IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 42808 OF 2019 (GM-CPC) BETWEEN:
1. SMT PUSHPA WIFE OF LATE NARAYANAN AGED ABOUT 59 YEARS, 2. SRI N VENKATESH SON OF LATE NARAYANAN AGED ABOUT 36 YEARS, 3. SRI N KANIYAPPA SON OF LATE NARAYANAN AGED ABOUT 32 YEARS, 4. SRI N VELU SON OF LATE NARAYANAN AGED ABOUT 28 YEARS, ALL ARE RESIDING AT NO.19 3RD MAIN ROAD, GELEYARA BALAGA, J C NAGAR, NANDINI LAYOUT, BENGALURU-560086.
5. SRI R RANGANAHAN S/O LATE RAMASWAMY GOUNDER, AGED ABOUT 54 YEARS, RESIDING AT DOOR NO.123, 1ST H MAIN, 8TH CROSS, J S NAGAR, NANDINI LAYOUT, BENGALURU-86.
6. SMT ALUMELU W/O SELVAN, D/O LATE RAMASWAMY GOUNDER, AGED ABOUT 51 YEARS, RESIDING AT NO.61, 2ND CROSS, SARASATHIPURAM MAIN ROAD, MAHALAKSHMI LAYOUT, BENGALURU-560086.
(BY SRI. T SESHAGIRI RAO, ADVOCATE) … PETITIONERS AND:
1. SRI R SUBRAMANI S/O LATE RAMASWAMY GOUNDER, AGED ABOUT 59 YEARS, RESIDING AT NO.29, 3RD MAIN ROAD GELEYARA BALAGA, J C NAGARA, NANDINI LAYOUT, BENGALURU-86.
2. SRI. R KRISHNA MURTHY, S/O LATE RAMASWAMY GOUNDER, AGED ABOUT 49 YEARS, RESIDING AT NO.29, 3RD MAIN ROAD GELEYARA BALAGA, J C NAGARA, NANDINI LAYOUT, BENGALURU-86.
… RESPONDENTS (BY SRI. C SHANKAR REDDY, ADVOCATE FOR C/R1) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH OF THE IMPUGNED ORDER DATED 23.07.2019 ONE PASSED BY THE XXIVTH ADDL. CITY CIVIL JUDGE AT BANGALORE ON THE APPLICATION FILED BY THE PETITIONERS UNDER ORDER XVI RULE 6 OF CPC IN O.S.NO.1769/2010 FOUND AT ANNEXURE-F TO THE W.P.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the plaintiffs in a declaration suit in O.S.No.1697/2010 are knocking at the doors of writ Court for assailing the order date 23.07.2019, a copy whereof is at Annexure-F whereby the learned XXIV Additional City Civil Judge, Bengaluru, having rejected his application filed under Order 16 Rule 6 of CPC, 1908 has refused to summon the jurisdictional Sub-registrar to the witness box and for summoning of the subject documents. After service of notice, respondents having entered caveat through his counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that, reprieve needs to be granted to the petitioners for the following reasons:
(a) the suit is inter alia for a decree of declaration that a particular document i.e., partition deed is forged one; when allegations of forgery, fraud or fabrication are taken up by way of pleadings and an issue in that regard has been framed, the person upon whom the burden lies has a wider right to produce all material as is required for substantiation of his stand; if the subject documents are summoned, the same would facilitate the adjudication of the issue as to the fraud & fabrication; refusing to call for them on the contra would result into a great injustice which the writ Court can not be a party to;
(b) what prejudice would have been caused to the other side if the subject documents are summoned from the office of the jurisdictional Sub-registrar has not been forthcoming from the impugned order; the rejection of petitioners’ prayer for referring certain documents for forensic examination per se would not be of much relevance for consideration of his present request;
(c) however the prayer for summoning of the Sub- registrar by issuing subpoena is rightly rejected as contended by the learned counsel for the respondents, since matter is more of documentary evidence and less of personal say of the incumbent of the Office of the sub- Registrar who may not, at this length of time, be in the service/post at all.
In the above circumstances, this writ petition succeeds in part; petitioners’ application having been favoured, the trial court shall take steps to summon the subject documents from the Office of the jurisdictional Sub-registrar for being produced and marked in evidence subject to relevancy & admissibility.
All other contentions of the parties are kept open. No costs.
Sd/- JUDGE Bsv