The defendant No.1 in O.S.No.7394/2015 pending

trial before the XVIII Additional City Civil and Sessions

Judge, Bengaluru has filed this writ petition, challenging

the order dated 25.05.2022, by which, an application filed

by her to recall PW.1 for cross-examination was rejected.

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2.

A suit in O.S.No.7394/2015 was filed for

declaration of title and for perpetual injunction. The said

suit was contested by the defendant No.2 who filed her

written statement. The defendant No.1 did not file any

written statement. Based on the issues framed, the

plaintiffs adduced evidence on 24.08.2021. The case was

set down for cross-examination. However for nearly four

days, the defendant No.1 did not appear. Hence, the

cross-examination

of

PW.1

was

taken

as

nil

on

08.11.2021. Thereafter, the defendant No.1 filed yet

another

application

for

recalling

PW.1

for

cross-

examination, which was rejected by the trial Court on the

ground that the defendant No.1 was attempting to unduly

delay the proceedings.

3.

Being aggrieved by the said order, the

defendant No.1 has challenged the order.

4.

Learned counsel for defendant No.1 submits

that the defendant No.1 could not cross-examine PW.1 in

view of Covid-19 pandemic and therefore, on 08.11.2021,

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the cross-examination of PW.1 was taken as nil. He

submits that thereafter, an application was filed for

recalling PW.1 on 07.12.2021 which was allowed and the

suit was adjourned to 21.02.2022. On 21.02.2022, the

defendants were absent and hence, the case was posted

for arguments. The defendant No.1 filed I.A.Nos.8 and 9 to

recall the stage of the suit and to recall PW.1 for cross-

examination, which were rejected by the Trial Court with

cost of Rs.1,000/-.

5.

The defendant No.1 being aggrieved by the

said order has filed this writ petition.

6.

The

learned

counsel

for

defendant

No.1

submitted that since the plaintiffs have sought for

substantive relief of declaration of title, denying an

opportunity

to

cross-examine

PW.1

would

act

disadvantageous to the defendants and therefore, prays

for permission to cross-examine the PW.1.

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7.

Learned counsel for the plaintiffs submitted

that the defendants have been unnecessarily delaying the

proceedings in the suit on one or the other ground. He

submits that the defendant No.2 was the mother of

defendant No.1 and have been playing truant with the

Court in not participating in the proceedings.

8.

The order passed by the trial Court discloses

that

despite

granting

adequate

opportunity

to

the

defendants to cross-examine PW.1, they did not avail the

opportunity. Therefore, the Court was justified in closing

the cross-examination of PW.1 on 08.11.2021. Following

thereafter, applications were filed on 07.12.2021 for

recalling PW.1 for cross-examination, which was allowed

on payment of Cost of Rs.100/-. The defendants again did

not participate in the proceedings, which resulted in the

Court holding that the defendants had nothing to cross-

examine PW.1. Long thereafter, the present applications

are filed. Though the conduct of the defendants is not

above board but speaks of deliberate intention to delay the

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proceedings but yet, the defendants cannot go unheard

having regard to the fact that the plaintiff had sought for

the relief of declaration and injunction.

9.

In that view of the matter, the defendants are

entitled to be given an opportunity to cross-examine PW.1,

subject

however

to

certain

conditions.

Hence,

the

following:

ORDER

The writ petition is allowed.

The impugned order passed by the trial

Court is set aside. The trial Court is directed to

permit the defendants to cross-examine PW.1

subject to payment of cost of Rs.10,000/-

(Rupees Ten Thousand Only) payable to the

plaintiffs on the next date of hearing.

PW.1

shall

remain

present

on

05.08.2022, when the case is listed before the

trial Court and he shall be cross-examined on

the same day without fail.

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If the cost is not paid or if PW.1 is not

cross-examined on the said date, the trial

Court may proceed with