Karnataka High Court
Sadashiva Dhondiba Khade vs Dhondiba Bhima Khade on 10 January, 2013
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGH COURT OF KARNA TAKA
CIRCUIT BENCH AT DHARWAD
DATED TH IS THE 10 T H DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUS TICE SUBHASH B. ADI
WRIT P ETI TION NO.61009/2012 (GM-CPC)
BETWEEN:
SADASHIVA DHONDIBA KHADE
AGE: 50 YEARS , OCC: AGRICULTU RE,
R/O. KANAGALA, TQ : HUKKERI,
DIST: BELGAUM.
... PETITIONER
(BY SRI SRINAND A. PACHHAPURE)
AND
1. DHONDIBA BHIMA KHADE
AGE: 80 YEARS , OCC: AGRICULTU RE,
R/O. KANAGALA, TQ : HUKKERI,
DIST: BELGAUM.
2. RATNABAI KOM DHONDIBA KHADE
AGE: 75 YEARS , OCC: HOUSEHOLD WORK,
R/O. KANAGALA, TQ : HUKKERI,
DIST: BELGAUM.
3. PARVA TI KOM MAHADEV KHADE
AGE: 44 YEARS , OCC: SERVICE,
R/O. KANAGALA, TQ : HUKKERI,
DIST: BELGAUM.
4. KUMARI. SAVITA D/O. MAHADEV KHADE
AGE: 25 YEARS , OCC: S TUDENT
R/O. KANAGALA, TQ : HUKKERI,
DIST: BELGAUM.
2
5. KUMARI. ANJANA D/O. MAHADEV KHADE
AGE: 23 YEARS , OCC: S TUDENT
R/O. KANAGALA, TQ : HUKKERI,
DIST: BELGAUM.
6. KUMARI. NIRMALA D/O. MAHADEV KHADE
AGE: 21 YEARS , OCC: S TUDENT
R/O. KANAGALA, TQ : HUKKERI,
DIST: BELGAUM.
7. KUMARI. KAMALA D/O. MAHADEV KHADE
AGE: 18 YEARS , OCC: S TUDENT
R/O. KANAGALA, TQ : HUKKERI,
DIST: BELGAUM.
8. KUMARI. ASHWINI D/O. MAHADEV KHADE
AGE: 16 YEARS , OCC: S TUDENT
M/G. REPT. BY HER NA TURAL GUARDIAN
PETITIONER NO .3,
R/O. KANAGALA, TQ : HUKKERI,
DIST: BELGAUM.
... RESPONDENTS
(BY SRI A.L.SANDRIMANI AND S RI SANTOSH B. RAWOO T,
ADVOCATES, FOR R.3,
R.4 TO R.7 - SERVED ,
R.8 - MINOR REPTD. BY R.3.)
THIS WRIT PETITION IS F ILED UNDER A RTICLES
226 AND 227 OF THE CONS TITU TION OF INDIA , PRAYING
TO S ET ASIDE THE ORDER DA TED 05/12/2011 PASSED
BY THE COURT OF SENIOR CIVIL JUDGE, HUKKERI, IN
F.D.P.NO.3/2008, MARKED AT ANNEXURE-K AND
CONSEQUENTLY ALLOW TH E I.A .NO.5 F ILED BY TH E
PETITIONER, ETC.,.
THIS PETITION COMING ON FOR ORDERS , TH IS
DAY, THE COURT MADE TH E FOLLOWING ORDER.
3
ORDER
Memo is filed for treating R.3 to R.8 as L.Rs of deceased respondents No.1 and 2. Memo is allowed. Learned counsel for the petitioner to amend the cause title accordingly.
2. Petitioner has called in question the order dated 5.12.2011, in FDP No.3/2008, (there is typographical mistake in the order) on the file of Senior Civil Judge, Hukkeri.
3. Petitioner had filed an application under Order 7 Rule 14(1-A) read with Section 151 of CPC for permission to produce the documents on the ground that they are necessary for adjudication of the final decree proceedings. The additional documents sought to be produced by the petitioner stated to be a will bequeathing the properties by the testator. Since the Will was disputed, it was required to be proved in accordance with law. 4 Accordingly the Court below instead of rejecting the application without going into merits, has rejected the application by considering the merits of the case.
4. Learned counsel for the petitioner submits, if the petitioner has to file a separate suit for declaration, the observations made by the Court below would have a bearing on the suit that is to be filed by the respondent. Hence seeks for the clarification on the same.
5. Since the petitioner is at liberty to file a suit for declaration in pursuance of the will stated to have been executed in favour of the petitioner, any observation made by the Court below in FDP No.3/2008 while disposing of I.A.No.5 by order dated 5.12.2011 shall not have any bearing on the suit that would be filed by the petitioner and the Court dealing with the suit shall decide the same 5 independently on its merits. With this observation the petition stands disposed of.
SD/-
JUDGE Mrk/-