Karnataka High Court
Manohar Ramakrishna Hegde vs Smt.K.Sarojini W/O.K.Ramaswamy on 23 August, 2021
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 23 R D DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO.145059 OF 2020 (GM-CPC)
BETWEEN:
MANOHAR RAMAKRISHNA HEGDE,
A/A 65 YEARS ,
AGRICULTURIST,
R/O: KEREGADDE,
KODLAGADDE VILLAGE,
TQ: YELLAPUR,
UTTARA KANNADA DISTRICT
...PETITIONER
(BY SRI. A.P. HEGDE, ADVOCATE)
AND:
1. SMT. K. SAROJINI W/O. K. RAMASWAMY,
D/O. LATE RAMAKRISHNA HEGDE,
A/A 69 YEARS,
HOUSEHOLD,
R/O : POORVA BELMONT,
KANAKAPURA ROAD,
JARAGANAHALLI STOP,
BANGALORE - 560 078.
2. SMT.LALITA W/O. GANAPATI HEGDE,
D/O. LATE RAMAKRISHNA HEGDE,
A/A 61 YEARS, HOUSEHOLD,
R/O : #42 and 43, S.V.LAYOUT,
1ST MAIN, 3RD CROSS,
SANJAYANAGAR,
RVM - II STAGE,
BANGALORE - 560 094.
2
3. SMT. SAVITA W/O. G.S. ARANTH,
D/O. LATE RAMAKRISHNA HEGDE,
A/A: 58 YEARS, HOUSEHOLD,
R/O: BHAVANI NILAYA,
GANDHINAGAR,
3RD CROSS, B.K.ROAD,
SAGAR, SHIMOGGA DIST. - 577 401.
4. SUBHAS RAMAKRISHNA HEGDE,
A/A 55 YEARS,
AGRICULTURIST,
R/O : KEREGADDE,
KODLAGADDE VILLAGE,
TQ : YELLAPUR,
U.K. DIST.
5. SHASHANK S/O.MANOHAR HEGDE,
A/A 35 YEARS,
AGRICULTURIST,
R/O : KEREGADDE,
KODLAGADDE VILLAGE,
TQ : YELLAPUR,
U.K. DIST.
6. SMT. DEEPA D/O. MANOHAR HEGDE,
A/A 40 YEARS, HOUSEHOLD,
R/O : KEREGADDE,
KODLAGADDE VILLAGE,
TQ : YELLAPUR,
U.K. DIST.
7. SMT. MAHALAXMI W/O.MANOHAR HEGDE,
A/A 60 YEARS, HOUSEHOLD,
R/O : KEREGADDE,
KODLAGADDE VILLAGE,
TQ : YELLAPUR,
U.K. DIST.
... RES PONDENTS
(BY SRI. VISHWAN ATH HEGDE, ADV . FOR C/ R1 TO R3;
SRI . VINAYAK B. HEGDE, ADV . F OR R4;
N OTICE TO R5 TO R7 IS DIS PEN SED WITH)
3
THIS WRIT PETITI ON IS FILED UNDER ARTICLES 226
AND 227 OF CON STITUTION OF IN DIA PRAYING TO QUASH
THE IMPUGNED ORDER PASSED BY HON'BLE SENIOR CIVIL JUDGE
COURT, YELLAPUR ON 07.02.2020 IN O.S.NO.12/2016 AS PER
ANNEXURE-J REJECTING I.A.NO.19 BY ALLOWING THIS WRIT
PETITION AND THUS ALLOWING IA.NO.19.
THIS WRIT PETITION COMING ON FOR ORDERS ,
THIS DAY, T HE COURT, MADE THE F OLLOWING:
ORDER
This petition is directed against the impugned order dated 07.02.2020 passed on I.A.No.19 in O.S.No.12/2016 on the file of the Senior Civil Judge, Yellapur, whereby the said application filed by the petitioner / defendant No.2 in the suit was rejected by the trial Court.
2. Heard learned counsel for the petitioner, learned counsel for respondent Nos.1 to 4 and perused the material on record.
3. The material on record indicates that the aforesaid suit was filed by respondent Nos.1 to 3 / plaintiffs against the petitioner and other defendants for partition, separate possession, declaration and 4 other reliefs in respect of the suit schedule immovable properties. In the said suit, the petitioner was arrayed as defendant No.2 and he contested the suit. Respondent Nos.4 to 7 were arrayed as other defendants in the suit.
4. On behalf of the plaintiffs, plaintiff No.1 - Smt. K. Sarojini was examined as Pw1 and cross- examined by the petitioner/defendant No.2. During the course of cross-examination of Pw-1, an undated document stated to be the draft Compromise in the hand writing of Sri. Ganapati Hegde, husband of Smt.Lalitha Hegde, plaintiff No.2 was confronted to Pw1. The said document having been denied by Pw1, document was marked as Ex.D9 through petitioner, who was examined as Dw2. After completion of evidence of Dw2, since the said document - Ex.D9 was denied by plaintiffs, defendant No.2/petitioner filed the instant application - I.A.No.19 seeking summoning of two witnesses viz., plaintiff No.2 - 5 Smt. Lalitha Hegde as well as her husband Sri.Ganapati Hegde, who is said to have written the said document Ex.D9 referred to supra. The said application - I.A.No.19 having been contested by respondent Nos.1 to 3 / plaintiffs, the trial Court proceeded to pass the impugned order rejecting I.A.No.19. Aggrieved by which, the petitioner is before this Court by way of present petition.
5. Insofar as findings recorded by the trial Court that the directions of summoning the opposite party as a witness and thereby rejecting the claim of the petitioner to summon plaintiff No.2 as a witness is concerned, the said impugned order in that regard cannot be said to suffer from any illegality or infirmity in the light of well settled principles of law that summoning of opposite party as a witness by the adverse party is not permissible and consequently, I.A.No.19 insofar as it relates to declining permission to the petitioner to summon plaintiff No.2 - 6 Smt.Lalitha Hegde as a witness on behalf of the petitioner / defendant No.2 does not warrant any interference by this Court, in the present petition.
6. Insofar as the impugned order relating to seeking to summon Sri. Ganapati Hegde, husband of plaintiff No.2 as a witness on behalf of the petitioner / defendant No.2 is concerned, a perusal of the impugned order at paragraph 13 will clearly indicate that the trial Court has gone into the merits with regard to the document Ex.D9, in respect of which the said witness was sought to be summoned. The trial Court has stated that the terms of the draft compromise were not accepted by the parties nor they were incorporated in O.S.No.15/2011 and since the same was not pleaded in the written statement of the petitioner, the evidence of said witness is irrelevant and consequently, proceeded to reject I.A.No.19 in relation of the said Sri. Ganapati Hegde. 7
7. In my considered opinion, in the light of the well settled principles of law that at the time of issuing summons to the witness to produce documents or to give evidence, the merits of the rival contentions cannot be gone into coupled with the fact that it is the specific contention put forth by the petitioner in the affidavit in support of I.A.No.19 that the draft compromise containing conditions to be incorporated in the compromise decree of 2011 was in the hand writing of the said witness Sri. Ganapati Hegde, the impugned order declining to permit the petitioner to summon the said Sri. Ganapati Hegde as a witness, is clearly illegal and has caused failure of justice warranting interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India.
8. Learned counsel for the Caveator -
respondent Nos. 1 to 3 submits that the witness Sri.Ganapati Hegde, is aged and suffering from 8 illnesses and not in a position to attend the Court and give evidence. The said submission is placed on record.
9. In the result, I pass the following:
ORDER
(i) Petition is partly allowed.
(ii) The impugned order dated 07.02.2020
insofar as it relates to rejecting the
request made by the petitioner/
defendant No.2, in I.A.No.19 in
O.S.No.12/2016, to summon
Sri.Ganapati Hegde, husband of plaintiff No.2 as a witness by the petitioner, is hereby set aside.
(iii) Consequently, I.A.No.19 is hereby partly allowed and petitioner is permitted to summon Sri. Ganapati Hegde, husband of plaintiff No.2, as a witness on behalf of the petitioner.9
(iv) Liberty is reserved in favour of the plaintiffs to file appropriate application for permission to examine the said witness - Sri. Ganapati Hegde, on commission and if such an application is made, the trial Court shall consider the same on merits and proceed further in accordance with law.
(v) Having regard to the fact that the suit is
of the year 2016, the trial Court is
directed to dispose of the suit on merits as expeditiously as possible and preferably within a period of nine months from the date of receipt of a copy of this order.
SD JUDGE SV