MAHALINGAPPA Vs. KARIYANNA

JUDGEMENT

(1.) THE petitioners herein are the defendants in O. S. No. 205 of 1999 on the file of the court of the Junior Civil Judge, Madakasira. The said suit was filed by the respondent herein for partition of the suit schedule property and for separate possession of his 1/4th share and other consequential reliefs. The Revision petitioners/defendants contested the suit and during the course of evidence D. W. 1 was examined on their behalf. An affidavit of D. W. 1 in lieu of chief-examination was filed and thereafter he was also cross-examined by the counsel for plaintiff in part on 19-7-2007 during which ex. A-3 document was marked. However, d. W. 1 failed to appear for further cross-examination and consequently by order dated 17-8-2007 his evidence was eschewed.

(2.) SUBSEQUENTLY the plaintiff filed i. A. No. 625 of 2007 under Section 151 of c. P. C. to set aside the order dated 17-8-2007 stating that no sufficient reasons could be shown for non-production of D. W. 1 for further cross-examination. Though the defendants filed a counter and opposed the said petition, the Court below by order dated 8-4-2008 allowed I. A. No. 625 of 2007 and set aside the earlier order dated 17-8-2007 on payment of costs of Rs. 200/ -.

(3.) AGGRIEVED by the said order, the present Civil Revision Petition is filed by the defendants under Article 227 of the constitution of India contending that the court below committed a grave error in allowing I. A. No. 625 of 2007 thereby compelling D. W. 1 to subject himself to cross-examination. It is also contended that since the order dated 17-8-2007 eschewing D. W. 1 has become final, the same cannot be recalled or set aside in exercise of powers under Section 151 of C. P. C.