IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.2112 OF 2022 (GM-CPC)

BETWEEN:

SRI VENKAPPA GOWDA AGED ABOUT 73 YEARS, S/O AYYANNA GOWDA, REPRESENTED BY HIS GENERAL POWER OF ATTORNEY HOLDER, YASHODHARA GOWDA, AGED ABOUT 44 YEARS, S/O VENKAPPA GOWDA, R/AT KODDOLU HOUSE, UJIRE VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA-574240 …PETITIONER (BY SRI. VIVEK B.N., ADVOCATE FOR SRI ABHINAV RAMANAND A., ADVOCATE)

AND:

SRI FELIX RODRIGUES S/O LAWRENCE RODRIGUES, SINCE DECEASED, 1. SRI FRANCIS RODRIGUES, AGED ABOUT 64 YEARS, S/O LAWRENCE RODRIGUES, R/.AT NELLIPADAVU, UJJIRE VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA-574240

2 . SRI JOKIM RODRIGUES AGED ABOUT 62 YEARS, S/O LAWRENCE RODRIGUES, R/.AT NELLIPADAVU, UJJIRE VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA-574240

3 . SRI DEVAPPA GOWDA AGED ABOUT 47 YEARS, S/O KARIYAPPA GOWDA, R/AT SHIVAKRIPA COMPOUND, SHANTHINAGARA, UJIRE VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA-574240.

…RESPONDENTS (BY SRI. A.KESHAVA BHAT, ADVOCATE FOR R-3; R1 AND R2 ARE SERVED AND UNREPRESENTED)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.8.12.2021 PASSED BY THE ADDL CIVIL JUDGE AND JMFC AT BELTHANGADY DAKSHINA KANNADA IN O.S.NO.20/2012 AT ANNEXURE-G TO THE WRIT PETITION AND ALLOW THE INTERLOCUTORY APPLICATION NUMBER XIII DTD.28.9.2021 FILED BY PETITIONER IN O.S.NO.20/2012 AT ANENXURE-D TO THE W.P. BY ALLOWING THE PRESENT PETITION.

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO

CAV ORDER

1. The present writ petition is filed seeking to quash the order dated 08.12.2021 in O.S.No.20/2012, on the file of the Addl. Civil Judge and JMFC at Belthangady, Dakshina Kannada (‘the Trial Court’ for short) and allow I.A.No.XIII filed under Order XVI Rule 1(3) and section

151 of the CPC.

2. The petitioner herein is the plaintiff before the Trial Court and the respondents herein are the defendants before the Trial Court.

3. The brief facts of the case are that:-

In the affidavit filed in support of I.A.No.XIII, the G.P.A.Holder of the plaintiff averred that defendant No.1 died during the pendency of the suit, and being unmarried, was survived only by his brothers, namely Francis Rodrigues and Jokim Rodrigues, who were brought on record as defendant Nos.1(a) and 1(b). Defendant No.1(a) entered appearance and adopted the written statement earlier filed by the deceased defendant No.1. It is further stated that defendant No.1(a) is fully aware of all facts relating to the suit schedule property and that the plaintiff’s father seeks a declaration that he has perfected his right over the said property by adverse possession. It was urged that the evidence of defendant No.1(a) is essential for establishing the plaintiff’s claim and hence, the application ought to be allowed.

4. On the other hand, the defendants opposing the application, contended that no valid grounds have been made out, and that it is a mere attempt to delay disposal of the suit, thereby seeking its rejection. Similarly, it was further contended that defendant No.1(a) has not in fact adopted the written statement of the deceased defendant No.1, and that he was not originally a party to the suit, therefore, the question of his cross-examination does not arise. On such basis, counsel for defendant No.1(a) sought dismissal of the application. Accordingly, for disposal of I.A.No.XIII, the following points were framed for consideration:

(i) whether the plaintiff has made out grounds to compel or summon the opposite party to depose as a witness in the suit, and (ii) what order is to be passed.

5. The Trial Court on I.A.No.XIII held that the object of Order XVI Rule 1(2) CPC is that a party seeking to summon a witness must disclose the purpose, enabling the Court to decide whether such eviden