IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITON Nos.35378-380 OF 2015 (GM-CPC) BETWEEN:
P.T. Appajji Gowda S/o Pillanna Aged about 86 years New Pillanna Complex White Field Bengaluru South Taluk. … Petitioner (By Sri Shanmukhappa, Advocate ) AND 1. Smt. Susheelamma Aged about 75 years D/o late Pillanna R/o Thattanur Village Anugondanahalli Hobli Hosakote Taluk, Bengaluru District-571112.
2. Smt. Lakshmamma Aged about 84 years W/o late Sri Pillanna R/o Hagadur Village Krishnarajpura Hobli Bengaluru South Taluk Bengaluru District-561218.
3. Smt. Narayanamma W/o Late Pillanna R/o Thatanur Village Anugondanahalli Hobli Hoskote Taluk Bengaluru District-571112.
4. Smt. Parvathamma W/o Late H.P.Krishna Gowda Aged about 64 years.
5. Sri Praveen Kumar S/o late H.P.Krishna Gowda Aged about 42 years.
6. Smt. Komala W/o Venkatesh Late H.P.Krishna Gowda Aged about 38 years 7. Sri Pradeep Kumar S/o Late H.P.Krishna Gowda Aged about 36 years All are residing at Agadur Village Varthur Hobli, Bengaluru East Taluk – 571124.
8. P.K.Visveshwaraiah S/o late Pillanna, Aged about 64 years.
R/at New Pillanna Complex White Field, Bengaluru South Taluk Bengaluru District – 571243.
9. H.P.Bhima Raju S/o late Pillanna Aged about 60 years Ajagondanahalli Village Hoskote Taluk Bengaluru District – 571243.
10. H.P.Srirama S/o late Pillanna Aged about 56 years R/at New Pillanna Complex White Field Bengaluru South Taluk Bengaluru District – 571243.
11. Smt. Sarojamma D/o late Pillanna W/o Venkataswamy R/o No.33/11, 4th Main, Wilson Garden Bengaluru – 560 027.
12. Smt. Rukmaniyamma Aged about 88 years D/o late Pillanna W/o T. Venkataramana Reddy, R/o No.218, 11th Cross, Hombegowda Nagar, Bengaluru – 560 027.
13. Smt. Parvathamma Aged about 78 years D/o late Pillanna W/o Sri Jayaram R/o No.21/64, East End Road, 9th Block, 38th Cross, Jayanagar, Bengaluru – 560 011.
14. Sri Sreeraj Proprietor M/s Garden Enterprises No.40/4, Levelle Road Bengaluru – 560001. … Respondents (By Sri S.Kalyan Basavaraj, Advocate for R1; Sri C.Gowrishankar, Advocate for R13; Notice to R2, R4 to R11 is dispensed with vide Order dated 29.06.2016;R3, R12 & 14 are served) These writ petitions are filed under Article 227 of the Constitution of India praying to set aside the impugned order dated 10.03.2015 passed by the learned Principal Senior Civil Judge, Bangalore Rural District, Bangalore in O.S.No.752/95 on IA Nos.29 to 31, vide Annexure-A.
These Writ Petitions coming on for Preliminary Hearing in B Group this day, the Court made the following:
ORDER Petitioner being the 3rd defendant in O.S.No.752/1995 filed by the 1st respondent-plaintiff for partition & separate possession of the subject property is knocking at the doors of writ court for assailing the order dated 10.03.2015, a copy whereof is at Annexure-A, whereby the learned Principal Senior Civil Judge, Bengaluru Rural District has rejected his applications in I.A.Nos.29 to 31 in substance for re-opening of the case for the purpose of leading further evidence by produced additional documents. After service of notice the contesting respondent having entered appearance through her counsel opposes the writ petitions.
2. Learned counsel for the petitioner argues that the subject documents which could not be procured and produced earlier despite diligence have a great bearing on the issues involved in the suit; their non-production would prejudice case of the petitioners and conversely their production would not in any way prejudice the other side; this aspect of the matter having not being properly adverted to by the court below, there is error apparent on the face of the record warranting indulgence of this Court. So arguing, he seeks allowing of the writ petitions.
3. Learned counsel for the contesting respondent per contra contends that the petitioner has been dragging on the suit proceedings with one or the other application; no good reason is assigned for not producing the subject documents earlier; the said documents are not relevant either; the impugned order being the result of exercise of discretion by the court below, the same is not vulnerable either in law or on facts. So contending, he seeks dismissal of the writ petitions.
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of a considered opinion that petitioner’s applications ought to have been favoured because:
(i) suit is for partition & separate possession of the subject property and that parties are related to each other; ordinarily, in partition suits the parties should be free to produce all and whatever evidence they want to, subject to the rule of relevancy & admissibility; delay per se is not a sufficient ground to deny leave to produce the same;
(ii) the subject documents now sought to be produced would advance the cause of justice and their non-production may prejudice the case of the petitioner; their production in no way affects the case of the other side; whatever little prejudice the plaintiff suffers by belated production of these documents can be compensated in terms of cost.
In the above circumstances, the writ petitions are allowed; the impugned order is set at naught; petitioner’s subject applications are favoured; leave is granted for the production of the subject documents on payment of a cost of Rs.10,000/- to the respondent-plaintiff Smt. Susheelamma within one month or on the next date of hearing of the suit, whichever is earlier, failing which the order now quashed shall stand resurrected.
It is needless to mention that the contesting respondents shall have right to lead the rebuttal evidence, if they so choose Sd/- JUDGE KTY