No.XIII in OS No.310/2012 vide Annexure-K passed by the Principal Civil Judge cum JMFC at Mulbagal, Kolar district by allowing the above writ petition and grant such other relief/s as this Hon'ble court may deem fit and proper in the interest of justice and equity." - 3 - HC-KAR NC: 2025:KHC:26714 W.P. No.9088/2020 2. Heard. 3. Sri.Umesh B.N., learned counsel appearing for the petitioner submits that the petitioner-plaintiff has filed a suit for specific performance of the agreement dated 29.04.2009 and the parties have adduced the evidence. It is submitted that the defendant No.1 executed an agreement of sale in favour of the plaintiff. The defendant No.1 has been examined as DW-1 at length and the plaintiff has cross-examined him. During the course of the cross-examination, the defendant No.4 confronted an agreement of sale dated 07.04.2007 entered into between the defendant No.4 and the defendant No.1 and got certain admissions. It is further submitted that after the closure of the cross-examination of DW-1, the petitioner-plaintiff filed an application to recall DW-1 for further cross-examination on the ground that he needs to cross-examine DW-1 on the confronted document, which came to be rejected by the Trial Court under the impugned order by recording a reason that DW-1 has been fully cross-examined by the plaintiff's counsel on two occasions and there is no ambiguity in the evidence. It is also submitted that an opportunity needs to be provided to the petitioner- - 4 - HC-KAR NC: 2025:KHC:26714 W.P. No.9088/2020 plaintiff as he had no occasion to put forth the questions to DW-1 on the confronted document which has taken place at the later stage of the trial. Hence, he seeks to allow the petition. 4. Per contra, Sri.Sushal Tiwari, learned counsel appearing for the respondent No.4-defendant No.4 supports the impugned order of the Trial Court and submits that the defendant No.1 executed the registered agreement of sale dated 07.04.2007 in favour of the defendant No.4 and later, executed a registered sale deed dated 19.05.2009 and the said fact is already in the pleading. Hence, the Trial Court has rightly rejected the application. It is submitted that it is the case of the defendant No.4 that the plaintiff and the defendant No.1 are colluding and the suit has been filed to defeat the right of the defendant No.4. It is further submitted that the witness cannot be recalled under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, to fill the lacunae. In support of his contentions, he has placed reliance on the decision of the Hon'ble Supreme Court in the case of SHUBHKARAN SINGH Vs. ABHAYRAJ SINGH AND - 5 - HC-KAR NC: 2025:KHC:26714 W.P. No.9088/2020 OTHERS1. It is also submitted that the agreement of sale confronted by defendant No.1 is a public document. Hence, the petitioner ought to have secured the same and cross-examined DW-1 when he adduced the evidence. Therefore, 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.4 and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides. 6. The undisputed facts are that the petitioner-plaintiff has filed O.S.No.310/2012 for the relief of specific performance of the agreement of sale dated 29.04.2009. The said plaint came to be opposed by the defendant No.4, particularly in issue Nos.5 and 6, which are framed to determine whether the defendant No.4 proves that the defendant No.1 has executed the sale agreement on 07.04.2007 and also that whether the defendant No.4 proves that the defendant Nos.1 and 2, in collusion with the plaintiff have created a spurious agreement 1 2025 SCC ONLINE SC 1028 - 6 - HC-KAR NC: 2025:KHC:26714 W.P. No.9088/2020 dated 29.04.2009. To discharge the said burden, the defendant No.4 adduced the evidence and filed an application to further cross-examine DW-1. During the course of the cross-examination, the defendant No.4 confronted DW-1 with the agreement of sale dated 07.04.2007 and secured certain admissions. After the closure of the cross-examination of DW- 1, the petitioner-plaintiff filed an application under Order XVIII Rule 17 read with Section 151 of the CPC seeking to recall DW- 1 for further cross-examination on the ground that he had no opportunity to cross-examine DW-1 on the confronted document dated 07.04.2007. The Trial Court rejected the same on the ground that there is no ambiguity. In my considered view, the Trial Court has committed a grave error in rejecting the said application as the petitioner-plaintiff had no occasion to cross-examine DW-1 on the document i.e. agreement of sale dated 07.04.2007 when he had cross- examined the defendant No.1 on 10.12.2019 and 18.01.2020. The judgment relied upon by the learned counsel for the petitioner has no application to the facts and circumstances of the case on hand as the Hon'ble Supreme Court in the aforesaid decision has held that the application under Order - 7 - HC-KAR NC: 2025:KHC:26714 W.P. No.9088/2020 XVIII Rule 17 read with Section 151 of the CPC cannot be allowed to fill the lacunae in the evidence. In the instant case, the attempt of the petitioner-plaintiff is not to fill the lacunae but to put forth the question to DW-1 with regard to the agreement of sale dated 07.04.2007. 7. For the aforementioned reasons, I proceed to pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 15.06.2020 passed on I.A.No.13 filed under Order XVIII Rule 17 read with Section 151 of the CPC in OS No.310/2012 by the Principal Civil Judge and JMFC, Mulbagal, is set aside. Consequently, I.A.No.13 is allowed. (iii) DW-1 shall remain present before the Court on 11.08.2025 for further cross-examination by the petitioner-plaintiff. No orders as to cost. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 38