- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.2112 OF 2022 (GM-CPC) BETWEEN: SRI VENKAPPA GOWDA AGED ABOUT 73 YEARS, S/O AYYANNA GOWDA, REPRESENTED BY HIS GENERAL POWER OF ATTORNEY HOLDER, YASHODHARA GOWDA, AGED ABOUT 44 YEARS, S/O VENKAPPA GOWDA, R/AT KODDOLU HOUSE, UJIRE VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA-574240 …PETITIONER (BY SRI. VIVEK B.N., ADVOCATE FOR SRI ABHINAV RAMANAND A., ADVOCATE) AND: SRI FELIX RODRIGUES S/O LAWRENCE RODRIGUES, SINCE DECEASED, 1. SRI FRANCIS RODRIGUES, AGED ABOUT 64 YEARS, S/O LAWRENCE RODRIGUES, R/.AT NELLIPADAVU, UJJIRE VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA-574240 ® - 2 - 2 . SRI JOKIM RODRIGUES AGED ABOUT 62 YEARS, S/O LAWRENCE RODRIGUES, R/.AT NELLIPADAVU, UJJIRE VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA-574240 3 . SRI DEVAPPA GOWDA AGED ABOUT 47 YEARS, S/O KARIYAPPA GOWDA, R/AT SHIVAKRIPA COMPOUND, SHANTHINAGARA, UJIRE VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA-574240. …RESPONDENTS (BY SRI. A.KESHAVA BHAT, ADVOCATE FOR R-3; R1 AND R2 ARE SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.8.12.2021 PASSED BY THE ADDL CIVIL JUDGE AND JMFC AT BELTHANGADY DAKSHINA KANNADA IN O.S.NO.20/2012 AT ANNEXURE-G TO THE WRIT PETITION AND ALLOW THE INTERLOCUTORY APPLICATION NUMBER XIII DTD.28.9.2021 FILED BY PETITIONER IN O.S.NO.20/2012 AT ANENXURE-D TO THE W.P. BY ALLOWING THE PRESENT PETITION. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER 1. The present writ petition is filed seeking to quash the order dated 08.12.2021 in O.S.No.20/2012, on the file of the Addl. Civil Judge and JMFC at Belthangady, - 3 - Dakshina Kannada (‘the Trial Court’ for short) and allow I.A.No.XIII filed under Order XVI Rule 1(3) and section 151 of the CPC. 2. The petitioner herein is the plaintiff before the Trial Court and the respondents herein are the defendants before the Trial Court. 3. The brief facts of the case are that:- In the affidavit filed in support of I.A.No.XIII, the G.P.A.Holder of the plaintiff averred that defendant No.1 died during the pendency of the suit, and being unmarried, was survived only by his brothers, namely Francis Rodrigues and Jokim Rodrigues, who were brought on record as defendant Nos.1(a) and 1(b). Defendant No.1(a) entered appearance and adopted the written statement earlier filed by the deceased defendant No.1. It is further stated that defendant No.1(a) is fully aware of all facts relating to the suit schedule property and that the plaintiff’s father seeks a declaration that he has perfected his right over the said property by adverse possession. It - 4 - was urged that the evidence of defendant No.1(a) is essential for establishing the plaintiff’s claim and hence, the application ought to be allowed. 4. On the other hand, the defendants opposing the application, contended that no valid grounds have been made out, and that it is a mere attempt to delay disposal of the suit, thereby seeking its rejection. Similarly, it was further contended that defendant No.1(a) has not in fact adopted the written statement of the deceased defendant No.1, and that he was not originally a party to the suit, therefore, the question of his cross-examination does not arise. On such basis, counsel for defendant No.1(a) sought dismissal of the application. Accordingly, for disposal of I.A.No.XIII, the following points were framed for consideration: (i) whether the plaintiff has made out grounds to compel or summon the opposite party to depose as a witness in the suit, and (ii) what order is to be passed. - 5 - 5. The Trial Court on I.A.No.XIII held that the object of Order XVI Rule 1(2) CPC is that a party seeking to summon a witness must disclose the purpose, enabling the Court to decide whether such evidence is material for adjudication. The Court has a duty to ensure that summoning is not sought for collateral or dilatory purposes but only to prove material facts. In the processual system of jurisprudence deliverance of substantial justice is praise worthy affair. The Courts are also bound to prevent protracted delays, considering the character of the litigation, the number and nature of issues, the burden of proof, and the specific purpose for summoning a witness. 6. In the present case, it was observed by the Trial Court that the plaintiff has instituted a suit for declaration of ownership by adverse possession and consequential injunction. After service of summons, the defendants appeared and filed their written statement. Evidence of PW1, PW2 and DW1 was already completed and the matter was posted for arguments. The plaintiff seeks to summon defendant No.1(a), contending that his testimony - 6 - is relevant to establish adverse possession. Conversely, for the defendants argued that the application is a device to delay the proceedings and sought dismissal with costs. 7. Further, the Apex Court in Mange Ram v. Brij Mohan, reported in (1983) 4 SCC 36, held that while Order XVI Rules 1 and 1A of CPC cast an obligation to file a witness list in advance, if a witness is present in the Court at the stage of recording evidence, the Court cannot refuse examination except on grounds of frivolity, vexation, or delay. However, the Karnataka High Court in M.C. Ananda v. M.C. Chikkanna, reported in AIR 2001 Kar 139, clarified that though a party may summon an opposite party as a witness, such practice is generally disfavoured, being considered unhealthy and liable to abuse. Similar disapproval was reiterated in Mallangowda v. Gavisiddanagowda, reported in AIR 1959 Kant 194; Kaliaperumal v. Pankajavalli, reported in (1999) 1 MLJ 97; Narayana Pillai v. Kalyani Ammal, reported in 1963 KLT 537; and Muhammed Kunji v. Shahabudeen, reported in 1969 - 7 - KLT 170, wherein the Privy Council and various High Courts strongly deprecated compelling the opposite party to be examined as witness. 8. It was also observed that the issues framed in the present case require the plaintiff to prove that he has perfected his title over the suit property by way of adverse possession and is entitled to consequential relief. The onus clearly lies upon the plaintiff. Beyond a bare assertion that defendant No.1(a) is a necessary witness, no cogent reason is advanced to justify his summoning. In fact, as the above precedents establish, a plaintiff cannot compel the defendant to adduce evidence on his behalf. The proper course available is to seek adverse inference if the defendant, despite opportunity, abstains from entering the witness box. 9. Accordingly, the Trial Court finds that summoning defendant No.1(a) at the belated stage, after closure of evidence, is unwarranted. Hence, I.A.No.XIII filed by the plaintiff was rejected. - 8 - 10. It is contended by the learned counsel appearing for the petitioner that defendant No.1 having been deceased, respondents No.1 and 2 did not step into the witness box despite filing a written statement. The petitioner, who sought declaration of title by adverse possession, specifically required the evidence of defendant No.1(a)/Respondent No.1 to establish his claim. The Trial Court erroneously held that no adverse inference could be drawn against respondent No.1 without summoning him, overlooking that once he chose not to depose, adverse inference was very much available under the law. Further, the Trial Court wrongly ignored that even though the application was filed after closure of evidence, summoning respondent No.1 was crucial to ascertain adverse possession, and failure to step into the witness box warranted adverse inference. 11. It is further contended that the learned Trial Court failed to apply the well-settled principles laid down by the Apex Court in Gura Singh v. State of Rajasthan reported in (2001) 2 SCC 205, where it was held that a - 9 - party may call any person as his witness, and if such witness turns hostile, the Court may in its discretion permit cross-examination to elicit the truth. Sections 154 and 155 of the Indian Evidence Act, 1872, being exceptions to the general Rule, allow such cross- examination to extract truth and impeach adverse deposition. The Trial Court ignored this wide discretion vested in it under evidence law and proceeded to pass the impugned Order, which suffers from legal and factual infirmities and is liable to be set aside. 12. Heard learned counsel appearing on either side. 13. The learned counsel for the petitioner has placed reliance on the judgment in the case of Rajiv Vijayasarathy Rathnam v. Sudha Seetharam reported in 2019 SCC OnLine Kar 3909. 5. Having heard the learned Counsel for the parties and having perused the petition papers, no reprieve can be granted to the petitioner because: (i) In India the law relating to hostile witness is broadly delineated by the statutory provisions as interpreted by several High Courts; Section 154 of the Indian Evidence Act, 1872 provides for putting - 10 - of questions by a party to his own witness; this Section reads as under: “154. Questions by party to his own witness. —(1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. (2) Nothing in this Section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.” 6. This provision allows a party to the proceeding, civil or criminal, to put questions to his own witness in the same way as the adverse party would do in cross-examination, of course with the permission of the Court; such a witness can be asked leading questions (Section 143), questions relating to his previous statements in writing (Section 145) and questions which tend to test his veracity to discover who he is and what his standing in life is or to impeach his credit (Section 146). 14. On hearing the submissions and on perusal of the judgments relied by the counsels of the petitioner and the respondent, on perusal of the material placed on record and impugned order dated 08.12.2021 passed on I.A.No.XIII in O.S.No.20/2012, on the file of the Addl. Civil Judge and JMFC, it is observed that, the judgments relied - 11 - by the counsel for the petitioner is not appearing to the facts of the case and relying on the judgments of the respondents filed before the Trial Court it appears that the party in a suit cannot compel the opposite party or direct them to depose before the Court as witness in the suit. In the absence of the evidence of defendants the plaintiff can raise ground before the Court to draw adverse inference against the defendants. Admittedly, the present suit is filed for declaration and that he has perfected title over the suit schedule property by way of adverse possession. The burden of proof always lies on the parties who raised such rival contentions, to prove their case based on the evidence and documents available on record. Once the evidence is over it is not open for the plaintiff to compel defendant No.1(a) to adduce evidence. Present suit is pending for judgment on merit, PWs.1 and 2 and DW1 have already been examined before the Court. Already defendant was examined as DW1 and after death of the first defendant was impleaded and that stepped into the shoe of defendant No.1 and also adopted the written - 12 - statement filed by the defendant No.1. In view of the above discussions, the contention of the plaintiff that the defendant No.1(a) to be summoned to cross examine him cannot be sustained at this stage and the same was rejected by the Trial Court. As seen from the impugned proceedings it appears that the Trial Court rejected the I.A.XIII and considered to pass well reasoned order and no need to intervene in the impugned Order. 15. The writ petitioner fails to substantiate his contentions and there is no perversity or erroneousness in the order passed by the Trial Court. 16. Accordingly, the writ petition is dismissed. Sd/- (DR.K.MANMADHA RAO) JUDGE GH