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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 31^ST DAY OF MARCH, 2021

BEFORE

THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO.6479 OF 2021(GM-CPC)

BETWEEN:

1. SMT. MANGALA GOWRI,

W/O D PRAKASH,

AGED ABOUT 46 YEARS,

2. SRI. D PRAKASH,

S/O LATE K DASAIAH,

AGED ABOUT 50 YEARS,

BOTH ARE R/AT D.NO.92, H BLOCK,

ASHOK NAGARA,

POLICE QUARTERS, Y.G. PALYA,

NEELASANDRA MAIN ROAD,

BENGALURU - 560 047.

...PETITIONERS

(BY SRI. MOHAN KUMAR T, ADVOCATE)

AND:

SMT. SHUBHALAKSHMI DEVI,

W/O SRI. SHIVANNA,

AGED ABOUT 60 YEARS,

R/A NO.10 POLICE COLONY,

NILANJANA NILAYA,

THOTHADA NANJAPPA ROAD,

BEHIND MAGADI ROAD,

POLICE STATION,

MAGADI MAIN ROAD,

BENGALURU - 560 023.

& RESPONDENT

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF

THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

ORDER DATED 23.02.2021 ON IA-10 IN O.S.NO.1861/2013

ON THE FILE OF XXIV ADDL CITY CIVIL AND SESSIONS

JUDGE,

BANGALORE CITY (CCH-6)

VIDE ANNX-G

BY

ALLOWING THE ABOVE W.P. PETITION AND CONSEQUENTLY

ALLOW IA NO.10.

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THIS

PETITION

COMING

ON

FOR

PRELIMINARY

HEARING THIS DAY THROUGH PHYSICAL HEARING, THE

COURT MADE THE FOLLOWING:-

ORDER

Petitioners being the defendants in an injunctive suit

in O.S.no.1861/2013 are knocking at the doors of Writ

Court for assailing the order dated 23.02.2021 a copy

whereof is at Annexure-G whereby the learned 24^th

Additional City Civil (CCH-6), Bengaluru, having rejected

his application in IA No.10 filed under Section 151 of CPC,

1908 has declined to direct the respondent-plaintiff to

depose as a witness so that he can subject him to cross-

examination, after eschewing the deposition of her

husband.

2.

Having heard the learned counsel for the

parties and having perused the petition papers, this Court

declines to grant indulgence in the matter inasmuch as,

regard being had to nature of the suit, it cannot be readily

agreed that the PW1 who has deposed on behalf of the

respondent-plaintiff does not have personal knowledge of

the case especially when he admittedly happens to be non

other than the spouse of the plaintiff; in Indian socio-

economic set up, spouses will be knowing such things

unless they are estranged, which is not the case here.

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3.

The above apart, it is for the parties to decide

which witness is to be examined and what documents to

be produced for generating legal evidence on record in

support of their respective cases; ordinarily, it is not open

to a litigant to insist upon his opponent to enter the

witness box and depose as a witness; if a third person has

deposed as a witness, it is always open to the other party

to show that such person did not have personal knowledge

of the case and therefore, his deposition is not worthy of

credence; this can be done at the hearing of the suit.

4.

Learned trial judge at paras 8 & 9 of the

impugned order has in so many words stated that the

husband of the plaintiff is examined as her Power of

Attorney Holder and in his deposition, 16 documents came

to be produced & marked as Exs. P1 to P16; the necessity

for the husband to depose as PW1 arose because of ill-

health of the plaintiff that rendered her immobile; after all,

the parties should enter the witness box to depose in

support of their version, is not a Thumb Rule; disease &

disablement strike the litigants as they do to others; this

cannot be lost sight off by any sensible judge; he has

exercised the discretion & wisdom in accordance with rules

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of reason & justice; therefore, what the learned trial judge

done is perfectly justified to say the least.

5.

However, there is some force in the submission

of learned counsel for the petitioners that the observations

in the impugned order should not be held against them

when the suit is heard after the trial is over; this is an

aspect of the matter which the learned trial judge has to

bear in mind when hearing the arguments.

In

the

above

circumstances

and

wit