IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 19749 OF 2019 (GM-CPC)

BETWEEN:

ANTONY MARIAN FERNANDES S/O LATE PETER FERNANDES, AGED ABOUT 73 YEARS, R/AT D.NO.17-8-500, THE MODERN CEMENT CONCRETE WORKS, SILVA ROAD, MANGALORE-576 001.

…PETITIONER (BY SRI. VARUN SAI.Y., ADVOCATE FOR SRI. SACHIN.B.S., ADVOCATE)

AND:

1. RAYMOND FERNANDES S/O MR. PETER FERNANDES, AGED ABOUT 55 YEARS, R/AT D.NO.17-8-500, THE MODERN CEMENT CONCRETE WORKS, SILVA ROAD, MANGALORE-576 001.

2. MRS. BESSY PINTO W/O. LATE BASIL ANTONY PINTO, C/O.DENZIL PINTO, AGED ABOUT 75 YEARS, P.O BOX-60859, DUBAI UAE. 3. MRS. FELCITA BAPTISTA W/O. ROBERT BAPTISTA, AGED ABOUT 75 YEARS, R/AT NO.3, MAX BLUE APARTMENTS, ANDHERI KURLA ROAD, MAROL, MUMBAI-400 059.

4. MRS. CRECILDA CHAVAN W/O S.K.CHAVAN, AGED ABOUT 68 YEARS, TIGER STEEL ENGINEERING, P.O.BOX 6169, SHARJAH U.A.E.

5. MR. AVITUS FERNANDES S/O MR. PETER FERNANDES, AGED ABOUT 70 YEARS, WIEFELDICKER, STR:19, 42699, SOLEGEN, GERMANY.

6. GRATAIN FERNANDES S/O MR. PETER FERNANDES, AGED ABOUT 70 YEARS, R/AT 1982, PURCELL WAY, NORTH VANCOOVER, B.C.V & J 3K 3, CANADA.

7. MRS. ELSIE RODRIGUES W/O.FRANCIS RODRIGUES, AGED ABOUT 61 YEARS, ABU DHABI MARINE OPERATIVE COMPANY, POST BOX NO.303, ABU DHUBI, U.A.E.

…RESPONDENTS (NOTICE TO R2 TO R7 IS DISPENSED WITH V/O DTD: 17.07.2025)

***

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 20.04.2019 PASSED IN O.S.NO.44 OF 2008 CLUBBED WITH O.S.NO.343 OF 2005 ON THE FILE OF 2ND ADDITIONAL SENIOR CIVIL JUDGE AND CJM MANGALORE AS PER ANNEXURE-A AND PASS NECESSARY ORDER BY ALLOWING THE MEMO AS PRAYED FOR AS PER ANENXURE-G.

THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

ORAL ORDER

1. The present petition seeks to challenge an order dated 20.04.2019 passed on a Memo in O.S.No.44/2008 clubbed with O.S.No.343/2005, by the learned II Additional Senior Civil Judge and Chief Judicial Magistrate, Mangaluru, captioned as Annexure-A (hereinafter referred to as the "Impugned Order").

2. By the Impugned Order, the contention that was raised by the petitioner/defendant No.1 is that he should be permitted to cross-examine the plaintiff after the cross-examination undertaken by defendants No.2 to 6 has been rejected. The learned Trial Court has found that the grounds taken by the petitioner/defendant No.1 were without any merit inasmuch as it was stated before the learned Trial Court that his defence would be leaked by conducting the cross-examination earlier.

3. Notice to respondent Nos.2 to 7 has already been dispensed with by an order of this Court dated

17.07.2025.

4. Given the pendency of this matter for the last more than six years and the fact that by an interim order passed by this Court on 26.04.2019, stay of learned Trial Court proceedings was granted which was at the stage of final evidence, this Court deems it apposite to hear and decide the matter today.

5. The learned counsel for the petitioner/defendant No.1 has submitted that the petitioner and the respondents are all family members, being children of one Mr.Peter Fernandez. The family of the petitioner comprises of four brothers and four sisters.

5.1. Two Suits were filed inter-se the siblings, first being O.S.No.343/2005, filed seeking partition and rendition of accounts which was filed by respondent No.1 for the suit schedule property [hereinafter referred to as the “First Suit”]. The prayers in this suit and the suit schedule property are set out below:

“Prayers:

1.(a) For a relief of partition and division of the plaint A, C, D, E & F schedule properties by metes & bounds with reference to good and bad soil and to grant and allot to the plaintiff 1/8^th share in 'A' 'C' 'D' 'E' & 'F' schedule properties and 'B' schedule property in its entirety.

This relief is valued at Rs.45,79,108-00 as detailed in