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2010 DIGILAW 597 (KAR)

ELLAMMA alias YELLAMMA v. P. VENKATESHAPPA

2010-04-23

B.MANOHAR

body2010
ORDER 1. Petitioner is the plaintiff in O.S. No. 273 of 2002 on the file of the Principal Civil Judge (Junior Division), Malur. Being aggrieved by the order dated 5-3-2009 made on I.A. No.9 filed under Order 18, Rule 17 of the Civil Procedure Code, 1908 seeking permission to cross-examine D.W. 1, petitioner has filed this writ petition. 2. The petitioner filed a suit in O.S. No. 273 of 2002 seeking for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. Pursuant to the notice issued by Civil Judge (Senior Division), Malur, the first defendant filed written statement and denied the plaint averments. On the basis of the pleadings, necessary issues have been framed and the trial has been commenced. The plaintiff examined herself through her power of attorney holder and he was duly cross-examined by the defendants. The plaintiff examined the D.W. 1 in part on 27-8-2008 and the matter was adjourned to 5-9-2008 for further cross-examination of D.W. 1. On that day, neither the plaintiff nor his Advocate was present before the Court and the matter was adjourned to 24-9-2008 for further evidence. On 24-9-2008, the plaintiff filed an application I.A. No. 9 under Order 18, Rule 17 of CPC seeking permission to cross-examine D.W. 1. On that day, the matter was adjourned to enable the first defendant to file objections to the said application. The defendant filed objections to the said application on 30-9-2008. Arguments were heard on I.A. No.9 on 17-10-2008. However, an order was pronounced on 5-3-2009 rejecting the application filed by the plaintiff on the ground that though sufficient opportunity was granted to the plaintiff, the same was not made use of by the plaintiff. Being aggrieved by the order dated 5-3-2009 made on I.A. No. 9 the plaintiff filed the present writ petition. 3. Learned Counsel for the petitioner contended that the plaintiff had partly examined D.W. 1 on 27-8-2008 and the suit was adjourned to 5-9-2008 for further cross-examination of D.W. 1. On that day, the petitioner/plaintiff was absent. However, the Court adjourned the matter to 24-9-2008 for further evidence. 3. Learned Counsel for the petitioner contended that the plaintiff had partly examined D.W. 1 on 27-8-2008 and the suit was adjourned to 5-9-2008 for further cross-examination of D.W. 1. On that day, the petitioner/plaintiff was absent. However, the Court adjourned the matter to 24-9-2008 for further evidence. On 24-9-2008, the plaintiff filed an application under Order 18, Rule 17 of CPC seeking permission to cross-examine D.W. 1 inter alia contending that due to the ill-health of his Advocate, they could not be present on 5-9-2008 when the case was taken up for cross-examination of D.W. 1. The defendant filed objections to the said application. Without considering the case pleaded by the plaintiff, the Trial Court rejected the said application, which is contrary to law. 4. Learned Counsel appearing for the respondents contended that there is no infirmity or irregularity in the order passed by the Court below and also contended that neither the plaintiff nor his Advocate was present before the Court on 5-9-2008 when the case was called and hence sought for dismissal of the writ petition. 5. I have carefully gone through the arguments addressed by the learned Counsel for both the parties and perused the order dated 5-32009 and also the order sheet. 6. The suit was posted for cross-examination of D.W. 1 on 27-8-2008, on that day, the defendant 1 was partly cross-examined and the suit was adjourned to 5-9-2008. On that day, neither the plaintiff nor his Advocate was present and the case was adjourned to 24-9-2008 for further evidence. On 24-9-2008, the plaintiff filed an application I.A. No. 9 under Order 18, Rule 17 of CPC. As could be seen from the order sheet, D.W. 1 was not discharged from cross-examination and hence the plaintiff need not file an application under Order 18, Rule 17 of CPC. Subsequently, the said application was rejected on the ground that though the plaintiff was granted sufficient time, he has not crossexamined D.W. 1. As per the order sheet produced, it is seen that the plaintiff was absent only on 5-9-2008 due to his ill-health. The case was not dragged on at his instance. If one more opportunity is given to the petitioner, the respondents will not be put to any hardship. The inconvenience caused can be compensated by imposing cost. 7. As per the order sheet produced, it is seen that the plaintiff was absent only on 5-9-2008 due to his ill-health. The case was not dragged on at his instance. If one more opportunity is given to the petitioner, the respondents will not be put to any hardship. The inconvenience caused can be compensated by imposing cost. 7. This Hon'ble Court while entertaining the writ petition has issued notice to the respondents and stayed the proceedings subject to plaintiff depositing Rs. 2,000/- towards cost, within a week and the same is payable to the defendants depending upon the final order to be passed. Pursuant to the said order, plaintiff had deposited Rs. 2,000/- before this Hon'ble Court. As could be seen from the order sheet, at no point of time, D.W. 1 was discharged from the cross-examination, but on the application filed by the plaintiff, the Court has passed the impugned order, which is contrary to law. 8. In the circumstances, the writ petition is allowed and the order dated 5-3-2009 is set aside. The Trial Court is directed to give one more opportunity to the plaintiff to cross-examine D.W. 1 and to dispose of the suit as expeditiously as possible. Rs. 2,000/- deposited before this Court may be paid to the first defendant, for the inconvenience caused to him.