IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.33806/2014 & W.P. No.34976/14 & W.P. No.34977/2014 (GM-CPC) BETWEEN:
1. SRI G. THEERTHA PRASAD, S/O GOVINDEGOWDA AGED ABOUT 31 YEARS 2. SMT. G. SUMALATHA D/O GOVINDEGOWDA AGED ABOUT 28 YEARS 3. SMT. G. SRIDEVI D/O GOVINDEGOWDA AGED ABOUT 32 YEARS 4. SMT. SUBHADRAMMA W/O GOVINDEGOWDA AGED ABOUT 54 YEARS ALL RESIDENTS OF DEVARAHALLI VILLAGE, BILIKERE HOBLI, HUNSUR TALUK, MYSORE DISTRICT-571103.
... PETITIONERS (BY SRI ABHINAV R., ADVOCATE) AND:
1. SMT. R. LEELAVATHI, D/O C R NARAYAN REDDY W/O GOVARDHAN AGED ABOUT 46 YEARS NO. 26, MAHAJANA LAYOUT 2ND MAIN ROAD, VIJAYANAGAR 2ND STAGE MYSORE-570017.
2. SRI SATHYASAI PARASAD S/O G VENKATARAJU AGED ABOUT 50 YEARS 3. MASTER HARSHA S/O G. SATHYASAI PRASAD AGED ABOUT 12 YEARS REPRESENTED BY ITS FATHER & NATURAL GUARDIAN SRI G SATHYASAI PRASAD BOTH RESIDING AT NO.5, 4TH MAIN ROD, YADAVAGIRI DAVARAJA MOHALLA MYSORE CITY-570017.
4. SRI GOVINDEGOWDA S/O LATE KULAGEREGOWDA @ THAMMANEGOWDA AGED ABOUT 59 YEARS DEVARAHALLI VILLAGE BILIKERE HOBLI, HUNSUR TALUK MYSORE DISTRICT-571103.
... RESPONDENTS (BY SRI C. S. SHRIDHAR, ADVOCATE FOR R1 & R3 BY SRI A.MADHUSUDHAN RAO, ADVOCATE FOR R2; SRI D.H. MARALIDHAR, ADVOCATE FOR R4) **** THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.2.7.2014 DISMISSING I.A.Nos. XIX, XX & XXI FILEDUNDER SECTION 151 OF CODE OF CIVIL PROCEDURE ; UNDER ORDER VII, RULE 14(3) R/W SECTION 151 OF CPC; AND UNDER ORDER XVIII RULE 17 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 IN O.S.NO.190/2007 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, HUNSUR AT ANNEXURE-H AND CONSEQUENTLY ALLOW THE APPLICATIONS FILED BY THE PLAINTIFFS.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The plaintiffs filed these writ petitions against the order dated 2.7.2014 on I.A. Nos.19, 20 and 21 made in O.S. No.190/2007 on the file of the Senior Civil Judge, Hunsur dismissing the applications with costs of Rs.200/-.
2. The plaintiffs filed the suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendant No.3 and there was no partition. The defendants filed the written statement denying the plaint averments and contended that the very suit filed by the plaintiffs is not maintainable and sought for dismissal of the suit.
3. When the matter was posted for cross-examination of DW.5, the plaintiffs filed I.A. Nos.19 to 21 seeking to re-open the plaintiffs’ evidence; recall PW.1 and permit PW.1 to produce additional documents to prove the conduct of DW.5 in getting the registered sale deed in the names of defendant Nos.1 and 2 fraudulently. The said applications were opposed by the defendants. The trial Court considering the applications and the objections by the impugned order dismissed all the IAs. on 2.7.2014. Hence the present writ petitions are filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Abhinav .R., larned counsel for the petitioners – plaintiffs contended that the impugned order passed by the trial Court rejecting the applications filed by the plaintiffs is erroneous and contrary to the material on record. He would further contend that while passing the impugned order, the plaintiffs shall satisfy the Court as contemplated under Order 7 Rule 14(3) of the Code of Civil Procedure as to why the documents are not produced at the earliest and the petitioners in the present case have specifically pleaded in the affidavit accompanying the application as to why the documents are produced at the belated stage. He would further contend that the documents proposed were confronted to DW.5, but the same was denied. Therefore the plaintiffs sought leave of the Court to produce those documents on their behalf. When the specific cogent reason is assigned for producing the documents at a belated stage, the trial Court ought to have permitted the plaintiffs to produce the documents. The same has not been done. Therefore he sought to allow the writ petitions.
6. Per contra, Sri A. Madhusudan Rao, learned counsel for Respondent No.2 and the learned counsel for the other respondents sought to justify the impugned order passed by the trial Court.
7. Sri A. Madhusudan Rao, learned counsel for Respondent No.2 contended that the proposed documents in the application nothing to do with the suit filed for partition and separate possession. The documents sought to be produced are only the certified copies of the order sheet in M.C. No.508/2012; Statement of objections filed by defendant NO.1, Deposition of DW.5 and the documents filed in the said M.C. and they no way concerned to the present case and the applications are filed only to protract the proceedings and to harass the defendants. Therefore he sought to dismiss the writ petitions.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiffs filed the suit for partition and separate possession. The defendants denied the averments made in the plaint. When the matter was posted for cross-examination of DW.5, at that stage, the plaintiffs filed three applications - I.A. No.19 under Section 151 of the Code of Civil Procedure to re-open the case; I.A. No.20 under Order 7 Rule 14(3) of the Code of Civil Procedure for production of the documents; and I.A. No.21 under Order 18 Rule 17 for recalling PW.1 on the ground that after cross-examination of DW.1, who is the power of attorney holder of defendant No.2, plaintiffs came to know that M.C. NO.508/2012 is pending adjudication between DW.5 and his wife, who is defendant No.1 and since DW.5 has denied the order sheet of the Family Court and statement of objections filed by defendant No.1, plaintiff intended to produce those documents for the purpose of proving his case as the said documents were very material to decide the real dispute between in controversy between the parties etc., 9. The trial Court considering the entire material on record, recorded a finding that upon going through the materials available on record, it is seen that this case is for partition and separate possession of the suit schedule properties. No doubt, plaintiffs have alleged that their father, defendant No.3 has sold item No.1 in favour of defendant Nos.1 and 2 to satisfy his bad habits etc., But that fact itself cannot be a ground to attack the character of DW.5. Apart from that, no where in the plaint, the role of DW.5 is whispered either at the time of negotiation of suit property or at the time of sale transaction. Accordingly, the trial Court dismissed the applications.
10. The fact remains that when the proposed documents i.e., certified copies of the order sheet of the Family Court in M.C. No.508/2012, statement of objections filed by the defendant No.1 in the M.C. Petition etc., were confronted to DW-5, the same were denied by him. Therefore the present applications came to be filed. It is not the case of the defendants that when the plaintiffs sought to confront the documents in respect of M.C. No.508/2012, it was opposed that they are irrelevant. In the absence of the same, when DW.5 denied certain documents to be confronted, mere production of the documents will not prejudice the case of the defendants. Ultimately, it is for the plaintiffs to prove the case for partition and separate possession based on the oral and documentary evidence to be adduced and produced by both the parties. Though the documents sought are irrelevant in the suit for partition as contended by the learned counsel for the respondent No.2, the same should have been opposed while it was confronted to DW.5 by the counsel for the plaintiffs. Mere production will not get any right to the plaintiffs to prove their case in a suit for partition. Ultimately, the learned Judge has to consider the proposed documents and its relevancy. By mere allowing the applications, no prejudice would be caused to the defendants. Taking into consideration the above facts and circumstances, this Court is of the considered opinion that one more opportunity should be given to the plaintiffs.
11. In view of the above, the writ petitions are allowed. The impugned order dated 2.7.2014 passed by the trial Court on I.A. Nos.19 to 21 in O.S. No.190/2007 is hereby quashed. I.A. Nos.19 to 21 filed by the plaintiffs for re-opening the case; production of documents and for recalling PW.1, are hereby allowed and the plaintiffs shall mark the proposed documents on the next date of hearing i.e., 22nd April 2019 without seeking any further adjournment and shall proceed with the case subject to payment of costs of Rs.6,000/- (Rupees six thousand only) by the plaintiff No.1 to the defendant Nos.1, 2(a) and (b) on the next date of hearing. If the plaintiffs fail to mark the documents on 22.4.2019, the trial Court shall proceed further in the suit in accordance with law.
Accordingly, the writ petitions are allowed with the above observations.
Sd/-
JUDGE Gss/-