Karnataka High Court
Bujang And Ors vs Anita And Ors on 3 April, 2024
Author: V Srishananda
Bench: V Srishananda
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WP No. 203637 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
WRIT PETITION NO. 203637 OF 2020 (GM-CPC)
BETWEEN:
1. BUJANG S/O VITHOBA HINGOLI,
DIED BY LRS.,
A) JYOTIBA S/O BUJANG HINGOLI
AGE: 57 YEARS, OCC: AGRICULTURE
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA
B) SAMBAJI S/O BUJANG HINGOLI
AGE: 37 YEARS, OCC: AGRICULTURE
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA
Digitally signed C) SUMITRA W/O NIVTRARI CHAVAN
by RENUKA
AGE: 34 YEARS, OCC: HOUSEHOLD WORK
Location: High
Court Of R/O GULAGNJIHAL TQ: JATH
Karnataka DIST: SANGLI
(MAHARASHTRA STATE)
D) SATYABHAMA W/O SHIVAJI CHAVAN
AGE: 42 YEARS, OCC: HOUSEHOLD WORK
R/O DYABERI TQ: DIST: VIJAYAPURA.
E) PRAKASH S/O BUJANG HINGOLI
AGE: 32 YEARS OCC: AGRICULTURE
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA
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2. SHIVAJI S/O VITHOBA HINGOLI
DEAD BY LR'S.,
A) RENUKABAI W/O SHIVAJI HINGOLI
AGE: 62 YEARS, OCC: HOUSEHOLD WORK
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA.
B) KHEDARI S/O SHIVAJI HINGOLI
AGE: 40 YEARS, OCC: AGRICULTURE
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA.
C) KRISHNA S/O SHIVAJI HINGOLI
AGE: 34 YEARS, OCC: AGRICULTURE
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA.
D) SAKUBAI W/O BALASAB KANASE
AGE:34 YEARS, OCC: H.H WORK
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA.
E) JYOTIBA W/O SHIVAJI HINGOLI
AGE:32 YEARS, OCC: AGRICULTURE
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA.
F) MAHADEV S/O SHIVAJI HINGOLI
AGE:30 YEARS, OCC: AGRICULTURE
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA.
G) SAVITRI W/O ISHWAR BURADE
AGE: 26 YEARS, OCC: H.H.WORK
R/O TELASANG TQ: ATHANI
DIST: BELGAVI
H) VITHOBA S/O SHIVAJI HINGOLI
AGE:26 YEARS, OCC: AGRICULTURE
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA.
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I) RANGANATH S/O SHIVAJI HINGOLI
AGE:24 YEARS, OCC: AGRICULTURE
R/O BALLAOOR TQ: BASAVANA BAGEWADI
DIST: VIJAYAPURA.
3 KASHINATH S/O VITHOBA HINGOLI
AGE: 67 YEARS, OCC: BUSINESS AND
AGRICULTURE,
R/O: SANGOLI RAYANNA COLONY,
B. BAGEWADI,
TQ: B. BAGEWADI, DIST: VIJAYAPURA.
...PETITIONERS
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
1. ANITA W/O GANESH SALUNKE,
AGE: 40 YEARS, OCC: H.H. WORK,
R/O: ARALIKATTI, B. BAGEWADI,
TQ: B. BAGEWADI,
DIST: VIJAYAPURA-586203.
2. PRADEEP S/O GANESH SALUNKE
AGE: 25 YEARS, OCC: COOLIE,
R/O: ARALIKATTI, B. BAGEWADI,
TQ: B. BAGEWADI,
DIST: VIJAYAPURA-586203.
3. LAXMIBAI W/O VASANT KADAM
AGE: 78 YEARS, OCC: H.H. WORK,
R/O: MIRDE GALLI, VIJAYAPURA-586101.
4. ARUN S/O VASANT KADAM
AGE: 58 YEARS, OCC: BUSINESS,
R/O: MIRDE GALLI, VIJAYAPURA-586101.
DIED BY LRS.,
A) SUREKHA W/O ARUN KADAM
AGE: 50 YEARS OCC: H.H. WORK
R/O NEAR LAVANGIRI MATH,
SHAHU NAGAR, VIJAYAPURA.
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B) SHAMBHAVI D/O ARUN KADAM
AGE: 21 YEARS OCC: STUDENT
R/O NEAR LAVANGIRI MATH,
SHAHU NAGAR, VIJAYAPURA.
C) VAIBHAVI D/O ARUN KADAM
AGE: 19 YEARS OCC: STUDENT
R/O NEAR LAVANGIRI MATH,
SHAHU NAGAR, VIJAYAPURA.
D) VAISHNAVI D/O ARUN KADAM
AGE: 17 YEARS,
MINOR UNDER THE GUARDIANSHIP
SUREKHA W/O ARUN KADAM
R/O NEAR LAVANGIRI MATH,
SHAHU NAGAR, VIJAYAPURA.
E) ANUSHREE D/O ARUN KADAM
AGE: 14 YEARS,
MINOR UNDER THE GUARDIANSHIP
SUREKHA W/O ARUN KADAM
R/O NEAR LAVANGIRI MATH,
SHAHU NAGAR, VIJAYAPURA.
F) VEDANATH S/O ARUN KADAM
AGE: 11 YEARS,
MINOR UNDER THE GUARDIANSHIP
SUREKHA W/O ARUN KADAM
R/O NEAR LAVANGIRI MATH,
SHAHU NAGAR, VIJAYAPURA.
5. SULOCHANA W/O RAMESH SALUNKE
AGE: 53 YEARS, OCC: TEACHER,
R/O: BHAVASAR NAGAR, VIJAYAPUR-586101.
6. JIJABAI W/O JYOTIBA SALUNKE
AGE: 50 YEARS, OCC: H.H. WORK,
R/O: NEAR NAGAR VANA, PWD QUARTERS,
BAGALKOT,
TQ: DIST: BAGALKOT-587101.
7. SUVARNA W/O RAM BHANDARI
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AGE: 43 YEARS, OCC: ANGANWADI TEACHER,
R/O: NEAR LAL BANGAULOW, KHADI BANDAR,
VIJAYAPURA-586101.
8. SNEHALATHA W/O SHIDDESHWAR PUJARI
AGE: 39 YEARS, OCC: TEACHER
R/O NEAR SHIVANUBHAV MANTAP, JATH
TQ: JATH, DIST: SANGLI
(MAHARASTRA STATE)-416404
9. GUNABAI W/O RAVUBA HINGOLI
AGE : 70 YEARS, OCC: H.H. WORK
R/O BALLAOOR TQ: B.BAGEWADI,
DIST: VIJAYAPURA-586203.
10. GANGADHAR S/O RAVUBA HINGOLI
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O BALLAOOR, TQ: B.BAGEWADI,
DIST: VIJAYAPURA-586203
11. GANGABAI W/O PUNDALIK KANASE
AGE: 45 YEARS, OCC: H.H. WORK,
R/O KODAGANUR, TQ: B.BAGEWADI,
DIST: VIJAYAPURA-586203
12. RAMACHANDRA S/O RAVUBA HINGOLI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O BALLAOOR, TQ: B.BAGEWADI,
DIST: VIJAYAPURA-586203.
13. PUNDALIK S/O RAVUBA HINGOLI
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O BALLAOOR, TQ: B.BAGEWADI,
DIST: VIJAYAPURA-586203.
14. LALITA D/O RAVUBA HINGOLI
AGE: 38 YEARS, OCC: H.H.WORK
R/O BALLAOOR, TQ: B. BAGEWADI,
DIST: VIJAYAPURA-586203
15. SIDRAM S/O VITHOBA HINGOLI
AGE: 65 YEARS, OCC: AGRICULTURE,
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R/O BALLAOOR, TQ: B. BAGEWADI,
DIST: VIJAYAPURA-586203
...RESPONDENTS
(BY SRI. RAVINDRA REDDY, ADVOCATE FOR R1 AND R2;
SRI S.B.HANGARKI, ADVOCATE FOR R5 TO R8;
V/O DATED 4/10/2023 R5 TO R8 ARE TREATED AS LRS.,
OF DECEASED R-3;
SRI SUBODH T. DHARWADKAR, ADVOCATE FOR
R4(A) TO R4(F)
R4(D) TO R4 (F) ARE MINOR U/G OF R4 (A);
V/O DATED 29/1/ 2021 NOTICE TO R9 TO R15 EXEMPTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER
DATED 17.12.2019 ON I.A.NO.XV, XVI AND XVII PASSED IN
O.S.NO.142/2013 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, BASAVANA BAGEWADI AS PER ANNEXURE-J AND
ACCORDINGLY PERMIT THE PETITIONERS TO LEAD THE
EVIDENCE OF PROPOSED WITNESS ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel Sri Vinayak Apte for the petitioners, learned counsel Sri Ravindra Reddy for respondent Nos.1 and 2, learned counsel Sri S.B. Hangarki for respondent Nos.5 to 8 and learned counsel Sri Subhodh T. Dharwadkar for respondent Nos.4(a) to 4(f).
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2. The writ petition is filed with the following prayers:
"a) To issue a writ of certiorari quashing the impugned order dated 17.12.2019 on I.A.No.XV, XVI and XVII passed in O.S.No.142/2013 on the file of Senior Civil Judge and JMFC, Basavana Bagewadi as per Annexure-J and accordingly permit the petitioners to lead the evidence of proposed witness, in the interest of justice and equity.
b) Issue any other order or directions as this Court deems fit in view of the facts and circumstances of the case as mentioned above in the interest of justice and equity."
3. The facts of the case in brief are as under:
A suit came to be filed in O.S.No.142/2013 for the relief of declaration and injunction declaring that the plaintiffs are the owners in possession of the suit properties of Basavana Bagewadi taluka and consequential relief of injunction against the defendants.
4. The suit is being contested and when the matter stood for arguments of both sides, three -8- NC: 2024:KHC-K:2818 WP No. 203637 of 2020 applications have been filed by the plaintiffs to reopen the site and to examine an additional witness by name Shaikhsab S/o. Nabilal Nadaf. The affidavits filed in support of said applications reveal that one Putalabai, who was married to Bandurao Pawar left the company of Bandurao and started living with the proposed witness Shaiksab and one Jainabi was born in the said relationship.
5. The applications on contest came to be rejected by order dated 17.12.2019. Being aggrieved by the same, the present writ petition is filed.
6. The learned counsel for the petitioners reiterating the grounds urged in the writ petition contended that the order passed by the Trial Judge, Basavana Bagewadi on I.A.Nos.XV, XVI and XVII is suffering from legal infirmity and sought for allowing the writ petition. He further contended that the plaintiffs want to examine the biological father of Jainabi, which has got a bearing on the merits of the matter and therefore, applications ought to have been allowed. -9-
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7. Per contra, the learned counsel appearing for the contesting respondents contended that if the fact of Jainabi being born to the proposed witness is within the knowledge of the plaintiffs, what prevented them to file an application at an earlier point of time is the question that remains unanswered. Nor any foundation is made either in the evidence of the plaintiffs or in the pleadings to the effect that biological father of Jainabi, who is the proposed witness and therefore, as an afterthought the applications came to be filed, which have been rightly appreciated by the Trial Court and sought for dismissal of the writ petition.
8. In the light of the rival contentions of the parties, this Court perused the material on record meticulously.
9. The contention of the petitioners have been addressed to by the learned Trial Judge in paragraph No.17 of the impugned order in a clear and categorical
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NC: 2024:KHC-K:2818 WP No. 203637 of 2020 terms. For the sake of ready reference, paragraph No.17 is culled out hereunder:
"17. In the instant case, it can be seen that both the sides concluded their evidence on 28 11 2019, case was posted for argum from 29 11 2019 One adjournment was taken by the counsel for the plaintiff to argue the matter Then on 02 12 2019 these applications filed seeking for re opening of the case and issuance of the summons the witness It can be seen that suit is filed by the plaintiff during year 2013. 11 the evidence of the said witness was very much necessary then the plaintill could have filed the said list soon after the issues we framed As per the plaint averments also it reveals that Putalabhai away with one Sheikhsab and got converted to muslim religion and w renamed as Bismilla All these facts were within the knowledge of that plaintiffs Then the plaintiffs could have very well filed witness list soon after the issues or at the time of their further evidence No such efforts were made by the plaintiffs Now when after conclusion of evidence of both the sides when the matter set up for the argument these applications are filed. The I.A. filed on behalf of plaintiffs are highly belated, they are not sustainable. There are no reasonable grounds made out in these interim applications as to what made the plaintiff not to cite this witness at the earlier stage. There are no
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NC: 2024:KHC-K:2818 WP No. 203637 of 2020 sustainable grounds made out in these applications for re-opening of the case. Moreover, the rations laid down by the counsel for the defendant clearly reveals that, such interim application are not tenable in law. By looking into the fact that, these applications are filed and subsequently time was taken for arguments of these I.A.s clearly reveals in order to drag on the proceedings these interim applications are filed by the plaintiffs side. Hence, under these circumstances, I.A.XV to XVII are deserves to be rejected with the compensatory cost. Hence, I.As are not sustainable. My findings on the above points are in the negative.".
10. On perusal of the reasoning assigned by the learned Trial Judge in paragraph No.17 supra, it is crystal clear that the contention of the writ petitioners has been properly appreciated by the learned Trial Judge in the light of the material available on record and rightly rejected the applications.
11. Accordingly, no case is made out to exercise the supervisory jurisdiction by this Court in setting aside the impugned order.
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12. Hence, the following order is passed:
ORDER The writ petition being devoid of merits and accordingly, the same is dismissed.
Sd/-
JUDGE SRT CT-SI LIST NO.: 1 SL NO.: 25