IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITON NOS.17505-17508 OF 2018 (GM-CPC) BETWEEN:
1. SMT.SHANTHAMMA W/O.LATE NARAYANA SWAMY AGED ABOUT 41 YEARS 2. SMT.SARASWATHI D/O.LATE NARAYANA SWAMY AGED ABOUT 25 YEARS 3. SMT.LALITHA B.N.
D/O.LATE NARAYANA SWAMY AGED ABOUT 23 YEARS 4. KUM. SHALINI B.N.
D/O.LATE NARAYANA SWAMY AGED ABOUT 17 YEARS 5. KUM. NETHRA D/O.LATE NARAYANA SWAMY AGED ABOUT 13 YEARS 6. MASTER MANJUNATH S/O.LATE NARAYANA SWAMY AGED ABOUT 11 YEARS ALL ARE RESIDING AT BHODANAHOSAHALLI VILLAGE ANUGONDANAHALLI HOBLI HOSKOTE TALUK BANGALORE RURAL DISTRICT-562 114 … PETITIONERS (BY SRI KARTHIK P.M. FOR SRI RAKSHIT K.N., ADVOCATES) AND:
1. SMT.RATHNAMMA W/O.LATE V.HONAPPA AGED ABOUT 66 YEARS 2. SRI H.RAVI KUMAR S/O.LATE V.HONAPPA AGED ABOUT 37 YEARS 3. SRI H.SURESH S/O.LATE V.HONAPPA AGED ABOUT 37 YEARS 4. SRI H.SHASHIDHAR S/O.LATE V.HONAPPA AGED ABOUT 37 YEARS ALL ARE RESIDING AT NAGONDANAHALLI VILLAGE BIDARAHALLI POST BENGALURU EAST TALUK BENGALURU-560 064 … RESPONDENTS (NOTICE TO RESPONDENTS IS DISPENSED WITH) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 05.03.2018 (ANNEXURE-G) PASSED BY THE COURT OF THE CIVIL JUDGE (JR. DN.) AND JMFC, HOSKOTE IN OS.NO.188/2008.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner No.1 being the widow of plaintiff in O.S.No.188/2008 for a decree of redemption of mortgage is invoking the writ jurisdiction of this Court for invalidation of the order dated 05.03.2018 made by the Learned Civil Judge (Jr.Dn.) and JMFC, Hoskote, whereby her application for return of the original suit documents, has been negatived.
2. The respondents having been placed exparte in the Court below, notice to them here also is dispensed with in terms of memo filed by the petitioners.
3. Learned counsel for the petitioners argues that the reasoning of the Court below that the suit having been dismissed for non-prosecution on 17.11.2011, the application filed by the widow of deceased plaintiff for return of the document is not maintainable, appears to be too farfetched; the Court has no authority to retain the suit documents without deciding the claim of rightful interest holders therein, merely because the suit is dismissed for non-prosecution and no application for restoration of the suit is filed. So arguing, he seeks allowing of the writ petitions.
4. Having heard the learned counsel for the petitioners and having perused the petition papers, this writ petition needs to be favoured for the following reasons:
a). The redemption suit in O.S.No.188/2008 was filed by the husband of the petitioner No.1, Sri. Muniyappa who is stated to have died pendente lite; a copy of his death certificate was also produced before the Court below; plaintiff’s attorney Narayanaswamy is also stated to have passed away; so also the learned counsel who appeared for the plaintiff;
b) true it is that no application for restoration of the suit is filed, but law does not mandate that there should be an application for restoration of the suit in question as a precondition for entertaining the claim of the concerned for the return of the suit documents;
c) After dismissal of the suit ordinarily, the suit documents in original need to be returned to concerned party to the suit proceedings and in the event of their death, to their descendants/assigns; the Court has no power to retain the original documents of the parties; non release of the subject documents would come in the way of redemption of the mortgage which otherwise, the parties may seek out of the Court, as well.
In the above circumstances, the writ petitions are allowed; the impugned order is set at naught; the petitioner’s application dated 05.03.2018 seeking return of original suit documents is favoured; the trial Court is directed to return the suit documents to the petitioner No.1 after ascertaining her credentials as to her being the widow of the deceased plaintiff, forthwith, after retaining copies thereof, if need be.
Sd/- JUDGE KTY