Karnataka High Court
Sri K Anjanappa vs Sri Rahul on 5 June, 2018
Author: S G Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR. JUSTICE S.G.PANDIT
WRIT PETITION Nos.35881-35882/2015 (GM-CPC)
BETWEEN:
1. Sri.K.Anjanappa,
S/o Jammabovi,
Aged 54 years,
2. Smt.Honnamma,
W/o K.Anjanappa,
Aged 46 years,
3. Smt.Kribasamma,
W/o Chandrashekar,
D/o K.Anjanappa,
Aged 30 years,
R/of No.18/3, 2nd Cross,
Basavanagudi,
Shivamogga-577201.
4. Kum.Sunitha,
D/o K.Anjanappa,
Aged about 28 years,
5. Kum.Sangeetha,
D/o.K.Anjanappa,
Aged about 26 years,,
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6. Kum.Sujatha,
D/o.K.Anjanappa,
Aged about 22 years,
7. Sri.Harish
S/o K.Anjanappa,
Aged about 22 years
Petitioners No1 to 2 and 4 to 7
Are residents of
Kogganuru Village-566 776
Davanagere Taluk & District.
... Petitioners
(By Sri. S V Prakash, Advocate)
AND:
Sri.Rahul,
S/o Raj Kumar,
Aged about 23 years,
R/o.No627/4, Kaipet,
Davanagere City-577 001,
Davanagere District.
... Respondent
(By Sri. Sridhar N Hegde, Advocate)
These Writ Petitions are filed under Article 227 of
the Constitution of India, praying to quash the order
dated 10.12.2014 on IA.No.10 filed under VII Rule 14(3)
of CPC vide Annexure-F and the order dated 13.08.2015
on IA.No.11 filed under Order XVI Rules 1 and 2 in
O.S.No.29/2012 passed by the learned III Additional
Senior Civil Judge, Davanagere Vide Annexure-K and
etc.,
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These Writ Petitions coming on for Preliminary
Hearing this day, the Court made the following:-
ORDER
The petitioners are before this Court under Article 227 of the Constitution of India challenging the order passed on 10.12.2014 on IA.No.10 filed under Order VII Rule 14(3) and order dated 13.08.2015 passed on I.A.No.11 filed under Order XVI, Rules 1 and 2 in OS.No.29/2012 by the Leaned III Additional Senior Civil Jude, Davanagere, by which both IA's are rejected.
2. The petitioners are plaintiffs in OS.No.29/2012 which is filed for declaration to declare that, the alleged registered sale deed dated 19.11.2010 obtained by the defendant and his father, registered in the office of Sub-registrar, Davanagere is a fraudulent document, void ab-intio, non-est in the eye of law and for perpetual permanent injunction to restrain the defendant from interfering with peaceful possession and enjoyment of the plaintiffs over suit schedule property. 4
3. The defendant filed written statement denying the plaint averments and prayed for rejection of suit. On the basis of the pleadings, issues have been framed and at present suit is at the stage of further evidence of plaintiff No.1.
4. The plaintiffs-petitioners herein have filed two applications i.e. IA.No.10 filed under Order VII Rule 14(3) and I.A.Nos.11 filed under Order XVI, Rules 1 and
2.
5. IA.No.10 was filed seeking leave to produce additional list of documents and IA.No.11 filed to produce additional list of witnesses.
6. The said applications were contested by filing objections of defendant stating that the documents are not relevant for the purpose of deciding the issue and however, with regard to production of additional list 5 of witnesses it is stated that earlier also plaintiffs have filed additional list of witnesses which was allowed.
7. The trial Court by order dated 10.12.2014 has rejected the IA.No.10 filed under Order VII Rule 14(3) seeking permission to produce additional documents and I.A.Nos.11 dated 13.08.2015 filed under Order XVI, Rules 1 and 2 seeking permission to produce additional list of witnesses. Both orders are impugned in the present writ petition.
8. Heard the learned advocates appearing for both parties and perused writ papers.
9. The suit filed by the petitioners herein is for declaration of the alleged registered sale deed as fraudulent document and to declare as void ab-intio, non-est in the eye of law and for perpetual permanent injunction to restrain the defendant from interfering 6 with peaceful possession and enjoyment of the plaintiff's possession.
10. As submitted by both sides, the suit is at the stage of further evidence of plaintiff. Learned counsel for the petitioners submit that plaintiff No.1 had suffered Paralysis stroke and had taken treatment. It is further submitted by learned counsel for petitioner that taking advantage of the ill-health, the transaction has taken place. Therefore, he submits that it has become necessary for him to produce certain documents which are not produced earlier. The said documents are bank endorsement regarding the previous loan transaction and the medical prescriptions and order of Thasildar, which according to the petitioners-plaintiffs, misplaced documents are traced. He further submits that those documents are very important to arrive at just conclusion in the suit.
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11. With regard to list of witnesses, he submitted that he has filed a list, containing names of three witnesses i.e., Sri. Harish, Village Accountant, RTO, Davangere, The Doctor, St. Mery's Paralytic Centre, Halaga, Karavara District. According to plaintiffs, those witnesses are necessary to prove their case.
12. Per Contra, learned counsel for the respondent vehemently argued and submitted that the order passed by the trial Court is just and proper and requires no interference. He further submitted that in order to fill up the lacuna in the evidence of PW1, present applications were filed before trial Court. Learned counsel for the respondent further submitted that earlier also the plaintiff had filed application for additional list of witnesses, which was allowed. He has not examined all the witnesses out of the said list of witnesses. Now the applications are filed only to 8 protract the proceedings. Hence, he prays for rejection of the writ petition.
14. The suit is for declaration and permanent injunction. Suit is now at the stage of further evidence of plaintiffs. It is the case of the petitioners-plaintiffs that he had paralysis stroke and he had earlier loan transactions which have bearing on the relief sought for in the suit to prove the fraudulent transaction, it is necessary to produce additional list of documents. On perusal of list of documents, it is seen that documents sought to be produced are letter from Bank, Original cancellation deed, sale agreement for the purpose of security dated 01.02.2012 and other medical documents.
15. The trial Court has rejected the applications only on the ground that applications have been filed at belated stage. The relevancy or otherwise of the documents could be ascertained only after completion of 9 evidence and at the time of arguments. As said earlier, the suit is at the stage of further evidence of plaintiffs and evidence of the plaintiffs is not yet closed.
16. Therefore, in my view, taking into consideration the facts and circumstances of the case, there is no delay in filing applications. Looking into the plaint averments and the reasons stated in the affidavit, in my view IA.No.10 deserves to be allowed and accordingly the order dated 10.12.2014 passed on IA.No.10 is set aside. Petitioners are permitted to produce the documents as per list appended to IA.No.10.
17. I.A.Nos.11 is filed under Order XVI, Rules 1 and 2 of CPC seeking leave to produce additional list of witnesses. In the affidavit accompanying application, the petitioner states that the evidence of Hospital Authority is necessary since he had taken treatment for paralysis stroke from St. Mery's Paralytic Centre, 10 Halaga, and further he has sold the Tractor, to show that sale of Tractor and Trailer, it is necessary to examine the RTO authority. Further he submits that Village Accountant is also necessary in view of the certain documents produced along with additional list of documents.
18. On the other hand, learned counsel for the respondent submits that additional list of witness is unnecessarily filed. Earlier also, the such list was filed wherein petitioner's have not examined all the witnesses. But Trial Court by passing order dated 13.08.2015 had rejected the application on the ground that similar application was allowed, but the petitioners have not examined all the witnesses cited in the list of witnesses. The trial Court also observes that the witnesses listed in the list of witnesses are material witnesses for proving contentions of the plaintiffs. When IA No.11 filed for production of documents is 11 allowed, it is necessary to allow the production of list of witnesses. Therefore, the order dated 13.08.2015 passed on IA.No.11 is also set aside and the petitioner is permitted to file additional list of witnesses. To compensate the defendant, a cost of Rs.10,000/- is imposed which shall be payable by the plaintiffs to defendant on the next date of hearing, before the trial Court.
In the above terms, writ petition is disposed of. In view of dismissal of the writ petition, IA.No.1/2018 does not survive for consideration.
Sd/-
JUDGE SB/-