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2025 Supreme(Kar) 983
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M.G.S. KAMAL, J.
M/s Abhishek Developers, A Partnership Firm - Appellant
Versus
Smt. Gowramma, W/o Late Marigowda - Respondents
WP No. 24063 of 2024
Decided on : 12-09-2025
For the Appellant :SRI. VIJAYA KUMAR K., ADVOCATE)
For the Respondent:SRI. A. SAMPATH., ADVOCATE
The court upheld the importance of allowing defendants to recall and reopen cross-examination to ensure fair trial, despite procedural timelines or prior judgments in clubbed cases.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 151 and Order 18 Rule 17 - Writ petition challenging rejection of applications to recall and reopen cross-examination of plaintiff witness - The trial court's refusal based on case status posted for judgment was deemed erroneous; petitioners allowed to cross-examine the witness and lead further evidence. The Court emphasized the interest of justice and proceedings related to clubbed cases. (Paras 1-4)
Facts of the case:
The petitioners, defendants in two clubbed suits about property matters, challenged an order rejecting their applications for recalling and reopening cross-examination, claiming it was erroneous after prior allowances in related matters. (Para 2)
Findings of Court:
Petitioners’ applications under CPC were allowed, enabling them to cross-examine the witness and lead defense evidence, recognizing their past contributions and related proceedings in analogously tried cases. (Paras 6-7)
Issues: Whether declining the applications was justifiable considering the procedural history and principles of fair trial. (Para 5)
Ratio Decidendi: The Court found that the trial court erred in denying the applications solely based on the case being posted for judgment, emphasizing the interconnectedness of clubbed cases and the need for thorough examination. (Para 6)
Result: Writ petition allowed; impugned order set aside.
ORDER :
M.G.S. KAMAL, J.
This petition is filed by defendants 4 and 5 in O.S.No.7646/2008 aggrieved by order dated 22.04.2024 rejecting their applications filed under Section 151 CPC and Order XVIII Rule 17 CPC to recall, reopen cross examination of PW.1 and permission to lead defence evidence as per Annexures E, F and G respectively.
2. Learned counsel for the petitioners submits that along with the above suit, another suit in O.S.No.9300/2008 is clubbed and being tried together which also pertain to same property which is subject matter of the present petition. The petitioners herein are defendants 11 and 12 in the said suit. It is submitted that there are 195 defendants who are purchasers of the flats forming part of Apartment complex constructed on the subject property. A similar application had been filed in the aforesaid connected suit in O.S.No.9300/2008 which was also rejected by the trial Court. As against which the petitioners herein preferred writ petition in W.P.No.18227/2024 . This Court by order dated 08.01.2025 allowed the said writ petition and consequently allowed the application filed by the petitioners herein permitted them to cross examine PW1 on payment of cost of Rs.10,000/-.
3. Learned counsel for petitioners submits pursuant to the said order passed by this Court petitioners herein (who are defendants 11 and 12 in the said suit), have cross examined plaintiff in said suit in O.S.No.9300/2008 and even led their defence evidence and matter is set down for cross examination of petitioners witnesses. Therefore he submits that the reasons assigned by the trial Court that since the matter was posted for Judgment the applications filed by the petitioners cannot be allowed is erroneous and requires interference at the hands of this Court.
4. Learned counsel for respondents/plaintiffs on the other hand submits that petitioners had filed written statement on 16.01.2011, evidence was closed in the year 2016 and they having kept quiet till the matter was posted for Judgment cannot be permitted to reopen the case to cross examine the plaintiff and lead defence evidence as same would amount to abuse of the process of law besides wasting precious judicial time. Hence, he submits applications do not merit any consideration and seeks for dismissal of the same.
5. Heard and perused the records.
6. There is no dispute of the fact that suit in O.S.No.9300/2008 is being tried analogously with suit in O.S.7646/2008 of which the present petition arises for consideration of the impugned order. Though the said matters were earlier set down for Judgment, the petitioners herein had admittedly filed similar applications in both the suits to reopen the matter for cross examination of plaintiff and lead defence evidence which came to be dismissed. There is also no dispute of the fact that as against the order rejecting the application filed in O.S.No.9300/2008, petitioners preferred writ petition in W.P.No.18227/2024 which came to be allowed by order dated 08.01.2025 on payment of cost of Rs.10,000/-. Petitioners were permitted to proceed with cross examination of PW.1. It is submitted that apart they have already cross examined PW.1 and petitioners have also led defence evidence and that the matter is set down for cross examination. As such the ground for declining the prayer sought for in the interim applications are not tenable.
7. Since both the suits O.S.No.9300/2008 and O.S.No.7646/2008 are clubbed and being tried together and considering the number of defendants involved in the suits and also considering the fact that petitioners herein are the purchasers of flats forming part of a apartment complex constructed on the larger extent of property, in the interest of justice, this Court is of the considered view impugned order is liable to be set aside and the interim applications filed under Section 151 of CPC and application under Order XVIII Rule 7 CPC to recall, reopen and permission to lead further evidence as per Annexures E, F and
