- 1 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.2506/2020 (GM-CPC) C/W WRIT PETITION NO.4451/2020 (GM-CPC) IN W.P. No.2506/2020: BETWEEN: SRI. M.C. SURESH S/O B.M. CHAMANNA AGED ABOUT 60 YEARS R/AT NO.968/47, II MAIN M C LAYOUT, VIJAYANAGAR BENGALURU-560040. …PETITIONER (BY SRI. C.M. NAGABHUSHANA, ADV.,) AND: 1. M/S. COMFORT SHELTERS PRIVATE LTD., HAVING ITS OFFICE AT NO.102 5TH FLOOR, SHAKTHI COMFORT TOWER ABOVE IDBI BANK, K H ROAD BENGALURU-560027 REP BY ITS DIRECTORS. 2. SRI. P.N. CHANDRASHEKAR S/O P.V. NANJUNDA RAO AGED ABOUT 48 YEARS NO.102, 5TH FLOOR SHAKTHI COMFORT TOWER ABOVE IDBI BANK, K.H. ROAD BENGALURU-560027. Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 3. SRI. K. VIJAYA KUMAR S/O LATE KEMPAIAH AGED ABOUT 56 YEARS NO.102, 5TH FLOOR SHAKTHI COMFORT TOWER ABOVE IDBI BANK, K.H. ROAD BENGALURU-560027. 4. SRI. M.C. SUNIL KUMAR S/O P.M. CHAMANNA AGED ABOUT 49 YEARS R/AT NO.356, 6TH CROSS SIDDARANGA CHOULTRY ROAD MANJUNATHA NAGAR BENGALURU-560001. 5. MS. C.S. REKHA D/O M.C. SURESH AGED ABOUT 28 YEARS. 6. MS. C.S. RASHMI D/O M.C. SURESH AGED ABOUT 25 YEARS. 7. MR. C.S. KULDEEP S/O M.C. SURESH AGED ABOUT 20 YEARS. R5 TO R7 ARE R/AT NO.968/47 II MAIN, M C LAYOUT VIJAYANAGAR, BENGALURU-560040. …RESPONDENTS (BY SRI. M.S. PRAKASH, ADV., FOR R1 TO R3 SRI. C. SHANKAR REDDY, ADV., FOR R4 R5 TO R7 ARE SERVED AND UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 14.01.2020, ON I.A.NO.29 AND 30, PASSED BY THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU CCH NO.15 IN O.S.NO.5143/2011 AT ANNEXURE-J AND THEREBY ALLOW THE APPLICATIONS FILED BY THE PETITIONER IN I.A.NO.29 AND 30 AT ANNEXURE-G1 AND G2 & ETC. - 3 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 IN W.P. NO.4451/2020: BETWEEN: 1. MS. C.S. REKHA D/O M.C. SURESH AGED 28 YEARS. 2. MS. C.S. RASHMI D/O M.C. SURESH AGED 25 YEARS. 3. MR. C.S. KULDEEP S/O M.C. SURESH AGED 20 YEARS. ALL ARE R/AT NO.968/47, II MAIN M.C.LAYOUT, VIJAYANAGAR BENGALURU-560 040. ...PETITIONERS (BY SRI. C.M. NAGABHUSHANA, ADV.,) AND: 1. M/S. COMFORT SHELTERS PRIVATE LTD., HAVING ITS OFFICE AT NO.102 5TH FLOOR, SHAKTHI COMFORT TOWER ABOVE IDBI BANK, K.H.ROAD BENGALURU-560 027 REP BY ITS DIRECTORS. 2. SHRI. P.N. CHANDRASHEKAR S/O P.V. NANJUNDA RAO AGED 48 YEARS NO.102, 5TH FLOOR SHAKTHI COMFORT TOWER ABOVE IDBI BANK, K.H.ROAD BENGALURU-560027. 3. SHRI. K. VIJAYA KUMAR S/O LATE KEMPAIAH AGED 56 YEARS NO.102, 5TH FLOOR SHAKTHI COMFORT TOWER - 4 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 ABOVE IDBI BANK, K.H.ROAD BENGALURU-560 027. SMT. D. KANTHAMMA W/O B.M. CHAAMANNA SINCE DIED BY LRS. 4. SRI. M.C. SURESH S/O B.M. CHAMANNA AGED 60 YEARS. 5. SRI. M.C. MANJUNATH S/O B.M. CHAMANNA AGED 58 YEARS. R4 & R5 ARE R/AT 968/47 II MAIN, M.C.LAYOUT VIJAYANAGAR, BENGALURU-560040. 6. SRI. M.C. SUNIL KUMAR S/O B.M. CHAMANNA AGED 49 YEARS R/AT NO.356, 6TH CROSS SIDDARANGA CHOULTRY ROAD MANJUNATHA NAGAR BENGALURU-560 001. ...RESPONDENTS (BY SRI. M.S. PRAKASH, ADV., FOR R1 TO R3 R4 TO R6 ARE SERVED AND UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER QUASHING THE ORDER DATED 14.1.2020 PASSED BY THE VIII ADDITIONAL CITY CIVIL AND SESSION JUDGE BENGALURU (CCH-15) IN O.S.NO.5143/2011 AT ANNEXURE-A, IN I.A.NO.28 & ETC. THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL - 5 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 ORAL ORDER Writ petition No.2506/2020 is filed seeking for the following relief: "Set aside the impugned order dated 14.01.2020, on I.A.No.29 and 30, passed by the VIII Additional City Civil and Sessions Judge at Bengaluru CCH No.15 in O.S.No.5143/2011 at Annexure-J and thereby allow the applications filed by the petitioner in I.A.No.29 and 30 at Annexure-G1 & G2." Writ petition No.4451/2020 is filed seeking for the following relief: "Issue a writ of certiorari or any other appropriate writ or order quashing the order dated 14.01.2020 passed by the VIII Additional City Civil and Sessions Judge, Bengaluru (CCH-15) in O.S.No.5143/2011 at Annexure-A, in I.A.No.28." 2. Since both the writ petitions arise out a common order passed on I.A.Nos.28, 29 and 30 in O.S.No.5143/2011, they are clubbed together, heard together and a common order is passed. 3. Heard. - 6 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 4. Sri.C.M.Nagabhushan and Sri.V.B. Shivakumar, learned counsel appearing for the petitioners submits that the respondent Nos.1 to 3 filed a suit for specific performance of the joint development agreement dated 01.09.2008. In the said suit, the petitioner-defendant No.2 has filed a written statement along with defendant Nos.5 to 7 denying the joint development agreement and the case of the respondent Nos.1 to 3-plaintiffs. Contrary to the said stand, the defendant No.4- one of the brother has filed written statement. It appears that the defendant No.4 had colluded with the respondent Nos.1 to 3-plaintiffs and filed a suit. Hence, an application came to be filed in I.A.No.22 seeking prayer to bring the defendant No.4 to examine himself as a witness first and thereafter to adduce the evidence of the other defendants. The said application was not opposed by the defendant No.4. However, the same was strongly opposed by the plaintiffs which made clear the doubt of the petitioners that the suit was filed by the plaintiffs in collusion with the defendant No.4. 5. Be that as it may, the Trial Court allowed the application filed by the petitioners on 09.09.2019 directing the - 7 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 defendant No.4 to adduce the evidence and posted the matter for his evidence. It is submitted that the defendant No.4, consecutively on four dates could not lead the evidence. The Trial Court closed the evidence of the defendant No.4 and asked the petitioners and other defendants to adduce evidence. Accordingly, the petitioner-defendant No.2 examined himself as DW-1 on 04.11.2019. The said witness was cross-examined by the plaintiff-respondent No.1. Later, the defendant No.4 filed an application on 03.01.2020 to recall the order dated 04.11.2019 on which day, the evidence of the defendant No.4 was closed. 6. It is further submitted that the Trial Court, without considering the effect of the order dated 09.09.2019 and without providing any opportunity to the petitioners, allowed the application on cost of Rs.500/- on 03.01.2020. It is also submitted that immediately thereafter, the petitioners filed three applications i.e. I.A.Nos.28, 29 and 30 seeking to recall the order dated 03.01.2020 and to discard the evidence of DW- 2. The Trial Court kept those applications in abeyance. Hence, the present petition is filed seeking to set aside the order dated - 8 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 03.01.2020 and to discard the evidence of DW-2. It is submitted that the entire attempt of the petitioner-defendant No.2 was to ensure that the evidence of defendant No.4 be recorded first so that the stand of the defendant No.4 would be clear in the suit as there was a specific assertion that the plaintiff and defendant No.4 have colluded with each other in the suit and the same has been viewed by the Trial Court in its order. However, the Trial Court has defeated the object of order dated 09.09.2019 by allowing the application filed by the defendant No.4. Hence, he seeks to allow the writ petitions by setting aside the order dated 03.01.2020 and discarding the evidence of DW-2 by allowing the writ petition. 7. Per contra, Sri.C.Shankar Reddy, learned counsel appearing for the respondent No.4 submits that the respondent No.4 being the Government doctor and brother of the petitioner could not attend the proceedings on the given date. Hence, he could not adduce the evidence. It is submitted that the right of the party to adduce the evidence cannot be decided as held by the Trial Court and permitted him to lead the evidence. It is submitted that the stand taken by the defendant No.4 in the - 9 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 suit is not contrary to the stand taken by the other defendants. Hence, he seeks to dismiss the petition. 8. Sri.M.S.Prakash, learned counsel for the respondent Nos.1 to 3-plaintiffs supports the order of the Trial Court and submits that the collusion as claimed by the petitioners between the plaintiffs and the defendant No.4 is without any basis. Hence, he seeks to dismiss the petition. 9. I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent Nos.1 to 3, respondent No.4 and perused the material available on record. I have given my anxious consideration to the arguments advanced by both the sides. 10. The respondent No.1-plaintiff filed O.S.No.5143/2011 seeking the relief of specific performance of the registered joint development agreement dated 01.09.2008 and for consequential prayer. In the said suit, the defendants have filed the written statement. The plaintiff No.1 examined himself as PW-1. Thereafter, the defendant No.2 filed an application seeking a direction to examine the defendant No.4 - 10 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 first on the premise that the defendant No.4 has colluded with the plaintiffs and is taking a stand contrary to the interest of the other family members i.e. other defendants. The said application filed by defendant No.2 came to be allowed by the Trial Court by a detailed order dated 09.09.2019. A perusal of the said order at paragraph 4 clearly indicates that the Trial Court has accepted the prima facie request of the defendant No.2 and directed the defendant No.4 to adduce the evidence before other witnesses were examined. Admittedly, the said order of the Trial Court dated 09.09.2019 has attained finality. The order sheet indicates that the Trial Court has provided four adjournments to the defendant No.4 to adduce the evidence as directed in the order dated 09.09.2019. The defendant No.4 could not come forward and adduce the evidence. The Trial Court, on 04.11.2019 closed the evidence of the defendant No.4 and posted the matter for the evidence of defendant No.2. On the said date, the defendant No.2 has been examined and the said witness has been cross-examined at length. Later, on 03.01.2020, the defendant No.4 filed an application under Order XVIII Rule 17 of the CPC to recall the order dated 04.11.2019 and the said application was allowed on the very - 11 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 same day by imposing cost of Rs.500/-. Admittedly, the said order of the Trial Court is a cryptic order passed without taking note of the earlier order dated 09.09.2019 and its effect. 11. The contention of the learned counsel for the petitioners is that the said order of the Trial Court dated 03.01.2020 is passed without providing any opportunity to the petitioner-defendant No.2. Therefore, I am of the considered view that the Trial Court has committed a grave error in passing the order dated 03.01.2020 without taking note of and effect of order dated 09.09.2019 wherein the Trial Court has categorically held that the contention of the defendant No.2 that defendant No.4 has joined hands with the plaintiffs, prima facie appears to be true and directed the defendant No.4 to produce his evidence before the evidence of other witnesses. When things stood thus, the order dated 03.01.2020 is required to be set aside and accordingly the same is set aside. The material on record further indicates that the defendant No.4 has lead the evidence and thereafter, an application is filed by the petitioner-defendant No.2 to discard the said evidence. The Trial Court has adopted highly improper procedure in - 12 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 passing the order dated 03.01.2020 and keeping the applications filed by the petitioner to discard the evidence of defendant No.4 in abeyance. In my considered view, the Trial Court is required to re-consider the application filed by the defendant No.4 to recall the order dated 03.01.2020 and the application filed by the defendant No.2-petitioner seeking to discard the evidence of defendant No.4 simultaneously by considering the effect of order dated 09.09.2019. The evidence of the defendant No.4 on record is kept in abeyance till the Trial Court passes an appropriate order on merits of the aforesaid application. 12. For the aforementioned reasons, I proceed to pass the following: ORDER (i) W.P.No.2506/2020 is allowed. (ii) The order dated 03.01.2020 is set aside. (iii) The Trial Court is directed to consider the application filed by the defendant No.4 to recall the order dated 04.11.2019 and application of the petitioner-defendant No.2 filed under Order XVIII - 13 - HC-KAR NC: 2025:KHC:25330 W.P. No.2506/2020 C/W W.P. No.4451/2020 Rule 3 of the CPC, seeking to discard the examination-in-chief of DW-2 simultaneously in accordance with law after providing sufficient opportunity to the parties to the proceedings. (iv) In view of the aforesaid order, the impugned order dated 14.01.2020 is set aside to the aforesaid extent. (v) W.P.No.4451/2020 filed by the defendant Nos.5 to 7 challenging the same order is also allowed. Sd/- (VIJAYKUMAR A. PATIL) JUDGE RV List No.: 1 Sl No.: 31