Smt.Sarojamma vs Sri Krishnamurthy on 9 March, 2020

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Karnataka High Court

Smt.Sarojamma vs Sri Krishnamurthy on 9 March, 2020

Bench: S.G. Pandit

                              1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF MARCH 2020

                            BEFORE

        THE HON' BLE MR. JUSTICE S.G. PANDIT

        WRIT PETITION No.5382/2020 (GM-CPC)


BETWEEN:

  1. SMT. SAROJAMMA
     W/O MARIYANAIK B.M.
     AGED ABOUT 63 YEARS
     R/AT BEGAR
     BEGAR VILLAGE, KIGGA HOBLI
     SRINGERI THALUK
     CHIKMAGALORE DISTRICT-577139.

  2. SRI. MADHUSUDANA
     S/O LATE MARIYA NAIK B.M.
     AGED ABOUT 48 YEARS
     R/AT BEGAR
     BEGAR VILLAGE, KIGGA HOBLI
     SRINGERI THALUK
     CHIKMAGALORE DISTRICT-577139.

  3. SRI DEVENDRA
     S/O LATE MARIYA NAIK B.M.
     AGED ABOUT 46 YEARS
     R/AT BEGAR
     BEGAR VILLAGE, KIGGA HOBLI
     SRINGERI THALUK
     CHIKMAGALORE DISTRICT-577139.
                                      ...PETITIONERS

(BY SRI.SAMEER S N, ADV.)
                           2

AND:

  1. SRI. KRISHNAMURTHY
     S/O LATE MARIYA NAIK B M
     AGED ABOUT 44 YEARS
     R/AT BEGAR, BEGAR VILLAGE
     KIGGA HOBLI, SRINGERI THALUK
     CHIKMAGALORE DISTRICT-577139.

  2. SRI. CHETHANA
     W/O SRI KRISHANAMURTHY
     DAUGHTER IN LAW OF
     LATE MARIYA NAIK B.M.
     AGED ABOUT 40 YEARS
     R/AT BEGAR, BEGAR VILLAGE
     KIGGA HOBLI, SRINGERI THALUK
     CHIKMAGALORE DISTRICT-577139.

  3. SRI. CHANDRASHEKARA
     S/O LATE MARIYA NAIK B.M.
     AGED ABOUT 42 YEARS
     R/AT BEGAR, BEGAR VILLAGE
     KIGGA HOBLI, SRINGERI THALUK
     CHIKMAGALORE DISTRICT-577139.

  4. SMT. GIRIJA
     W/O SHESHA NAIK
     D/O MANANAIKA
     BEGAR VILLAGE, KIGGA HOBLI
     SRINGERI THALUK
     CHIKMAGALORE DISTRICT-577139.
                                        ...RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER PASSED BY THE COURT OF THE CIVIL JUDGE AND
JMFC SRINGERI IN O.S.NO.35/2016 ORDER DATED 10.2.2020
PASSED ON IA NO.13, 14 AND 15 UNDER SECTION 151 OF THE
CODE OF CIVIL PROCEDURE AT ANNEXURE-A.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:-
                               3


                          ORDER

The petitioners are before this Court under Article 227 of the Constitution of India aggrieved by the order dated 10.02.2020 passed on I.A.Nos.13 to 15 in O.S.No.35/2016 on the file of Court of Civil Judge and JMFC, Sringeri, by which the applications filed under Section 151 of CPC to re-open the plaintiffs side evidence to lead further evidence, and to condone the delay in filing the witness list on behalf of plaintiff; seeking permission to examine the witness cited in the witness list on behalf of plaintiff side, are rejected.

2. The parties are referred to as per their ranking before the trial Court.

3. The petitioners are plaintiffs 1 to 3 and and respondents are defendants 1 to 4 in O.S.No. 35/2016. The suit is one for declaration that the Gift Deed dated 26.02.2014 is null and void and not binding 4 on the rights of the plaintiffs and for partition of the suit schedule properties and for possession of the same. I.A.Nos.13 to 15 are filed seeking summoning of the Panchayath Development Officer, Begar Panchayath, Panchayath Officer Markal Kigga, Taluk Executive Officer Taluk Panchayath Sringeri. As their evidence would be very much necessary to prove the title of the plaintiffs over the suit schedule property. Hence prays for reopening the plaintiffs side evidence and condone the delay in filing the witness list, thereby issuing summons to the said witness and to permit the plaintiffs to lead their further evidence by examining the said witness.

4. Heard the learned counsel for the petitioners and perused the writ petition papers.

5. Sri. Sameer, learned counsel for the petitioners would submit that the presence of those witnesses would be necessary since those officials have not given 5 proper reply to the plaintiffs request and no information is made available by those officials with regard to change of katha and revenue records. The suit is one for declaration and partition. In a suit for declaration and partition, the witnesses indicated in I.A.No.14 would not be necessary in the facts and circumstances of the case. The trial Court by a reasoned order rejected the application. While rejecting the application it is noted that the plaintiffs have examined themselves and proceeded to mark 53 documents. The oral and documentary evidence on record would be sufficient to decide the issue involved in the suit. When the plaintiffs' prayer is for declaration of gift deed as null and void. Looking to the nature of relief sought Panchayath Development Officer's witness would be of no assistance to decide the issue. When the trial Court has come to the conclusion on examination of the material on record that there is no necessity to summon the witness. There is no reason to interfere with the impugned order 6 passed by the trial Court under Article 227 of the Constitution of India. Accordingly, writ petition stands rejected.

Sd/-

JUDGE NG* CT:bms

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Karnataka High Court