(Prayer: These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to set aside the impugned common orders dated 15.12.2014 on IAs (IAs numbered) by the Court of Civil Judge (Jr.Dn) and JMFC at Kanakapura in O.S.No.258/2009 i.e., order sheet vide Annexure - A and allow the recall and reopen applications filed by the petitioners by granting an opportunity and to grant an interim order to stay further proceedings in O.S.No.258/2009 filed by the petitioners pending before the Civil Judge (Jr.Dn) and JMFC at Kanakapura (Order sheet) i.e., Annexure - A.)

1. Petitioners are the defendants in O.S.No.258/2009 on the file of the Civil Judge (Jr.Dn.) and JMFC, Kanakapura. Being aggrieved by the order dated 15-12-2014 dismissing the application filed for reopening and recalling P.W.I for cross-examination, the petitioners have filed these writ petitions.

2. The respondents herein had filed the suit seeking for permanent injunction, restraining the defendants from interfering with the peaceful possession and for other reliefs. The contesting defendants filed written statement denying the averments made in the plaint. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. The plaintiffs in order to prove their case have examined the first plaintiff as P.W.I. The case was posted for cross-examination of P.W.I. However, the first defendant is dragging the matter. Though P.W. 1 was present before the Court on 27-9-2014, the first defendant has not chosen to cross-examine him. In view of that, the cross-examination of P.W.I was recorded as NIL. Thereafter the defendants filed an application for recalling the said order and also contended that due to unavoidable circumstances, he could not be present before the court on 27-09-2014 and sought for one more opportunity to cross-examine P.W.I. The Trial Court by its cryptic order dated 15-12-2014 rejected the application. The Court has not assigned any reason. Being aggrieved by the said order, the present writ petitions are filed.

3. Sri. Vishnu Hegde, learned counsel for the petitioners contended that due to unavoidable circumstances he could not be present before the court on 27-09-2014, if one more opportunity is given, he will cross-examine P.W. 1 and co-operate for disposal of the matter.

4. On the other hand, learned counsel for the respondents argued in support of the order passed by the Trial Court.

5. I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order impugned and of her relevant records.

6. The records clearly disclose that the plaintiffs filed the suit seeking for permanent injunction and other reliefs in the year 2004. After framing of issues, the matter was posted for evidence. The first plaintiff was examined as P.W.I. Examination-in-chief of P.W.I was completed on 3-2-2012. Thereafter the matter was posted for cross- examination of P.W.I. However, the matter was being adjourned for one reason or the other. On 27-09-2014, learned counsel appearing for the defendants was not well and he could not be present before the Court when the case was called. In view of that, the cross-examination by defendants was recorded as NIL. Thereafter two applications were filed, one for reopening the evidence of P.W. 1 and recalling the P.W. 1 for cross-examination. The Trial Court without assigning any reasons rejected the applications in four sentence order. The order passed by the Trial Court is not sustainable in law. When the petitioners filed an application explaining the reasons for non-appearance on 27-09-2014, the same has not been considered by the Trial Court. The specific case pleaded by the petitioners is that, on that day, the advocate was not well and he could not be present before the Court when the case was called. It is incumbent upon the Trial Court to consider the application on merits and pass orders in accordance with law. In the instant case, very cryptic order has been passed and the same is liable to be set aside. 

7. In the facts and circumstances of the case, I pass the following:

ORDER

The writ petitions are allowed. The order dated 15-12-2014 is set aside. It was informed to the Court that the case is posted on 21-1-2015. Both the counsel request the court to fix a particular date for evidence of P.W.I. If such a request is made to the Trial Court, the Trial Court shall consider the same.

Learned

counsel appearing for the petitioners undertakes to appear before the Court and cross-examine P.W. 1 on the fixed by the Trial Court. Learned counsel appearing for the respondents submits that he will keep his party present before the court on the date fixed by the Trial Court for cross- examination of P.W. 1.  The Trial Court is directed to dispose of the matter as expeditiously as possible, within a period of six months from the date of receipt of a copy of this order.