Karnataka High Court
Faiz Mohammed Khan, vs Zubida Bee D/O Abdul Jabbar Khan Arani, on 4 October, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 4th DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIM
WRIT PETITION NO. 66042/2012(GM-CPC)
BETWEEN:
FAIZ MOHAMMED KHAN,
S/O ABDUL JABBAR KHAN ARANI,
AGE:76 YEARS, OCC:AGRICULTURE & BUSINESS
R/O: RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI.
... PETITIONER
(By Sri.: S S PATIL : MAHANTESH R PATIL, ADVS.)
AND:
1. ZUBIDA BEE, D/O ABDUL JABBAR KHAN ARANI,
AND W/O. SABJAN SAB SIHIGAON,
AGE: 80 YEARS, OCC: AGRICULTURE,
R/O: SUBHASHNAGAR, HUBLI,
TQ: HUBLI, DIST: DHARWAD.
2. HYDAR ALI KHAN
S/O ABDUL JABBAR KHAN ARANI,
SINCE DECEASED BY HIS LR S.,
2
2a. FATIMA BI W/O HYDERALI KHAN ARANI,
AGE: 71 YEARS, OCC: HOUSEHOLD,
R/O: WARD NO. 1, FIAZ COMPOUND,
NEAR MANVI CO, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2b. ALLA NOOR KHAN
S/O HYDERALI KHAN ARANI,
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O: WARD NO. 1, FIAZ COMPOUND,
NEAR MANVI CO, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2c. RIYAZ AHMED KHAN S/O HYDERALI KHAN,
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O: WARD NO. 1, FIAZ COMPOUND,
NEAR MANVI CO, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2d. LIYAKAT ALI KHAN
S/O HYDER ALI KHAN ARANI,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O: WARD NO. 1, FIAZ COMPOUND,
NEAR MANVI CO, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2e. SALAMA KHANUM
D/O HYDER ALI KHAN ARANI,
W/O ABDUL SATTAR MULLA,
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O: 4TH CROSS, MRUTYUNJAYA NAGAR,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI.
3
2f. TASLEEM KHANUM
D/O HYDER ALI KHAN ARANI,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O: MUSLIM STREET, SIRSI,
DIST: KARWAR.
2g. ZAFURULLA KHAN
S/O HYDER ALI KHAN ARANI,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: WARD NO. 1, FAIZE COMPOUND,
NEAR MANVI COMPANY, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2h. KAUSAR KHANUM
D/O HYDER ALI KHAN ARANI,
AGE: 43 YEARS, OCC: BUSINESS,
R/O: WARD NO. 1, FAIZE COMPOUND,
NEAR MANVI COMPANY, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2i. ABDUL GAFFAR KHAN
D/O HYDER ALI KHAN ARANI,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: WARD NO. 1, FAIZE COMPOUND,
NEAR MANVI COMPANY, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2j. ABDUL MATHEN KHAN
S/O HYDER ALI KHAN ARANI,
AGE: 67 YEARS, OCC: HOUSEHOLD,
R/O: MUSLIM STREET, SIRSI,
DIST: KARWAR.
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2k. SABIHA KHANUM
S/O HYDER ALI KHAN ARANI,
AGE: 35 YEARS, OCC: STUDENT,
R/O: WARD NO. 1, FAIZE COMPOUND,
NEAR MANVI COMPANY, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2l. ZUBAIR AHMED KHAN
S/O HYDER ALI KHAN ARANI,
AGE: 28 YEARS, OCC: STUDENT,
R/O: WARD NO. 1, FAIZE COMPOUND,
NEAR MANVI COMPANY, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2m. SAFARZ AHMED KHAN
S/O HYDER ALI KHAN ARANI,
AGE: 32 YEARS, OCC: STUDENT,
R/O: WARD NO. 1, FAIZE COMPOUND,
NEAR MANVI COMPANY, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2n. RAFIYA KHANUM
D/O HYDER ALI KHAN ARANI,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O: WARD NO. 1, FAIZE COMPOUND,
NEAR MANVI COMPANY, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2o. ZAMEER AHMED KHAN
S/O HYDER ALI KHAN ARANI,
AGE: 30 YEARS, OCC: STUDENT,
R/O: WARD NO. 1, FAIZE COMPOUND,
NEAR MANVI COMPANY, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
5
3. NAZARULLA KHAN
D/O ABDUL JABBAR KHAN ARANI,
AGE: 66 YEARS, OCC: BUSINESS,
R/O: WARD NO. 1, FAIZE COMPOUND,
NEAR MANVI COMPANY, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
4. REHAMAN KHAN D/O HYDER ALI KHAN ARANI,
SINCE DECEASED BY HIS LRS,
4a. SAYEEDA KHANUM W/O REHAMAN KHAN,
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O: NEAR HOUSE OF HIREGOUDA,
MRUTUNJAYA NAGAR, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
4b. RUKSANA KHANUM D/O REHAMAN KHAN,
AGE: 36 YEARS, OCC: STUDENT,
R/O: NEAR HOUSE OF HIREGOUDA,
MRUTYUNJAYA NAGAR, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
4c. FATIMA KHANUM D/O REHAMAN KHAN,
AGE: 33 YEARS, OCC: STUDENT,
R/O: NEAR HOUSE OF HIREGOUDA,
MRUTYUNJAYA NAGAR, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
4d. MANZOOR AHMED KHAN
S/O REHAMAN KHAN,
AGE: 32 YEARS, OCC: STUDENT,
R/O: NEAR HOUSE OF HIREGOUDA,
MRUTYUNJAYA NAGAR, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
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4e. FARAHANA KHANUM D/O REHAMAN KHAN,
AGE: 29 YEARS, OCC: STUDENT,
R/O: NEAR HOUSE OF HIREGOUDA,
MRUTYUNJAYA NAGAR, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
5. AMANULLA KLHAN
S/O ABDUL JABBAR KHAN ARANI,
AGE: 62 YEARS, OCC: BUSINESS,
R/O: WARD NO. 1, PATIL COMPOUND,
NEAR ANGLO URDU HIGH SCHOOL,
RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
6. ABDUL KAREEM KHAN
S/O ABDUL JABBAR KHAN ARANI,
AGE: 60 YEARS, OCC: BUSINESS,
R/O: 2ND CROSS, CHOWDESHWARI NAGAR,
RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
7. PYARI JAN @ FARTHATHUNNISA
D/O ABDUL JABBAR KHAN ARANI,
W/O MAQSOOD AHMED
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: NO. 12, 15TH A CROSS ITI LAY OUT,
BENSEN TOWN, BANGALORE-560001.
8. SALIHA KHANUM
D/O ABDUL JABBAR KHAN ARANI,
W/O ABDUL NAZEER SAIT
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: MADAGAON, STATE: GOA.
... RESPONDENTS
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(By Sri. G. K. Hiregoudar, Adv. for R2b & R4d,
Sri. S. N. Banakar, Adv. for R3, R5 and R6,
Other respondents - served & unrepresented)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDA
PRAYING TO QUASH THE ORDER DATED:23/07/2012
PASSED BY THE ADDITIONAL CIVIL JUDGE (SR.DN.)
AND JMFC RANEBENNUR, ON I.A. NO.16 IN O.S.
NO.8/2004 PRODUCED AT ANNEXURE-D.
THIS PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is the plaintiff in a suit filed by him seeking partition of the properties described in schedule thereto describing it as a joint family property amenable to partition amongst them according to Mohammedan law.
2. In the suit, respondents/defendants have filed written statement leading to framing of issues and case is set down for enquiry. During enquiry, the 8 plaintiff could not complete his evidence and thereafter, filed an application under Section 151 of CPC on 23.07.2012, seeking permission to lead additional evidence. The application is opposed seriously by the respondents, consequent to which, the learned trial Judge has rejected it only on the ground that the case is pending for about seven years and therefore, grant of such opportunity may procrastinate the proceedings.
3. No doubt conduct of the parties is of relevance, but the legal right which the party has in a proceeding must necessarily be taken notice of. In the present case, the parties are seeking division of properties and in view of the defence taken by the defendants questioning his right, he wants to lead additional evidence. Therefore, the trial Court should 9 have considered the request rather dismissing it only on the ground that case is pending for seven years.
4. Hence the impugned order is quashed. The application is allowed. The petitioner is permitted to lead additional evidence subject to condition that he shall do so within a period of two weeks after receipt of copy of the order before the trial Court. In leading further evidence, he may produce such additional documents and furnish list of witnesses. Considering time consumed, the petitioner is directed to pay cost to the respondent at Rs.1,500/-.
Sd/-
JUDGE gab/-