- 1 - HC-KAR NC: 2025:KHC:26098 WP No. 19439 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 19439 OF 2025 (GM-CPC) BETWEEN: SRI GOVINDASWAMY M., S/O LATE MAHADEVA G, AGED ABOUT 66 YEARS, RESIDING AT NO. 531, 10TH ‘C’ MAIN ROAD, 6TH BLOCK, RAJAJINAGAR, BENGALURU – 560 010. …PETITIONER (BY SRI VEGADARSHI K., ADVOCATE) AND: 1. SRI KUBENDRA A., AGED ABOUT 53 YEARS, S/O LATE ARMUGAM. 2. SRI KRISHNAPPA A., AGED ABOUT 48 YEARS, S/O LATE ARMUGAM. 3. SRI RANGAPPA A., AGED ABOUT 46 YEARS, S/O LATE ARMUGAM. Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:26098 WP No. 19439 of 2025 4. SMT.GANGAMMA @ GANGABAI AGED ABOUT 50 YEARS, W/O SRINIVASA D/O LATE ARMUGAM. AS PER THE PLAINT RESPONDENT NOS.1 TO 4 RESIDING AT NO. 531, 10TH ‘C’ MAIN ROAD, 6TH BLOCK, RAJAJINAGAR, BENGALURU – 560 010. 5. SMT.MUNIRATHNA W/O LATE V.B.AMARNATH AGE MAJOR. 6. SMT.KAVITHA D/O LATE V.B.AMARNATH AGE MAJOR. 7. SMT.ROOPA D/O LATE V.B.AMARNATH AGE MAJOR. 8. SRI VINAYAKA S/O LATE V.B.AMARNATH AGE MAJOR. RESPONDENT NOS.5 TO 8 ARE RESIDING AT NO.26, 1ST CROSS, ‘A’ STREET, MAGADI ROAD LEFT SIDE BENGALURU – 560 023. 9. SRI B.R.PAPANNA S/O B.P.RAMACHANDRA, AGED ABOUT 54 YEARS, RESIDING AT NO. B-115, - 3 - HC-KAR NC: 2025:KHC:26098 WP No. 19439 of 2025 2ND CROSS, MAGADI ROAD LEFT SIDE, BENGALURU – 560 023. …RESPONDENTS (BY SRI HAREESH BHANDARY T., ADVOCATE FOR R-1 TO R-4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE AND QUASH THE IMPUGNED ORDER DATED 26.06.2025 IN O.S. 419/2008 PASSED BY THE HON’BLE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-44), BENGALURU (ANNEXURE-A) AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner-defendant No.2 is at the doors of this Court calling in question an order dated 26-06-2025 passed in O.S.No.419 of 2008, whereby the warrant that is issued to summon witnesses who was a signatory to a particular Will - 4 - HC-KAR NC: 2025:KHC:26098 WP No. 19439 of 2025 comes to be declined and the evidence is observed as stood closed. 2. Facts in brief are as follows: A suit is instituted for partition and separate possession in OS No. 419 of 2008 against the petitioner and others. The petitioner/defendant No.2, enters the witness box and exhibits a registered Will dated 24-12-2007. The Will is permitted to be marked as Ex.D1, obviously subject to its proof. In order to prove the registered Will, the petitioner files an application for issuance of summons to the attesting witness of the will one D. Kumar. The Court allows the application and issues summons to the said witness D. Kumar. Later, the concerned Court records that summons is served upon the witness D. Kumar, but he remains absent and thereafter issues warrant and the same was not executed. 2.1. The Court ought to have reissued the warrant to be executed by the jurisdictional police, that does not happen. But what comes about is the closure of the evidence of the petitioner on the said Will. The petitioner, then, immediately - 5 - HC-KAR NC: 2025:KHC:26098 WP No. 19439 of 2025 files applications seeking recall of the order and reopening of the case to lead further evidence and also one more application to issue arrest warrant against the witness D. Kumar. The concerned Court rejects the same. Therefore, the petitioner is before this Court in the subject petition. 3. Heard Sri Vegadarshi K, learned counsel appearing for petitioner and Sri Hareesh Bhandary T, learned counsel appearing for respondents 1 to 4. 4. The impugned order that drives the petitioner to this Court reads as follows: “Following addl. Issues framed. 1. Whether 2nd defendant proves that suit item No.1 property is self acquired or property of defendant No.1 ? 2. Whether 2nd defendant proves that suit item No.1 property is bequeathed in his favour as per WILL dated.24.12.2007? Counsel for plaintiff submits no oral evidence on addl. Issues. Counsel for defendant has submits he is already led evidence of D.W.1 in respect of WILLL. Counsel for defendant filed application to re-open the case and also issue warrant to witness D.Kumar. - 6 - HC-KAR NC: 2025:KHC:26098 WP No. 19439 of 2025 On 26.03.2025 application Under Order 16 rule 1 C.P.C. was allowed and 2nd defendant was permitted to file list of witness. On 11.04.2025 summons was served to witness but he was absent. Likewise on 03.06.2025 witness warrant is also issued and on 16.06.2025 the warrant was returned as unexecuted. This court has issued witness warrant earlier also and hence, the applications are not maintainable. Accordingly both the applications filed Under Section 151 C.P.C. and Under Order 16 Rule 10(3) C.P.C. is hereby rejected. Head counsel for plaintiff partly. For further arguments, by 05.07.2025.” The concerned Court notices that the warrant is not executed. Therefore, further evidence on behalf of the petitioner is taken as closed. This is the order that shocks the Court. If the warrant is not executed, a further warrant ought to have been reissued, for it to be executed through the assistance of the jurisdictional police, as the witness after receipt of summons, could not have abstained from appearance before the Court, as he is the attesting witness to the registered Will, that is now put forth as evidence by the petitioner. In that light, the order dated 26-06-2025, is on the face of it, contrary to law and is to be obliterated. - 7 - HC-KAR NC: 2025:KHC:26098 WP No. 19439 of 2025 5. For the aforesaid reasons, the following: ORDER (i) The Writ Petition is allowed. (ii) The order impugned dated 26-06-2025 passed by the XLIII Additional City Civil and Sessions Judge, Bengaluru stands quashed. (iii) The application so filed by the petitioner for re- issuance of warrant is allowed. The warrant, if not executed, the assistance of the jurisdictional police shall be taken to execute the said warrant. (iv) Further proceedings be regulated by the concerned Court after the witness appears as evidence. Ordered accordingly. Sd/- (M.NAGAPRASANNA) JUDGE BKP List No.: 1 Sl No.: 57