IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA W.P.Nos. 59768-770/2015 (GM-CPC) BETWEEN SMT. RATHNAMMA W/O.NAGARAJAPPA, SINCE DEAD BY HER LRS 1. SMT. MANJULA W/O. DEVARAJ D/O. RATHNAMMA, AGED ABOUT 40 YEARS, R/O. SEETHI VILLAGE, CHANJIMALE POST, VEMGAL HOBLI, KOLAR TALUK 563 101.
2. SMT. PARIJATHA D/O. LATE RATHNAMMA, W/O. SHIVAKUMAR, AGED ABOUT 35 YEARS, NERNAHALLI VILLAGE, HUTTUR POST, KOLAR TALUK 563 101.
3. C. N. MANJUNATH S/O. NAGARAJAPPA, AGED ABOUT 34 YEARS R/O. CHANJIMALE VILLAGE, VEMGAL HOBLI, TALUK & DISTRICT: KOLAR (BY SRI. RAMAKRISHNA HEGDE, ADV. FOR SRI. VEERANNA G TIGADI, ADV.) AND 1. SRI. ERAPPA S/O.LATE NARAYANAPPA, AGED ABOUT 77 YEARS, 2. SRI BACHAPPA S/O.NARAYANAPPA, AGED ABOUT 68 YEARS, 3. SRI BYRAPPA S/O.NARAYANAPPA, AGED ABOUT 72 YEARS, 4. SRI MUNEMMA S/O.RAMANNA, AGED ABOUT 67 YEARS, 5. SRI RAMAKRISHNAPPA S/O.LATE MUNISHAMPPA, AGED ABOUT 65 YEARS, R1 TO R5 ARE R/AT SEETHI HOSUR, VEMGAL HOBLI, KOLAR TALUK-563101.
6. SMT. JAYAMMA S/O LATE MUNISHAMAPPA, AGED ABOUT 57 YEARS, R/O THOTI VILLAGE, SUGATUR HOBLI, KOLAR TALUK - 563 101.
... PETITIONERS 7. SRI MUNIREDDY S/O LATE MUNISHAMAPPA, AGED ABOUT 55 YEARS, R/O SEETI HOSUR VILLAGE, VEMGAL HOBLI, KOLAR TALUK - 563 101.
8. SMT. LAKSHMAMMA W/O NARASIMHAREDDY, D/O MUNISHAMAPPA, AGED ABOUT 52 YEARS, R/O DODLAHALLI VILLAGE, CHINTAMANI TALUK, CHIKKABALLAPURA DISTRICT.
9. SRI SRIRAMAPPA S/O LATE GOPALAPPA AGED ABOUT 62 YEARS, 10. SMT. SHARADAMMA W/O MUNIVENKATAPPA D/O LATE GOPALAPPA AGED ABOUT 60 YEARS, 11. SMT. PADMA W/O NARAYANASWAMY, D/O LATE GOPALAPPA AGED ABOUT 57 YEARS, 12. SMT. SAVITHRAMMA W/O GANGIREDDY, D/O LATE GOPALAPPA AGED ABOUT 55 YEARS, 13. SRI NAGAPPA S/O LATE GOPALAPPA AGED ABOUT 56 YEARS, 14. SMT. ANUSUYA W/O LATE SRINIVAS, D/O GOPALAPPA, AGED ABOUT 51 YEARS, 15. SMT. NARAYANAMMA W/O GANGIREDDY, AGED ABOUT 50 YEARS, 16. SRI CHENNAKRISHNA S/O LATE GOPALAPPA, AGED ABOUT 47 YEARS, 17. SMT. SAKAMMA W/O LATE MUNIYAPPA, AGED ABOUT 82 YEARS, R9 TO R17 ARE R/AT CHANJIMALE VILLAGE, VEMGAL HOBLI, KOLAR TALUK 563 101.
18. SMT. ASWATHAMMA S/O CHANDRAPPA, AGED ABOUT 67 YEARS, R/O ALAHALLI VILLAGE, VOKKALERI HOBLI, KOLAR TALUK - 563 101.
19. SMT. NARAYANAMMA W/O MUNIYAPPA AGED ABOUT 72 YEARS, 20. SRI MANJUNATHA S/O MUNIYAPPA AGED ABOUT 57 YEARS, 21. SRI RAJANNA S/O MUNIYAPPA AGED ABOUT 55 YEARS, R19 TO R21 ARE R/O CHANJIMALE VILLAGE, VEMGAL HOBLI, KOLAR TALUK - 563 101.
22. SMT. MANJULA W/O MANJUNATH, AGED ABOUT 52 YEARS, R/O ALAHALLI VILLAGE, VOKKALERI HOBLI, KOLAR TALUK - 563 101.
23. SMT. VEENA S/O VENKATESH, AGED ABOUT 47 YEARS, R/O AMARAVATHI LAYOUT, I CROSS, I MAIN, BANGARPET, KOLAR DISTRICT.
24. SMT. MUNIVENKATAMMA D/O LATE VENKATAPPA, AGED ABOUT 72 YEARS, R/O SEETHI HOSUR VILLAGE, VEMGAL HOBLI, KOLAR TALUK - 563 101.
(BY SRI. B N UMESH, ADV. FOR R1-R3, R5 & R7 SRI. LOKANATH T.V., ADV. FOR R6 & R8 R9 TO R24 – SD AND UNREPT. R18 IS LR OF R17 R4-DELETED V/O. DT. 20.03.2019) ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER AT ANNEX-F DATED 17.12.2015 PASSED IN O.S.292/2009 BY PRL. CIVIL JUDGE(SR. DIVISION), KOLAR; ALLOW I.A.NOS.24, 25 AND 26 PERMITTING THE PETITIONER TO PRODUCE THE DOCUMENTS PRODUCED A/W I.A.24, RE-OPEN THE CASE AND PERMIT THE PETITIONER TO ADDUCE FURTHER EVIDENCE.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Plaintiffs filed the present writ petitions against the order dated 17.12.2015 dismissing three applications, one filed under Section 151 of CPC to reopen the side of plaintiffs’ evidence; another application under Order 18 Rule 17 read with Section 151 of CPC to recall P.W.1 to adduce further evidence; and the other application under Order 7 Rule 14 read with Section 151 of CPC to condone the delay in producing the additional documents.
2. Plaintiffs filed a suit for partition and separate possession contending that plaintiffs and defendants are the members of the joint family and the suit schedule properties are the joint family properties of plaintiffs and defendants and there was no partition and therefore, the plaintiffs are entitled to 2/4th share in the suit schedule properties. Defendants filed written statement denying the plaint averments. They contended that the plaintiffs are strangers to the family of defendants and they are not entitled for any share and sought for dismissal of the suit.
3. After completion of evidence and when the matter was posted for arguments, plaintiffs filed three applications to reopen plaintiffs’ evidence, to recall P.W.1 to adduce further evidence and to condone the delay in producing additional documents. They contended that the additional documents are necessary to prove the case of the plaintiffs. The said applications were opposed by the defendants.
4. The trial Court considering the applications and objection, by the impugned order dated 17.12.2015 dismissed all the applications on the ground that the applications are filed only to protract the proceedings. Hence, present writ petitions are filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri. Ramakrishna Hegde, learned counsel for the petitioners contended that since the defendants denied the relationship of the plaintiffs, proposed documents are proper and necessary to prove the very relationship. He further contended that the trial Court without assigning proper reasons and only on the ground of delay, rejected the applications. He further contended that since issue of partition was involved, the court should not have rejected the same on technicality and ought to have given an opportunity to the plaintiffs to produce the additional documents. Therefore, he sought to allow the petition.
7. Per contra, Sri. B.N.Umesh and Sri. Lokanath T.V., learned counsel for the respondents - defendants sought to justify the impugned order. They contended that the suit was filed in the year 2009 and plaintiff was dragging the matter for one or the other reason. Written statement was also filed as back as in the year 2010 denying the relationship of the parties. If really there was any document to prove the very relationship, plaintiff ought to have produced the same within the reasonable period. Therefore, the trial Court was justified in rejecting the applications and sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed suit for partition and separate possession. Written statement was filed contending that plaintiffs are the strangers to family of defendants and they are not entitled to relief. It is also not in dispute that after completion of evidence the matter was posted for arguments and at that stage, applications came to be filed. The trial Court rejected the application mainly on the ground that 3 applications and 3 affidavits are not only bald but also there are no bonafides found in the said applications.
9. The trial Court failed to notice that rights of the parties are involved in respect of the suit schedule properties in a suit for partition between the parties to the lis. The trial Court ought to have given an opportunity to the plaintiffs to produce the documents to prove the plaintiffs’ case imposing reasonable cost. When substantial justice and technical grounds are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in justice being of technicality. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical ground but because it is capable of removing injustice and is expected to do so. This Court is also aware of the dictum in the case of GAYATHRI VS. M. GIRISH reported in AIR 2016 SC 3559, wherein the Hon’ble Supreme Court has held that inspite of repeated adjournments when the plaintiff has not produced documents, adjournments should not be granted. In the impugned order though the learned judge assigned the reasons that the application was not only bald but no bonafides are found, the fact remains that earlier to the applications filed, the plaintiffs never sought for adjournment in order to prove their case. Therefore, an opportunity to has to be provided to the plaintiffs to produce the documents on the next date of hearing without seeking any further adjournments.
10. For the reasons stated above, the writ petitions are allowed. Impugned order passed by the trial Court dated 17.12.2015 on I.As. are hereby quashed. Three applications filed under Section 151 of CPC, under Order 18 Rule 17 read with Section 151 of CPC and under Order 7 Rule 14 read with Section 151 are hereby allowed subject to payment of cost of Rs.6,000/- payable by the plaintiffs to the defendants on the next date of hearing before the trial Court. On payment of such cost, the trial Court shall permit the plaintiffs to produce the documents and proceed with the case. It is made clear that plaintiffs shall not seek any further adjournment.
Ordered accordingly.
Sd/- JUDGE VP