Karnataka High Court
Mrs. Vanajakshi T. Naik vs Mrs. Premalatha M. Kamath on 29 January, 2024
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NC: 2024:KHC:3848
WP No. 52858 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 52858 OF 2017 (GM-CPC)
BETWEEN:
1. MRS. VANAJAKSHI T. NAIK
W/O. THIMMAPPA S. NAIK,
AGED ABOUT 66 YEARS,
RESIDING AT 401, KADRI HEIGHTS,
AIRPORT ROAD, YEYYADI,
KONCHADI POST, MANGALORE TALUK,
D.K DISTRICT - 575 007
2. MR. THIMMAPPA S. NAIK,
AGED ABOUT 71 YEARS,
RESIDING AT 401, KADRI HEIGHTS,
AIRPORT ROAD, YEYYADI,
KONCHADI POST, MANGALORE TALUK,
D.K DISTRICT - 575 007
PETITIONERS ARE NOT CLAIMING BENEFITS
CONFERRED TO SENIOR CITIZENS
...PETITIONERS
Digitally
signed by (BY SRI: RAVI SHANKAR SHASTRY .G., ADVOCATE)
PAVITHRA N
Location: high AND:
court of
karnataka 1. MRS. PREMALATHA M. KAMATH
W/O. MOHAN PURUSHOTHAM KAMATH,
AGED ABOUT 73 YEARS,
D/O. SHSILA BAI, RESIDING AT 25/498,
VISHWA DARSHAN, SAMATHA NAGAR,
KANDIVALI (EAST), MUMBAI - 400 101
2. MRS. DAPHNE SHENOY
W/O. LATE. N. SRINIVAS SHENOY,
AGED ABOUT 71 YEARS,
RESIDING AT NO. 9/8, 2ND CROSS,
LIC COLONY, G.H. LAYOUT, 3RD BLOCK,
JAYANAGAR (E), BANGALORE - 560 011
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NC: 2024:KHC:3848
WP No. 52858 of 2017
3. MR. SANDESH SHENOY,
S/O. LATE. N. SRINIVAS SHENOY,
AGED ABOUT 38 YEARS,
RESIDING AT 9/8, 2ND CROSS,
LIC COLONY, G.H LAYOUT, 3RD BLOCK,
JAYANAGAR (E), BANGALORE - 560 011
4. SUPRIYA SHENOY,
D/O. LATE. N. SRINIVAS SHENOY,
AGED ABOUT 31 YEARS,
RESIDING AT 9/8, 2ND CROSS,
LIC COLONY, G.H. LAYOUT, 3RD BLOCK,
JAYANAGAR (E), BANGALORE - 560 011
5. MR. RAMESH ADAPA,
S/O. KOCHANNA ADAPA,
AGED ABOUT 75 YEARS,
RESIDING AT DEVEDATA HOUSE,
AJILAMOGARU POST, MANIKAR VILLAGE,
BANTWAL TALUK, D.K. DISTRICT - 574 219
...RESPONDENTS
(BY SRI: K. PRASAD HEGDE, ADVOCATE FOR R3
R1, 2, 4, 5 - SERVED - UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DTD.25.10.2017 ON I.A.NO.VIII IN O.S.NO.6/2016 PASSED BY THE
LEARNED PRL. SENIOR CIVIL JUDGE AND JMFC, BANTWAL, D.K.
VIDE ANNEX-A AND CONSEQUENTLY I.A.NO.VIII IN O.S.NO.6/2016
BE DISMISSED AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Defendant Nos.2 and 3 in O.S.No.6/2016 on the file of the learned Principal Senior Civil Judge and JMFC, Bantwal, Dakshina Kannada (hereinafter referred to as 'the trial Court' -3- NC: 2024:KHC:3848 WP No. 52858 of 2017 for brevity), are impugning the order dated 25.10.2017, allowing I.A.No.VIII filed under Order XI Rule 1 and 2 of CPC and directing defendant Nos.1 to 3 to answer the interrogatories.
2. Heard Sri Ravi Shankar Shastry G., learned counsel for the petitioners and Sri K. Prasad Hegde, learned counsel for respondent No.3. Perused the materials on record.
3. Learned counsel for the petitioners submitted that the respondents as plaintiffs have filed the suit O.S.No.6/2016 for declaration that the sale deeds executed by Susheela Bai and defendant No.1 are null and void and for permanent injunction against defendant Nos.1 to 3. When the matter was posted for plaintiffs' evidence finally, I.A.No.VIII was filed by the plaintiffs seeking direction to defendant Nos.1 to 3 to answer the interrogatories. The trial Court mechanically proceeded to allow the application directing defendant Nos.1 to 3 to answer the interrogatories regarding the address proof of Susheela Bai as mentioned in the sale deed. The trial Court has not applied its mind to find out as to whether the said interrogatories are relevant for just decision of the case. There -4- NC: 2024:KHC:3848 WP No. 52858 of 2017 is no application of mind. Therefore, prays for allowing the petition and to set aside the impugned order.
4. Per contra, learned counsel for respondent No.3 opposing the petition submitted that it is the specific contention of the plaintiffs that Susheela Bai the mother of the plaintiff died long back on 11.05.1984. She was not alive on 17.10.2013. Therefore, she could not have executed the sale deed in favour of defendant No.1. The death certificate of Susheela Bai was also produced before the trial Court. The defendants have taken several defence in the written statement and contended that it was Susheela Bai who executed the sale deed and there was no impersonation. It is also contended that even if there was impersonation, the plaintiffs could have stated the particulars of impersonation and in its absence, the suit is not maintainable. Therefore, I.A.No.VIII was filed seeking interrogatories to get details of impersonation. The trial Court considered the same and allowed the application. There are no reasons to interfere with the same. Therefore, prays for dismissal of the petition.
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NC: 2024:KHC:3848 WP No. 52858 of 2017
5. The plaintiffs filed the suit for declaration that two sale deeds dated 17.10.2013 and 19.02.2015 are null and void and for permanent injunction. When the matter was fixed for plaintiffs' evidence, instead of leading evidence, the plaintiffs thought of filing IA No. VIII under Order XI Rule 1 and 2 seeking direction for defendant Nos.1 to 3 to answer the interrogatories.
6. The interrogatories furnished by the plaintiffs are; (1) whether Susheela Bai- mother of the plaintiffs was alive as on the date of the sale deed i.e., 17.10.2013, (2) If she was alive, what are the whereabouts and the address of said Susheela Bai and (3) Is there any documents regarding address proof of Susheela Bai.
7. I do not find any relevance of these interrogatories to the decision in the suit by the trial Court. When it is the specific contention of the plaintiffs that Susheela Bai died long back on 11.05.1984 and that they have already produced the death certificate of Susheela bai before the trial Court, it is for the plaintiffs to substantiate such contention since they are seeking declaration that the sale deed said to have been -6- NC: 2024:KHC:3848 WP No. 52858 of 2017 executed by Susheela Bai is null and void on that particular ground. Simply because the defendants have taken some defence in the written statement, the interrogatories referred to in the application which are unnecessary and irrelevant could not have been accepted by the trial Court without application of mind. When it is the specific contention of the defendants that Susheela Bai was very much alive as on the date of the sale deed i.e., on 17.05.2013 executing the sale deed in favour of defendant No.1 and when her address is mentioned in the registered sale deed relied on by them, I am of the opinion that the interrogatories referred to in the application are wholly unnecessary and they will not give any result. Unfortunately, the trial Court allowed the said application solely on the ground that since defendant No.1 got executed the sale deed from Susheela Bai, he will be in a position to furnish her address. When admittedly Susheela Bai is the mother of first plaintiff, it is for her to prove her contention as taken in the plaint, instead he cannot seek such interrogatories to be answered by defendant Nos.1 to 3. Hence, I am of the opinion that the impugned order is liable to be set aside. Accordingly, I proceed to pass the following;
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NC: 2024:KHC:3848 WP No. 52858 of 2017 ORDER i. Writ petition is allowed.
ii. The impugned order dated 25.10.2017 passed in O.S.No.6/2016 by the learned Principal Senior Civil Judge and JMFC, Bantwal, Dakshina Kannada, allowing I.A.No.VIII filed by the plaintiffs under Order XI Rule 1 and 2 of CPC, is set aside. Consequently, I.A.No.VIII is dismissed.
Sd/-
JUDGE PN List No.: 1 Sl No.: 14