IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 28540 OF 2018 (GM-CPC) BETWEEN:
SRI. ABDUL RAHIMAN KUTTY, S/O LATE N S MOHAMMED, AGED ABOUT 69 YEARS, R/AT KALATHIL HOUSE, NEAR VICTORY TILES, THURUTH ALWAYS -683 101, ERNAKULAM DISTRICT KERALA. (BY SRI. K R RAMESH, ADVOCATE) AND:
1. SRI. C. S. ERACHAR S/O LATE SIDDAGAGACHAR, AGED ABOUT 64 YEARS, R/AT CHIKKASEEBI VILLAGE, BELLAVI HOBLI TUMKUR TALUK, TUMKUR DISTRICT-572 101.
2. SMT K P KAMALA, W/O SRI V N MURTHY, AGED MAJOR, R/AT NELAHAL VILLAGE, BELLAVI HOBLI, TUMKUR TALUK, TUMKUR DISTRICT-572101.
(BY SRI. S NAGARAJA, ADVOCATE FOR R2; R1 SERVED) ... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 28.05.2018 PASSED IN O.S.NO.35/1999, BY THE IVTH ADDL. CIVIL JUDGE & JMGC, TUMKUR, ON I.A. FILED BY THE PETITIONER UNDER ORDER XVI RULE 6 OF CPC, AT ANNEXURE-L AND THEREBY ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER ORDER XVI RULE 6 OF CPC IN O.S.NO. 35/1999.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the plaintiff in a declaratory suit in O.S.No.35/1999 is invoking the writ jurisdiction of this Court for assailing the order dated 28.05.2018, a copy whereof is at Annexure-L, whereby his application in I.A.No.12 filed under Order XVI Rule 6 of CPC, 1908, having been rejected, the learned trial Judge has refused to summon the original Registers from the office of the jurisdictional Sub-Registrar concerning the said transaction. After service of notice, only the 2nd respondent having entered appearance through her counsel resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, the impugned order is founded to be unsustainable inasmuch as:
(a) going by the plaint averments, a copy whereof is at Annexure-A, it is the specific case of the petitioner that the subject Sale Deed has been executed by impersonation and this fact can be ascertained only if the original Registers from the jurisdictional Sub-Registrar are summoned and examined, more particularly when the other side in its evidence has specifically stated that the original Sale Deed of 2nd respondent-vendor is lost; and (b) what prejudice would have been caused to the other side if petitioner’s application was allowed is not forthcoming; the production of original Registers from the office of the jurisdictional Sub-Registrar would facilitate due adjudication of the contentions in the suit; the need for such exercise is eminently present because of the suit being founded on fraud and duplication.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; petitioner’s subject application having been favoured, the learned trial Judge shall summon the subject Registers/documents from the jurisdictional Sub-Registrar for being produced and marked in the evidence of the petitioners side.
All contentions of the parties are kept open.
Since the subject suit is of the year 1999 i.e., about two decades old, the learned trial Judge to try and dispose of the same within a period of one year excluding the adjournment sought for by the petitioner.
No costs.
Sd/- JUDGE Snb/