Karnataka High Court
Smt K Neelamma vs Sri. K Mahabaleshwarappa on 15 November, 2012
Author: B.Manohar
Bench: B.Manohar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 15TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
WRIT PETITION No.30582/2008 (GM-CPC)
BETWEEN:
1.SMT.K.NEELAMMA
W/O.K.MAHABALESHWARAPPA
AGE:48 YEARS, OCC:AGRICULTURIST
R/O.BASAVNADURGA
TQ:HOPSPET, DIST.BELLARY
NOW RESIDING AT NO.1349
5-A CROSS, 10TH MAIN
SRINIVAS NAGAR, BSK 1ST STAGE
BANGALORE-560 050.
2. K.PRADEEP
S/O.K.MAHABALESHWARAPPA
AGE:28 YEARS, OCC:SOFTWARE ENGINEER
R/O.BASAVNADURGA
TQ:HOPSPET, DIST.BELLARY
NOW RESIDING AT NO.1349
5-A CROSS, 10TH MAIN
SRINIVAS NAGAR, BSK 1ST STAGE
BANGALORE-560 050.
3.K.PRASHANTH
S/O.K.MAHABALESHWARAPPA
AGE:26 YEARS, OCC:SOFTWARE ENGINEER
R/O.BASAVNADURGA
TQ:HOPSPET, DIST.BELLARY
NOW RESIDING AT NO.1349
5-A CROSS, 10TH MAIN
2
SRINIVAS NAGAR, BSK 1ST STAGE
BANGALORE-560 050. ... PETITIONERS
(BY SRI.MALLIKARJUNA B.HIREMATH, ADV)
AND:
1.SRI K.MAHABALESHWARAPPA
S/O.LATE K.RUDRAPPA
AGE:54 YEARS, OCC:AGRICULTURE
R/O.BASAVANADURGA
TQ:HOSPET, DIST.BELLARY.
2.T.CHINTAMANIYAPPA
S/O.MALLAPPA, AGE:74 YEARS
OCC:AGRICULTURIST
R/O.NAGENAHALLI
TQ.HOSPET, DIST.BELLARY. ... RESPONDENTS
(SRI.S.S.YADRAMI, ADV FOR RESPONDENTS)
++++++++++
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER PASSED BY THE LEARNED CIVIL
JUDGE (JR.DN.), MUDHOL IN ELECTION PETITION NO.1/2007
DATED 16-07-2008 VIDE ANNEXURE-C, AND ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
Petitioners are the plaintiffs in O.S.No.154/2004 being aggrieved by the order dated 14-08-2008 passed by the Principal Civil Judge (Sr.Dn.) and JMFC, Hospet, rejecting the applications I.A.Nos. 5 and 6 have filed this writ petition.
2. The plaintiffs had filed a suit seeking for partition and separate possession of the suit schedule properties. The first plaintiff is the wife and plaintiffs 2 and 3 are the children of the first defendant. It is the specific case of the plaintiffs that the suit schedule properties are the ancestral properties. As per the memorandum of partition dated 19-11-1982, the suit schedule properties were allotted to the share of the first defendant. Hence, the plaintiffs 2 and 3 are entitled for their share in the suit schedule properties. It is their case that alienation of some of the 4 properties by the first defendant without the permission of plaintiffs 2 and 3 is contrary to law.
3. The first defendant entered appearance and filed written statement denying the entire averments made in the plaint and also contended that he has taken the responsibility of educational expenditure of plaintiffs 2 and 3, for which purpose, he has alienated some of the properties and the alienation has been made only for family necessities.
4. On the basis of the pleadings of the parties, the trial Court has framed necessary issues.
5. On behalf of the plaintiffs, the first plaintiff got examined herself as P.W.1 and also examined two other witnesses as P.W.2 and P.W.3. The P.Ws. 1 to 3 were cross-examined by the defendants. When the cross- 5 examination was over, the plaintiffs filed I.A.No.5 seeking for recalling the evidence of P.W.1 and to lead further evidence. I.A.No.6 is filed under Order VII Rule 14 of CPC for production of documents. In support of this application, the plaintiffs have contended that these documents were misplaced at the time of adducing evidence and they could not be marked. Hence, they requested the court to permit them to produce the said documents and to lead further evidence. The said applications were opposed by the first defendant contending that the applications filed by the plaintiffs are not maintainable. The evidence of the first plaintiff has already been completed and she was also cross-examined by the defendants. After long lapse of time, the present applications have been filed in order to fill up the lacuna in their evidence and they cannot be permitted to produce the documents, which are not relevant. The first defendant further contended that the suit is filed for partition of the 6 family properties and the documents, which are sought to be produced are not necessary. Further the plaintiffs cannot be re-examined by reopening their evidence and mark the documents and hence, sought for dismissal of both the applications.
6. The trial Court after considering the matter in detail by its order dated 14-08-2008 rejected both the applications holding that those documents are not relevant in a suit for partition. Being aggrieved by the rejection of I.A.Nos. 5 and 6, the plaintiffs have filed this writ petition.
7. Sri.Mallikarjuna B. Hiremath, learned counsel appearing for the petitioners contended that the order passed by the trial Court is contrary to law. Under Order VII Rule 14 of CPC, the court has power to condone the delay in production of documents. The order passed by the trial Court runs contrary to order VII Rule 14 of CPC. 7 Since some of the relevant documents were misplaced at the time of recording evidence, the plaintiffs could not produce the same along with the plaint. Without these documents, the court cannot effectively decide the suit. The reasoning assigned by the trial Court is contrary to law. Who has incurred educational expenditure of plaintiffs 2 and 3 is the dispute that has to be decided in the suit. Without these documents, the said issue cannot be decided, hence sought for setting aside the order passed by the trial Court.
8. Sri.S.S.Yadrami, learned counsel appearing for the Respondents argued in support of the order passed by the trial Court and contended that there is no infirmity or irregularity in the order dated 14-08-2008 passed by the trial Court rejecting I.A.Nos. 5 and 6. The suit has been filed in the year 2004. In order to drag on the proceedings, the petitioners have filed the present applications and the 8 documents which are sought to be produced are not relevant to decide the dispute in the suit. Hence, sought for dismissal of the writ petition.
9. I have carefully considered the arguments addressed by the parties.
10. The first petitioner is the wife and petitioners 2 and 3 are the children of the first respondent. The petitioners have filed a suit seeking for partition and separate possession of the suit schedule properties contending that they are ancestral properties and without the permission of petitioners 2 and 3, the first respondent has alienated the ancestral properties. However, the defense of the first Respondent is that for the purpose of educational expenditure of petitioners 2 and 3, he has alienated some of the properties and it is only for the legal necessities. He has spent more than Rs.3,00,000/- for the education of 9 petitioners 2 and 3. Only one item of the property i.e. survey No.166/D measuring 2 acres 13 guntas of land has been alienated to discharge the debts. Hence, the petitioners have no right in respect of the properties, which are already alienated for the family necessities. The petitioners have not produced any documents to show that the first petitioner has incurred expenditure towards education of the petitioners 2 and 3 and she has not disclosed the sources of income for the educational expenditure. Further, the documents sought to be produced are not necessary to decide the said issue. Apart from that the first plaintiff's evidence has already been over and she was effectively cross-examined by the defendants. When the matter was posted for evidence of the defendants, the present applications have been filed seeking for reopening of the evidence of P.W.1 and also for production of some documents. I am of the opinion that at this stage, the proceedings cannot be reopened so also to produce the 10 documents. The documents relied upon by the petitioners are not relevant.
11. I find that there is no irregularity or illegality in the order passed by the trial Court. The petitioners have not made out a case to interfere with the same. Accordingly, the writ petition is dismissed.
Sd/-
Judge mpk/-*