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2019 DIGILAW 1931 (KAR)

Sushila v. Rajeshri

2019-09-03

P.G.M.PATIL, S.N.SATYANARAYANA

body2019
JUDGMENT : S.N. SATYANARAYANA, J. 1. The sole defendant in O.S.Nos.94 and 95 of 2014 on the file of the II Additional Senior Civil Judge, Hubballi has come up in these two appeals impugning the identical judgments dated 30.10.2018 and 31.10.2018 passed in these two appeals on different dates. 2. Though the judgments are passed on different dates separately, the sum and substance of the pleadings, evidence and as well as finding on the issues framed in both the suits are one and the same in both the judgments. Admittedly, the suits in O.S.Nos.94 and 95 of 2014 are filed by the son-in-law and daughter of the sole defendant in the said suits. Besides these two suits, it is stated that there was one more suit filed by the grand daughter of appellant herein in O.S.No.96/2014 on the file of the II Additional Senior Civil Judge, Hubballi. All these three suits are for recovery of money that was alleged to be paid by the plaintiff in each suit to the common defendant in all three suits, viz. the appellant herein. It is stated that one of the property standing in the name of the appellant herein was subject matter of attachment and the same was brought for sale in a proceeding before the Debt Recovery Tribunal. It is in this background, the plaintiff in these three suits said to have helped the sole defendant, the appellant herein who is none other than the mother, mother-in-law and grand daughter of the plaintiff in these three suits. 3. The learned counsel for the appellant would bring to the notice of this Court that, in all these three suits, identical issues were framed where the burden to prove the defence raised by the sole defendant was required to be considered by permitting the defendant to adduce evidence at first instance. It is in this background, the appellant who is defendant in the Court below said to have adduced evidence as D.W.1. However, it is seen that, she did not tender herself for cross-examination for long time. Hence, her evidence was struck down and the matter was posted for arguments, which was challenged before this Court in W.P.No.102591/2016 sofar as O.S.No.94/2014 is concerned and two other writ petitions in another two matters on similar grounds. However, it is seen that, she did not tender herself for cross-examination for long time. Hence, her evidence was struck down and the matter was posted for arguments, which was challenged before this Court in W.P.No.102591/2016 sofar as O.S.No.94/2014 is concerned and two other writ petitions in another two matters on similar grounds. It is stated that, interim stay of further proceedings in O.S.Nos.94, 95 and 96 of 2014 was granted by the learned single Judge of this Court in the aforesaid writ petitions and that interim order was continued for nearly two years. It is stated that, subsequently on the basis of the General Circular No.7/2018 dated 06.08.2018 issued by the Registrar, High Court of Karnataka, which was subsequent to the judgment rendered by the Hon'ble Apex Court in a Special Leave Petition where the Apex Court observed that wherever the interim order is not extended beyond six months, the Courts where the original proceedings are pending shall proceed with the matters. It is on the basis of the aforesaid observation of the Apex Court, the said general Circular was issued. Based on that, it is stated that the matter was taken up for consideration and disposed of without providing sufficient opportunity to the defendant to submit herself for cross-examination at first instance and not providing sufficient opportunity for cross-examination of P.W.1 in each case. 4. In any event, it is clearly seen that though an application was filed by the defendant in all the three suits, the same are not considered while dismissing the application filed by the defendant on 30.10.2018 and 31.10.2018. It is stated that, besides these two appeals, there is one more appeal which is pending with reference to O.S.No.96/2014 which was decided along with O.S.Nos.94 and 95 of 2014. 5. After hearing the learned counsel for the appellant and respondent in these two appeals, it is clearly seen that, sufficient opportunity was not provided to the defendant to establish the defence raised by her and to submit herself for cross-examination at first instance and also to cross-examine P.W.1 in each suit. 5. After hearing the learned counsel for the appellant and respondent in these two appeals, it is clearly seen that, sufficient opportunity was not provided to the defendant to establish the defence raised by her and to submit herself for cross-examination at first instance and also to cross-examine P.W.1 in each suit. It is in this background, this Court is of the considered opinion that three appeals are required to be allowed and the original suits should be restored to file and remanded to the trial Court where sufficient opportunity should be given to the defendant to submit herself for cross-examination to ensure that her evidence is not expunged and the same is taken on record for consideration. 6. Accordingly, these two appeals are allowed. The judgments dated 30.10.2018 and 31.10.2018 passed in O.S.Nos.94 and 95 of 2014 are hereby set aside and the suits are restored to file for giving an opportunity to the sole defendant in the said suits to tender herself for cross-examination. 7. It is made clear that the process of cross-examination of D.W.1 and cross-examination of the plaintiff witness, if necessary by the defendant counsel shall be complied within four months from the date of remand and the entire suits should be disposed of within six months from the date of remand. 8. The appellant herein is permitted to seek disposal of the regular appeal which is pending in the Court of I Additional District and Sessions Judge, Dharwad sitting at Hubballi where on the basis of the pecuniary jurisdiction one of the appeal was filed in the said Court. The said Court shall dispose of the said appeal also on the same basis and remand the matter for fresh consideration to the trial Court. 9. It is made clear that both the parties shall appear before the trial Court on 23.09.2019 to prevent any further delay in disposal of the suits on merit. 10. Further, the appellant herein shall within one week from the date of securing the certified copy of this order shall make necessary application before the I Additional District and Sessions Judge, Dharwad sitting at Hubballi in R.A.No.7/2019 and shall get the same disposed of on the same line and ensure that the said suit is also taken up for consideration along with these two suits which are now restored for reconsideration. 11. 11. In view of the order of remand being passed, the appellant shall be entitled to refund of the Court fee in accordance with the provisions of the Karnataka Court Fee and Suits Valuation Act, 1958.