IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.9980/2019(GM-CPC) BETWEEN:
1. G. S. PRASANNA KUMAR, AGED ABOUT 44 YEARS, S/O LATE G.S.SHIVANNA, 2. M. VINAYA KEERTHY, AGED ABOUT 44 YEARS, S/O LATE B.MARIYANNA, 3. C.JANAKI BAI, AGED ABOUT 78 YEARS, W/O LATE C. DWARAKANATHA RAO, ALL ARE RESIDING AT NO.9, 2ND MAIN, SRIKANTAN LAYOUT, CRESCENT ROAD, HIGH GROUNDS, BENGALOORU-560 001.
... PETITIONERS (BY SRI RAMACHANDRA REDDY B. R., ADVOCATE) AND:
SHASHIKALA, AGED ABOUT 59 YEARS, W/O K.NARAYANAPRAKASH, #20, J/6, II FLOOR, 17TH A CROSS, 8TH MAIN, MALLESHWARAM, BENGALOORU-560 055.
... RESPONDENT **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 17.01.2019 PASSED BY THE LEARNED LVIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE (CCH-59), BENGALURU DISMISSING IA- 5 IN OS 2893/16 FILED BY THE PETITIONERS (ANNEXURE- F).
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners – defendant Nos.6 to 8 filed the present writ petition against the order dated 17.1.2019 on I.A. No.5 made in O.S. No.2893/2016 rejecting the application filed by them under Order 13 Rule 10 r/w Section 151 of the Code of Civil Procedure.
2. The respondent who is the plaintiff before the trial Court filed the suit for partition and separate possession of the suit schedule properties, contending that the plaintiff and defendant Nos.1 to 5 are members of the joint family and she is entitled to 1/6th share in the suit schedule properties and for grant of Permanent Injunction restraining the defendants Nos.6,7 and 8 from interfering with the peaceful possession and enjoyment of the suit schedule ‘A’ property.
3. The defendant Nos.6 & 7 filed the written statement denying the plaint averments and contended that defendant Nos.6 to 8 are the bonafide purchasers of the ‘A’ schedule property from the 1st defendant and there was earlier partition and therefore the very suit filed for partition is not maintainable and sought for dismissal of the suit.
4. When the matter was posted for cross-examination of PW.1, at that stage, defendant Nos.6 to 8 filed an application under Order 13 Rule 10 r/w Section 151 of the Code of Civil Procedure, to call for the records pertaining to O.S. No.4575/1992 on the file of the VII Addl. City Civil Judge, Bengaluru disposed of on 8.12.1998; Entire file in FDP No.21/92 on the file of the VII Addl. City Civil Judge, Bengaluru disposed of on 1.7.2010; and the entire file in RFA No.712/99 on the file of this Court disposed of on 2.1.2008, on the ground that the plaintiff concealed the above proceedings and has filed the suit. The plaintiff filed objections to the said application. The trial Court considering the application and the objections by the impugned order dated 17.1.2019 rejected the application. Hence the present writ petition is filed.
5. I have heard Sri B.R. Ramachandra Reddy, learned counsel for the petitioners.
6. Learned counsel for the petitioners – defendant Nos.6 to 8 contended that the impugned order passed by the trial Court rejecting I.A. No.5 filed by the defendants Nos.6 to 8 under Order 13 Rule 10 r/w Section 151 of the Code of Civil Procedure, is erroneous and contrary to the material on record. He would further submit the very purpose of I.A. No.5 filed by defendant Nos.6 to 8 was to verify and mark the signatures of the respondent – plaintiff in the earlier proceedings. Therefore the trial Court ought to have allowed the application and summoned the records sought therein.
7. The trial Court considering the application and the objections by the impugned order recorded a finding that the present suit is one for partition and separate possession of the suit schedule properties. The records reveal that defendant Nos.6 to 8 claim to be purchasers of one of the suit schedule properties. In this case, PW-1 has been partly cross-examined. During the further cross-examination of PW.1, the present application came to be filed by defendant Nos.6 to 8. The records which the defendant Nos.6 to 8 sought to call for are the court proceedings. Nothing prevents the plaintiff to obtain the certified copies and produce before the Court. If the said records are called from the different Courts as sought by the defendant Nos.6 to 8, it leads to delay in the proceedings. The Court proceedings cannot be denied by the parties. Therefore the application came to be rejected. However, liberty is given to the defendant Nos.6 to 8 to produce the certified copies of the said documents.
8. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. The petitioner has not made out any case to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed. However, petitioners - defendant Nos.6 to 8 are at liberty to apply and produce the certified copies as rightly held by the trial Court.
Sd/-
JUDGE Gss/-