Sri Suresh G v. Sri Gangadhar

((((((((((((HC-KAR, NC:(2026:KHC:41907( W.P.(No.21393/2022( ( ,,,,,,,,,, , CNR:(KAHC010490302022( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU(

THDATED(THIS(THE(7 (DAY(OF(AUGUST,(2026(

BEFORE(

THE(HON'BLE(MR.(JUSTICE(VIJAYKUMAR(A.(PATIL(

WRIT(PETITION(NO.21393/2022((GM-CPC)(

(

BETWEEN:(( ( SRI.,SURESH,.G, S/O,GANGADHAR, AGED,ABOUT,42,YEARS, R/AT,NO.45/36-2, 10TH,CROSS,,BHOVIPALYA, MAHALAKSHMIPURAM, BANGALORE-560086., …PETITIONER,

(BY,SRI.,KRISHNA,MURTHY,N,,ADV.,),

AND:(

(

1., SRI.,GANGADHAR, S/O,LATE,MARI,RUDRAIAH, Digitallytisigned AGED,ABOUT,66,YEARS., by0RUPA0V , Location: 2., SRI.,SHANKAR,.G, HIGH0COURT , S/O,GANGADHAR, OF , AGED,ABOUT,40,YEARS., KARNATAKA , ,

3., SMT.,SARASWATHI, D/O,GANGADHAR, AGED,ABOUT,44,YEARS., , ALL,ARE,R/AT,NO.45/36-2, 10TH,CROSS,,BHOVIPALYA, MAHALAKSHMIPURAM, BANGALORE-560086., , , …RESPONDENTS, ((((((((((((HC-KAR, NC:(2026:KHC:41907( W.P.(No.21393/2022( ( ,,,,,,,,,, , CNR:(KAHC010490302022( ( ( (BY,SRI.,LOKESHA,A.C.,ADV.,,, ,,,,,,SRI.,SHRIDHARA,K,,ADV.,,FOR,R1,TO,R3), , , THIS, W.P., IS, FILED, UNDER, ARTICLE, 226, AND, 227, OF, THE, CONSTITUTION, OF, INDIA,, PRAYING, TO, CALLING, FOR, RECORDS,IN,OS.NO.3964/2019,PENDING,ON,THE,FILE,OF,THE, XLIV, ADDL., CITY, CIVIL, AND, SESSIONS, JUDGE,, AT, BANGALORE,,CCH,NO.27.,,SET,ASIDE,THE,ORDER,PASSED,IN, OS.NO.3964/2019, DATED, 29.09.2022, PENDING, ON, THE, FILE, OF, THE, XLIV, ADDL., CITY, CIVIL, AND, SESSIONS, JUDGE,, AT, BANGALORE,, CCH, NO.27, ON, IA, NO.6,, 7, AND, 8, AS, PER, ANNEXURE-A, PASSED, BY, THE, XLIV, ADDL., CITY, CIVIL, AND, SESSIONS,JUDGE,AT,BANGALORE,&,ETC., , , THIS,PETITION,,COMING,ON,FOR,PRELIMINARY,HEARING, IN, 'B', GROUP,, THIS, DAY,, ORDER, WAS, MADE, THEREIN, AS, UNDER:, , CORAM:(HON'BLE(MR.(JUSTICE(VIJAYKUMAR(A.(PATIL( , ORAL(ORDER( ( , This, petition, is, filed, challenging, the, order, dated,

29.09.2022,passed,on,IA.Nos.6,to,8,in,OS.No.3964/2019, by, the, XLIV, Additional, City, Civil, and, Sessions, Judge,, Bengaluru,,CCH-27,,(for,short,'the,trial,Court')., ,

¶2Heard, Sri.Krishna, Murthy, N.,, learned, counsel, appearing, for, the, petitioner,, Sri.Lokesha, A.C.,, learned, counsel, for, Sri.Shridhara, K.,, learned, counsel, for, the, respondents, and, meticulously, perused, the, material, available,on,record.,

¶3The petitioner and another filed OS.No.3964/2019 seeking the relief of partition and separate possession, as well as a declaration that the gift deed dated 02.04.2018 is not binding on the plaintiffs, along with other consequential reliefs. In the said suit, the respondents filed their detailed written statements. Plaintiff No.1 examined himself as PW1 and thereafter filed three applications, i.e. IA.Nos.6 and 7 under Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') seeking recall of the order dated 27.06.2022, reopening of the case and permission to lead further evidence, and IA.No.8 under Order XVI Rule 1-A read with Section 151 of the CPC, seeking permission to lead further evidence by examining Sri.R.D.Jagadish, proprietor of R.D. Construction by recalling the order dated 27.06.2022, whereby the evidence of the plaintiff had been closed. The trial Court, under the impugned order dismissed all the three applications by recording the reasons that there was

no pleading to support the applications and that Ex.P15 appeared to be a created document.

¶4It is required to be noticed that plaintiff No.1 filed the said applications immediately after the conclusion of his examination-in-chief and cross-examination, when the matter was posted for the defendants' evidence and even before defendants started their evidence. It is further to be noticed that plaintiff No.1 intends to examine Sri.R.D.Jagadish, who claims to be the proprietor of R.D. Construction, to substantiate his contention pleaded in paragraph No.12 of the plaint that he had put up construction over the suit schedule property. The said assertion can be found in paragraph No.12 of the plaint that he has put up the construction. However, the said pleading is silent as to which contractor has put up the construction. It is also required to be noticed that plaintiff No.1 has already produced Ex.P15, the work order issued

to the said proprietor, which was marked during his examination-in-chief.

¶5Taking note of the same, I am of the view that the trial Court has committed a grave error in recording the finding that no foundation was laid for examining the said witness and further the trial Court has jumped to the conclusion that Ex.P15 appeared to be a forged document. The aforesaid finding at the stage of examining the witness is improper. Accordingly, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned order dated 29.09.2022 passed in OS.No.3964/2019 by the XLIV Additional City Civil and Sessions Judge, Bengaluru, CCH-27, is hereby set aside. Consequently, IA.Nos.6 to 8 filed by plaintiff No.1 are allowed.

iii. The plaintiff No.1 shall keep the said witness present before the Court on the next date of hearing or the date fixed by the trial Court and examine as witness. No order as to costs.

Sd/- (VIJAYKUMAR A. PATIL) JUDGE

ABK List No.: 1 Sl No.: 36