Karnataka High CourtSarfraz Ahamed S/O. Hazisayyad ... vs Saeeda W/O. Abdulrazak Bekinakar on 20 March, 2012Author:B.S.PatilBench:B.S.PatilI




            IN THE HIGH COURT OF KARNATAKA
               CIRCUIT BENCH AT DHARWAD

         DATED THIS THE 20TH DAY OF MARCH 2012

                           BEFORE

            THE HON'BLE MR.JUSTICE B.S.PATIL

                   W.P.No.60412/2012
                          AND
               W.P.No.61691/2012 (GM-CPC)

BETWEEN:

       Sri Sarfraz Ahamed
       Sb Hazisayyad Tajuddin Saheb Umachagi,
       Age: 45 yrs, 0cc: Business,
       R/o Katagar Oni, Gadag,
       Now R/o at Coen Road, Hubli.

                                      .PETITIONER

(By Sri T.Basavanagoud, Adv.)

AND:

       Smt. Saeeda W/o Abduirazak Bekinakar,
       Age: 56 years, 0cc: Household work,
       R/o 5th years, 0cc: House hold work,
       R/o 5th Cross, Renuka Nagar,
       Gokul Road, Hubli.
                                      RESPONDENT

(By Sri S.S.Khateeb and Santosh D. Naragund, Advs.)


      This writ petition is filed underArticles 226& 227of the
Constitution of India praying to quash the order dated
17,/11/2011, passed on I.A.No.9 and 10 both filed U/S. 151of
CPC in O.S.No.162/2009 pending on the file of Civil Judge
(Sr.Dn.) Annexure-F.
                                2




      These writ petitions coming on for preliminary hearing
this day the Court made the following:

                            ORDERIn these two petitions, petitioner is aggrieved by the

     order passed by the Court below rejecting l.A. Nos. 9 and

      10 filed by the petitioners. I.A.No.9 was filed seeking to

     reopen the case for further cross-examination of D.W.2

     and I.A.No.1O was filed to recall D.W.1.2.   These two applications were filed by the plaintiff-petitioner herein when the matter was            posted for

     arguments. D.W. 1 is an official of Hubli-Dharwad Urban

     Development Authority. Another witness examined by

     the defendant is the City Surveyor/ADLR, who is

     examined as D.W.2. Through him certified copy of CTS

     No.292 1 is produced and marked as Ex.D6 and P.R.

     card of CTS No. 2921A is produced. The defendant did

     not enter the witness box.3.    In the affidavit filed, the plaintiff has stated that at the

     request of the defendant the Court permitted him to first

     lead evidence of his witnesses. But, without leading his

     own evidence and after examining the two official

     witnesses, defendant closed his side. Further D.W.2 did3not bring any original document and only produced

     certified copy of CTS No. 2921 as Ex.D.6, apart from the

     P.R. card of CTS No.2921A. Therefore, the dispute in

     question was required to be elicited by further cross-

     examining DW2.4.   This request was opposed by the defendant. The trial

     Court has considered the request and rejected the same

     holding that, admittedly the defendant had failed to

     enter the witness box. D.W.2 the City Surveyor of Hubli

     had deposed that he has produced original P.R. card as

     summoned by the Court. He has deposed in his chief-

     examination that he was the custodian of the record.

     But, in the cross-examination, he has clearly stated that

     as on the date mutation entry pertaining to the suit

     property was effected, he was not working       under the

     city survey office and therefore he was only deposing on

     the basis of the records furnished in the office. Thus, the

     Court below has opined that the said witness was not

     the competent person to answer the querry pertaining

     to the original documents and therefore it was not

     necessary to recall P.W.2. The Court below has further

     found that D.W.2 was not the officer who effected thei)4mutation entry pertaining to CTS No.2921. Therefore, it

     was not necessary to recall D.W.2 to subject him for

     further cross-examination on that point, as no purpose

     would be served to recall D,W.2.5.   The court has reserved liberty to the plaintiff to summon

     the Assistant Director of Land Records and examine him

     as a witness. Instead of availing the said benefit, the

     plaintiff has rushed to this Court by filing this writ

     petition.6.   Learned counsel for the petitioner places reliance on the

     judgment of the Apex Court inK.K.Velusamy Vs. N.

     Palanisamyreported in   2011 SCJ 448 and          the

     judgment of this Court in case ofSmt. Ellamma Alias

     Yellamma Vs. P. Venkateshappa and Anotherreported

     in 2010 (5) KCCR 4181, in support of his contention

     that the    Court below ought to      have   allowed   the

     application and granted an opportunity to the petitioner

     to further cross-examine D.W.2.7.   On careful consideration of the material on record and

     the judgment on which reliance is placed, I am of the

     considered view that the two judgments relied by the

     counsel for the petitioner have no relevance to the facts5of the present case. The order passed by the court below

does not suffer from any apparent illegality      error of

jurisdiction. The petitioner is reserved liberty to examine

the ADLR in support of his case. Therefore, no prejudice

or injustice is caused to the petitioner.


Hence, the writ petition being devoid of merits is

dismissed.sal-