- 1 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 39171 OF 2025 (GM-CPC) BETWEEN: 1. SRI MANJUANTH A SON OF LATE. ANJINAPPA, AGED ABOUTAND 37 YEARS OCCUPATION: MILK AND VENDING BUSINESS, RESIDING AT NO.1726/1, BEHIND AYYAPPASWAMY TEMPLE, JAKKUR ROAD, YELAHANKA, 3RD DIVISION, OPPOSITE VENKATESHWARA TALKIES, BENGALURU-560 064 PRESENTLY RESIDING AT NO.130/A, RAMANNA BUILDING, SANTHE CIRCLE, OPPOSITE BDK CHOULTRY, YELAHANKA, BENGALURU-560 064. 2. SRI.KUMAR.A SON OF LATE. ANJINAPPA, AGED ABOUTAND 35 YEARS OCCUPATION: PRIVATE SERVICE, RESIDING AT NO.1726/1, BEHIND AYYAPPASWAMY TEMPLE, JAKKUR ROAD, YELAHANKA,3RD DIVISION, OPPOSITE VENKATESHWARA TALKIES, BENGALURU-560 064. PRESENTLY RESIDING AT NO.130/A, RAMANNA BUILDING, SANTHE CIRCLE, OPPOSITE BDK CHOULTRY, YELAHANKA, BENGALURU-560 064. …PETITIONERS (BY SRI. N. K. KANTHARAJU, ADVOCATE) Digitally signed by MADHURI S Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 AND: 1. SMT JAYALAKSHMAMMA WIFE OF RATHNAIAH, AGED ABOUT 63 YEARS, OCCUPATION: NOT KNOWN TO THE PETITIONERS, RESIDING AT BANGALORE MANGALORE ROAD, OPPOSITE O PRUTHVI TALKIES, HASSAN 573 201. 2. SMT.ANJINAMMA WIFE OF RAJAPPA, AGED ABOUT 58 YEARS, OCCUPATION: NOT KNOWN TO THE PETITIONERS, RESIDING AT SANTHEPETE CIRCLE, BEHIND AYYAPPASWAMY TEMPLE, JAKKUR ROAD, YELAHANKA TOWN, BENGALURU-560 064. …RESPONDENTS (BY SRI. RAJESH MAHALE, SENIOR COUNSEL FOR SRI. NAGARAJ.N. DAMODAR, ADVOCATE) THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUITON OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS IN O.S.NO.6014/1997 ON THE FILE OF THE FIRST ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND QUASHING THE ORDER DATED 03.12.2025 PASSED BY THE COURT OF FIRST ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN O.S.NO.6014/1997 WHEREBY REJECTED THE APPLICATION FILED BY THE PETITIONERS/DEFENDANTS 1(B) AND 1(C) UNDER ORDER 18 RULE 17 READ WITH SECTION 151 CPC TO RECALL PW-1- JAYALAKSHMAMMA AND PERMIT THE DEFENDANTS 1(B) AND 1(C) FOR FURTHER CROSS EXAMINATION IN O.S.NO.6014/1997 PRODUCED AS ANNEXURE-A TO THE WRIT PETITION. - 3 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by defendants 1(b) and 1(c) in O.S.No.6014/2017 is directed against the impugned order dated 03.12.2025 passed by the I Addl.City Civil and Sessions Judge, Bangalore, whereby the application I.A.No.17 filed by the petitioners under Order 18 Rule 17 r/w Section 151 CPC to recall PW-1 – Smt.Jayalakshmamma for further cross examination by the petitioners was rejected by the trial court. 2. A perusal of the material on record will indicate that the respondents – plaintiffs instituted the aforesaid suit for partition and separate possession of their alleged share in the suit schedule property and for other reliefs. The said suit having been contested by the petitioners – defendants, in the first instance, the trial court passed the impugned judgment and decree dated 22.09.2007 dismissing suit field by the plaintiffs, aggrieved by which, the 1st respondent – plaintiff No.1 approached this Court in R.F.A.No.2523/2007, which was allowed by this Court vide - 4 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 judgment dated 13.06.2025 and set aside the judgment and decree dated 22.09.2007 and remitted the matter back to the trial court for reconsideration afresh in accordance with law after allowing the amendment application filed by the plaintiff and also directing conducting of DNA test in accordance with law. The operative portion of the judgment passed in RFA No.2523/2007 is as under:- “ 75. In view of the discussions made above, I pass the following: ORDER (i) The appeal is allowed. (ii) The impugned judgment and decree dated 22.09.2007 passed by the Trial Court in O.S.No.6014/1997 is set aside. (iii) The matter is remitted back to the Trial Court for fresh consideration in view of the observations made by this Court. (iv) The application filed by the appellant under Order VI Rule 17 of CPC is allowed and the appellant is permitted to amend the plaint. (v) The Trial Court shall give an opportunity to the defendant to file additional statement in view of the allowing of the application filed under Order VI Rule 17 of CPC. (vi) The application filed under Order 26 Rule 10 read with Section 151 of CPC is allowed. (vii) In view of the allowing of the application filed under Order 26 Rule 10 read with Section 151 of CPC, the Trial - 5 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 Court is directed to secure plaintiff 85 Nos.1 and 2 and respondent No.1(b) to submit their blood samples for conducting an avuncular DNA profiling. (viii) The Trial Court is directed to consider the material on record and allow the plaintiffs and the defendant to adduce their further evidence in view of the observations made by this Court and also consider the DNA report as well as the material on record in toto and dispose of the suit in accordance with law within a period of one year, since the suit is of the year 1997. (ix) The parties are directed to appear before the Trial Court on 05.07.2025 without expecting any notice from the Trial Court and the respective parties and counsel are directed to assist the Trial Court to dispose of the matter within the time bound period. No further time will be extended in future, since one year is given. (x) The Registry is directed to transmit the records forthwith to enable the Trial Court to take up the matter on 05.07.2025 and time for disposal starts from 05.07.2025. 3. In pursuance of the aforesaid judgment passed by this Court, the plaintiffs led further evidence by way of evidence of PW- 6 who was cross-examined by the petitioners-defendants. Thereafter, when the trial court wanted to take necessary steps to conduct DNA test as directed by this Court, the petitioners moved the instant application I.A.No.17 to recall PW-1 – Smt.Jayalakshmamma for further cross-examination. The said - 6 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 application was opposed by the plaintiffs, who interalia contended that PW-1 had been examined and cross-examined in the year 2006, about 19 years back, much prior to the dismissal of the suit and the order of remand and as such, in the absence of necessary averments made in the Affidavit filed in support of the application I.A.No.17, no valid or sufficient grounds had been made out by the petitioners to seek recall of PW-1. By the impugned order, the trial court proceeded to reject I.A.No.17 by holding as under:- “ORDER ON I.A. No.17 Advocate for defendant Nos.1(b) & 1(c) filed this IA under Order 18 Rule 17 r/w Section 151 CPC with a prayer to recall PW1 Smt. Jayalakshmamma and permit defendant Nos.1(b) & 1(c) for further cross-examination. 2. In the affidavit supporting the IA it is contended that plaintiffs filed this suit for partition which came to be dismissed on 22.09.2017, which was challenged before The Hon'ble High Court in RFA No.2523/2007. The Hon'ble High Court allowed the appeal and remanded the matter for fresh trial. The Hon'ble High Court recorded finding on point No.3 with regard to relationship, joint family, succession and execution of Will Ex.P4 and said Will has to be proved by plaintiffs by examining attesting witnesses. The Hon'ble High Court while considering point No.3 has directed the Trial Court to consider the material on record and allow plaintiffs & defendants to adduce their further evidence. Plaintiffs have - 7 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 to lead further evidence by producing material evidence in respect of relationship, parenthood, joint family status, joint family member and joint possession. If the IA is allowed, no injury or hardship will be caused to the other side; on the contrary, defendants would be put to hardship & injury. Hence prayed to allow the IA. 3. Advocate for plaintiffs filed objections to the IA contending that PW1 Smt. Jayalakshmamma is cross- examined on 13.06.2006. Thereafter, defendants never sought any recall or further cross-examination at any point of time during last 19 years. This application is filed only after the defendants obstructed DNA collection on 19.11.2025. The Hon'ble High Court of Karnataka in RFA No.2523/2007 dated 13.06.2025 and WP No.30888/2025 dated 27.10.2025 did not direct or even suggest that PW1 be recalled for further cross-examination. Order 18 Rule 17 CPC is very limited in scope and cannot be invoked to reopen an entire cross-examination or to fill up the lacuna. On 17.11.2025 this Court in faithful compliance with the directions of The Hon'ble High Court directed plaintiff Nos.1 & 2 and defendant No.1(b) to appear on 19.11.2025 for DNA sample collection and issued hand summons to laboratory technicians. On 19.11.2025 technicians of the laboratory appeared in the Court. But, defendant No.1(b) deliberately remained absent and his counsel openly refused to produce him in the Court on the ground that this Court has no power to issue such directions. Only after obstructing DNA procedure, defendants hurriedly filed this IA on 29.11.2025 which shows that this is - 8 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 a desperate & dishonest attempt to derail DNA test ordered by The Hon'ble High Court. 3(a). The Hon'ble High Court directed this Court to dispose the matter within time bound and further directed that no adjournments or delays will be tolerated. After remand of this case, defendants are permitted to file additional Written Statement. Thereafter, PW6 is examined in the month of July-2025. As per the order of The Hon'ble High Court in WP No.30888/2025 dated 27.10.2025 defendants are permitted to amend Written Statement to the limited extent of paragraph Nos.2(d) & 2(e). The Hon'ble High Court permitted further evidence only in respect of two paragraphs permitted to be amended and conducting DNA test which is the sole purpose of the remand. The Hon'ble High Court remanded the matter only for the purpose of fresh adjudication in view of allowing IA under Order 26 Rule 10 for DNA test. Therefore, this IA is completely outside the scope of remand. Now, defendants cannot expand, enlarge or manipulate the limited liberty granted in an attempt of violating the binding directions. Hence, prayed to reject the IA. 4. Heard arguments. Perused the material on record. 5.Now the points that arise for my consideration are : - 1. Whether IA No.17 filed by defendant Nos.1(b) & 1(c) under Order 18 Rule 17 r/w Section 151 CPC deserves to be allowed? 2. What Order? 6. My answer to the above points are as under: - 9 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 Point No.1 : In the Negative Point No.2 : As per the final order, for the following: - R E A S O N S 7. POINT No.1 : Plaintiffs filed this suit against defendant claiming 1/3rd share each in the suit schedule property. It is the case of the plaintiffs that plaintiff Nos.1 & 2 and defendant Anjanappa are children of Ammayamma. Defendant denied relationship with plaintiffs. After trial, this Court dismissed the suit, which was challenged before The Hon'ble High Court in RFA No.2523/2007. On 13.06.2025 The Hon'ble High Court allowed the appeal and remanded the matter for disposal within time limit of one year. The operative portion of judgment of The Hon'ble High Court reads thus: O R D E R (i) The appeal is allowed. (ii) The impugned judgment and decree dated 22.09.2007 passed by the Trial Court in O.S. No.6014/1997 is set aside. (iii) The matter is remitted back to the Trial Court for fresh consideration in view of the observations made by this Court. (iv) The application filed by the appellant under Order VI Rule 17 of CPC is allowed and the appellant is permitted to amend the plaint. (v) The Trial Court shall give an opportunity to the defendant to file additional statement in view of the allowing of the application filed under Order VI Rule 17 of CPC. - 10 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 (vi) The application filed under Order 26 Rule 10 read with Section 151 of CPC is allowed. (vii) In view of the allowing of the application filed under Order 26 Rule 10 read with Section 151 of CPC, the Trial Court is directed to secure plaintiff Nos.1 and 2 and respondent No.1(b) to submit their blood samples for conducting an avuncular DNA profiling. (viii) The Trial Court is directed to consider the material on record and allow the plaintiffs and the defendant to adduce their further evidence in view of the observations made by this Court and also consider the DNA report as well as the material on record in toto and dispose of the suit in accordance with law within a period of one year, since the suit is of the year 1997. (ix) The parties are directed to appear before the Trial Court on 05.07.2025 without expecting any notice from the Trial Court and the respective parties and counsel are directed to assist the Trial Court to dispose of the matter within the time bound period. No further time will be extended in future, since one year is given. (x) The Registry is directed to transmit the records forthwith to enable the Trial Court to take up the matter on 05.07.2025 and time for disposal starts from 05.07.2025. Thereafter, plaintiffs amended the plaint. Defendants filed additional Written Statement. Additional issues have been framed. Plaintiffs led further evidence by examining Smt. Maheshwari as PW6, who is fully cross-examined by defendants. Then, advocate for defendants filed IA 14 under Order 6 Rule 17 CPC for amendment of Written Statement, which came to be rejected by this Court, which was challenged before the Hon'ble High Court in W.P. No.30888/2025. The Hon'ble High Court partly allowed said Writ Petition. The operative portion of the order of Hon'ble High Court reads thus: - 11 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 ORDER The petition is allowed in part. 2. The order dated 24.09.2025 passed by the I Additional City Civil and Sessions Judge, Bengaluru in O.S. No.6014/1997 is hereby set aside and the application filed under Order 6 Rule 17 of CPC is consequently allowed insofar as only with regard to the amendment to the extent of paragraph Nos.2(d) and 2(e). 3. Parties are at liberty to lead further evidence. However, the plaintiffs or the defendants shall complete their evidence within a period of one month from the date of receipt of copy of this order. 4. Plaintiff Nos.1 and 2 and respondent No.1(b) shall be subject to submit their blood samples for conducting an avuncular DNA profiling as opined by this Court in Regular First Appeal without any further delay. 5. It is made clear that any unnecessary adjournments and delay caused by either of the parties shall be viewed seriously and the trial Court is at liberty to impose exemplary cost on either of the parties. In view of the order of Hon'ble High Court defendants amended their Written Statement. Advocate for plaintiffs submitted no further evidence. Hence, the matter is posted for defendants’ evidence. At this stage, advocate for defendants filed this IA. On 13.06.2006 PW1 Smt. Jayalakshmamma is examined and she is cross-examined by defendants. It is about 19 years have been lapsed. Now, advocate for defendants come up with this IA. 8. The Hon’ble Apex Court in the ruling reported in (2016) 11 Supreme Court Cases 296 (Ram Rati v. Mange - 12 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 Ram (Dead) Through Legal Representatives & Ors.), has held thus: 11. The respondent filed the application under Rule 17 read with Section 151 CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo moto or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. “No prejudice is caused to either party” is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground. 12. In Vadiraj Nagappa Vernekar V. Sharadchandra Prabhakar Gogate, this principle has been summarized at paras 25, 28 and 29: 25.In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. 28.The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in - 13 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. After remand of this matter, both parties are provided with ample opportunity to lead further evidence. Accordingly, plaintiffs examined PW6, who is fully cross-examined and on 25.07.2025 both advocates submitted as evidence closed. Thereafter, when this Court directed the parties to make themselves available before the Court to draw blood samples for DNA test in view of the order of Hon'ble High Court, advocate for defendants went on filing applications after applications and challenging the orders on the said IAs before the Hon'ble High Court. It is not the case of defendants that they are not provided with opportunity of cross-examining PW1 or leading further defence evidence. 9. As per the order of The Hon'ble High Court in W.P. No.30888/2025, after amendment of Written Statement, advocate for plaintiffs submitted he has no further evidence and the case is posted for defendants’ evidence. Now, defendants are at liberty to lead evidence to prove their amended Written Statement. Instead of leading their evidence on amended pleadings, they have filed this IA to recall PW1 who is examined about 19 years ago. 10. In view of directions of Hon'ble High Court in RFA No.2523/2007 and W.P. No.30888/2025 as stated above, on 17.11.2025 this Court directed plaintiffs and defendant No.1(b) to be present before the Court on 19.11.2025 to give blood samples for DNA test. Plaintiffs were present before - 14 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 the Court, but defendant No.1(b) not present and learned advocate for defendant No.1(b) submitted that this Court has no discretion / power to direct the parties to keep present. Hence, he did not keep his party present before the Court to give blood samples for DNA test in view of the orders of Hon'ble High Court. Thereafter when the case is posted for further defendants' evidence, advocate for defendants filed this IA. 11. Looking to the facts & circumstances of the case and in view of the directions of The Hon'ble High Court as stated above, this Court do not find any good grounds to recall PW1 who is examined about 19 years ago. Accordingly, I answer Point No.1 in the Negative. 12. POINT No.2 : In view of the aforesaid discussions, I proceed to pass the following : -10 O R D E R I.A. No.17 filed by defendant Nos.1(b) & 1(c) under Order 18 Rule 17 r/w Section 151 of CPC is rejected.” 4. As can be seen from the remand order passed by this Court in RFA No.2523/2007 and the impugned order passed by the trial court, after remand, the plaintiffs adduced further evidence of PW-6 who was cross-examined by the petitioners – defendants and neither valid nor sufficient grounds had been made out by the petitioners to seek recall of PW-1 after lapse of 19 years. In this - 15 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 context, it is necessary to extract the averments made by the petitioners in the Affidavit filed in support of I.A.No.17, which are as hereunder:- “ 2. I State that the above suit was set-down for plaintiffs evidence on 28.11.2025. The above suit filed by the plaintiffs for partition and separate possession of 1/3rd share in the suit schedule property has been dismissed by the Hon’ble Court dated: 22.09.2007. the unsuccessful plaintiffs have filed before the Hon’ble High Court of Karnataka. During the pendency of the RFA No.2523/2007, the plaintiffs have filed two applications viz., amendment of plaint under order VI Rule 17 CPC and also application for appointment of Commissioner for Scientists Investigation as required under order XXVI Rule 10(A) CPC. I state that after hearing the appeal in RFA No.2523/2007 and also considering the issues framed by the Hon’ble Court, the Hon’ble High Court has clearly recorded a finding on point No.3 with regard to relationship, joint family succession and execution of will at Ex.P4 and the said will has to be proved by the plaintiffs by examining the attested witnesses, the mater requires for reconsideration specifically at para 72 of the judgment of the Hon’ble Court of Karnataka in RFA No.2523/2007. The Hon’ble High Court of Karnataka while remained the First Appeal before the Hon’ble Court for reconsideration on point No.3, has specifically directed the Hon’ble court to consider the material on record and allow the plaintiffs and the defendants-ourselves to adduce their further evidence in - 16 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 view of the observations made. In that view of the matter, the plaintiffs have to lead further evidence by producing the material evidence on record in respect of proving the relationship of parenthood, joint family status, joint family status, joint family member an joint possession of plaintiffs and my father, Similarly, we obligated to further cross examine both the plaintiffs and their witnesses. In the circumstances, I have filed the accompanying application which may kindly be allowed as prayed for. If the application is allowed and the stage of the case is recalled and direct the 1st plaintiff-Jayalakshmamma to be subjected for further cross-examination as indicated by the Hon’ble High Court of Karnataka on point NO.3 in RFA No.2523/2007 dated: 13.06.2025 and we may be permitted to cross-examine PW-1-1st plaintiff- Jayalakshmamma, no injury or hardship would be caused to the other side. Whereas, it’s decline, would subject us to irretrievable injury and hardship as the suit schedule property is the immovable property over which we have acquired substantial right, title interest and lawful possession and enjoyment. Therefore, it is prayed that the accompanying application may kindly be allowed as prayed for, in the interest of justice and equity.” 5. As is clear from the averments made in the Affidavit filed in support of the application, except referring to the earlier proceedings including remand and the liberty granted in favour of the parties to adduce further evidence, there is absolutely no valid - 17 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 or sufficient grounds are made out by the petitioners to seek recalling of PW-1 after lapse of 19 years. It is also pertinent to note that while this Court remitting the matter back to the trial court by permitting the parties to adduce further evidence and directing conducting of DNA test, no request for permission to recall PW-1 for further cross-examination was made by the petitioners. These facts and circumstances have been taken note of by the trial court, which took into account that the suit was of the year 1997 and after lapse of almost 29 years, the petitioners would not be entitled to any indulgence by seeking recalling of PW-1 for further cross- examination without assigning any reasons, especially when this Court has directed expeditious disposal of the suit within a period of one year by directing both the parties to co-operate with the trial court for expeditious disposal of the suit. 6. Under these circumstances, I am of the considered opinion that having regard to the aforesaid facts and circumstances obtaining in the instant case, the trial court was fully justified in declining to recall PW-1 for further cross-examination as sought for by the petitioner, by passing the impugned order, which cannot be said to suffer from any illegality or infirmity nor the same said to - 18 - HC-KAR NC: 2026:KHC:965 WP No. 39171 of 2025 have occasioned any prejudice or failure of justice warranting interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohamed Ali Vs. V. Jaya & others – (2022) 10 SCC 477. 7. Accordingly, I do not find any merit in the petition and the same is hereby dismissed. Sd/- (S.R.KRISHNA KUMAR) JUDGE Srl.