THIS WP IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT / SET ASIDE ORDER DATED 07.03.2023 PASSED BY THE COURT OF LEARNED IV ADDL. CIVIL JUDGE AND JMFC, TUMAKURU ON AN APPLICATION FILED U/O XVIII RULE 17(A) R/W SEC. 151 OF CPC 1908 SEEKING TO RECALL THE PW1 IN OS NO.149/2014 PRODUCED AS ANNX-F TO THE WP AND ETC.,

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

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This writ petition is filed challenging the order dated 07.03.2023 passed on an application filed under Order XVIII Rule 17A read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') in OS No.149 of 2014 by the IV Additional Civil Judge and JMFC, Tumakuru (hereinafter referred to as 'Trial Court', for short).

2. Heard Sri Guruprasad Hegde, learned counsel for Sri S.V. Prakash, learned counsel appearing for the legal representatives of petitioner and Sri Pradeep J.S., learned counsel appearing for respondent No.1.

3. Respondents No.1 to 8 have filed a suit for the relief of partition and separate possession. In the said suit, the petitioner herein is defendant No.1 and he filed a detailed written statement denying the plaint averments.

4. The plaintiffs, in order to prove their case, examined PW1. Thereafter, the matter was posted for cross-examination of the said witness by the defendant, and the counsel for the defendant sought time. The Trial Court provided an opportunity to the counsel. However, on 09.11.2022, in the afternoon session, counsel could not appear before the Court. Hence, the matter was posted to the next stage. The defendant No.1 filed an application to recall PW1 and sought permission to cross-examine PW1, which came to be rejected by the Trial Court on the ground that sufficient opportunity is provided to the defendant to cross-examine PW1 and despite which the defendant failed to cross-examine PW1.

5. It is to be noticed that, on a given date the counsel for defendant No.1 could not appear and for non appearance, certain explanation is offered. What is required to be noticed is that the right to cross examination is a substantive right available to the party and considering the same and also keeping in mind that now the matter is adjourned for further evidence of plaintiff, I am of the view that the writ petition deserves to be allowed by providing one opportunity to the petitioner to cross-examine PW1 on terms.

6. For the aforementioned reasons, I proceed to pass the following:

ORDER

i) Writ petition is allowed.

ii) Impugned order dated 07.03.2023 passed on an application filed under Order XVIII Rule 17A of CPC is set aside. Consequently, Interlocutory Application filed by defendant No.1 is allowed.

iii) The petitioner is permitted to cross-examine PW1 on the next date of hearing subject to the petitioner paying cost of Rs.3,000/- to the PW.1.

At this stage, counsel appearing on both sides submit that the suit is of the year 2014 and seek to issue necessary directions to the Trial Court to dispose of the suit in a time-bound manner.

I am of the view that no mandamus can be issued to the Trial Court to dispose of the suit in a time-bound manner. However, the Trial Court can dispose of the suit considering the seniority of the case and pendency of the matter before it.