Karnataka High Court
Jayashree W/O. Girigouda Goudar vs Girigouda S/O. Sanganabasappagouda on 17 February, 2014
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
WRIT PETITION NOS.102435/2014
& 102966-2967/2014 (GM-CPC)
BETWEEN
1. SMT. JAYASHREE W/O. GIRIGOUDA
GOUDAR, AGE: 37 YEARS,
OCC: AGRICULTURE & HOUSEHOLD
WORK, R/O. TURAMARI VILLAGE,
TQ: HUNGUND, DIST: BAGALKOT
2. MISS. SHAMBHAVI D/O. GIRIGOUDA
GOUDAR, AGE: 17 YEARS,
OCC: STUDENT,
R/O. TURAMARI VILLAGE,
TQ: HUNGUND, DIST: BAGALKOT
3. MISS. SHEELA D/O. GIRIGOUDA
GOUDAR, AGE: 14 YEARS,
OCC: STUDENT
R/O. TURAMARI VILLAGE,
TQ: HUNGUND, DIST: BAGALKOT
4. MISS. SANGEETA D/O. GIRIGOUDA
GOUDAR, AGE: 08 YEARS,
OCC: STUDENT
R/O. TURAMARI VILLAGE,
TQ: HUNGUND, DIST: BAGALKOT
5. GANESH S/O. GIRIGOUDA
GOUDAR, AGE: 12 YEARS,
OCC: STUDENT
R/O. TURAMARI VILLAGE,
2
TQ: HUNGUND, DIST: BAGALKOT
PETITIONERS 2 TO 5 BEING MINORS ARE
REPRESENTED BY NEXT FRIEND AND
THEIR GUARDIAN, THE PETITIONER-1,
SMT. JAYASHREE W/O. GIRIGOUDA
GOUDAR, AGE: 37 YEARS,
OCC: AGRL. & HOUSEHOLD WORK,
R/O. TURAMARI VILLAGE,
TAL. HUNGUND, DIST. BAGALKOT.
... PETITIONERS
(By Sri. A.T.SAVANUR, ADV.)
AND
1. GIRIGOUDA S/O. SANGANABASAPPAGOUDA
GOUDAR, AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O. TURAMARI VILLAGE
TQ: HUNGUND, DIST: BAGALKOT
2. SRI. VEERESH S/O. HANAMANTARAYA
BAGEWADI, AGE: 30 YEARS,
OCC: ADVOCACY, R/O. MUDDEBIHAL,
DIST: BIJAPUR
... RESPONDENTS
(By Sri. S.C. HIREMATH FOR R.2.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
COMMON ORDER DATED 25.01.2014, FILED AT ANNEXURE-N,
PASSED ON I.A.NOs.12, 13 & 14, FILED IN O.S.NO.42/2012, ON
THE FILE OF THE LEARNED SENIOR CIVIL JUDGE, HUNGUND
AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING :
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ORDER
Plaintiffs in O.S.No.42/2012 on the file of the Senior Civil Judge and JMFC, Hungund have preferred these writ petitions seeking a writ of Certiorari to quash the order - Annexure `N' dt. 25-1-14 in rejecting I.A.Nos. 12, 13 and 14 filed by them under Order 7 Rule 14 of CPC for production of certain documents, under Sec. 151 of CPC for re-opening of the case and under Order 18 Rule 17 of CPC for recalling P.W.1.
2. The learned Counsel for the petitioners submits, petitioners are wife and children of first respondent whose whereabouts is not known since long time. Second respondent claims to have purchased some of the items of the suit property from the first respondent. Therefore plaintiffs have filed a suit for partition and separate possession of their share in the suit property. Only recently, that too after conclusion of the evidence, petitioners have traced certain revenue records wherein 4 mutation entry was transferred into the name of first respondent from the name of elders of the family. Therefore they are necessary to prove the contention of the plaintiffs that the suit properties are their ancestral properties as against the contention of the second respondent that the suit properties were self acquired properties of the first respondent and he had every right to sell the same and accordingly he had sold the suit property in favour of the second respondent. Therefore petitioners have filed I.A.No.12 under Order 7 Rule 14 of CPC seeking permission of the trial Court to produce the said mutation entries and RORs and I.A.No.13 under Sec. 151 of CPC for re-opening of the case and I.A.No.14 under Order 18 Rule 17 of CPC to recall P.W.1. The trial Court after considering the I.As. has committed an error in dismissing the applications. Hence, he prays for allowing the writ petitions and setting aside the impugned order. 5
3. Whereas, learned Counsel for the contesting second respondent who is second defendant in the suit submits, those documents were well within the knowledge of the plaintiffs at the time of filing of the suit itself and second respondent has purchased 3 items of the suit property from the first defendant prior to filing of the suit. The plaintiffs having no case on merits, have been dragging on the proceedings with an intention to harass this respondent. Applications are filed after case was posted for reply arguments of the plaintiffs. The trial Court considering this has rightly rejected the applications. As such, there is no infirmity in the order of the trial Court warranting interference of this Court. Therefore, he prays for dismissal of the writ petitions.
4. Plaintiffs are wife and children of first defendant. Second defendant claims to have purchased the suit schedule property just one month prior to filing of the suit. Suit properties are agricultural lands and house 6 property. Suit is for partition and separate possession of the share of the plaintiffs in the suit property. First defendant is not contesting the suit. Suit is resisted by the second defendant contending that properties purchased by him are the self acquired properties of the first defendant and the suit as brought by the plaintiffs for partition and separate possession is not maintainable. Whether suit properties are the self acquired properties of the first defendant or not is the main issue which is to be decided and to the said issue the documents sought to be produced by the plaintiffs under I.A.No.12 filed under Order 7 Rule 14 of CPC which are mutation entries and RORs wherein revenue records are stated to have been transferred into the name of the first defendant from the names of the elders of his family are very much necessary. 7
5. Of course the plaintiffs supposed to have produced these documents at the time of institution of the suit or at least before commencement of the trial. Now plaintiffs want to produce these documents after the case was posted for reply arguments of the plaintiffs and there is lapse and laches on the part of the plaintiffs in filing I.A.Nos. 12, 13 and 14. For the said lapse and laches on the part of the plaintiffs second defendant who claims to be the bonafide purchaser of the suit properties cannot be made to suffer and he is required to be compensated for the delay and lapse on the part of the plaintiffs. It is not that these documents were not at all available. They are all public documents very much available in the Revenue Department. If the plaintiffs had put little more efforts, they could have secured these documents even at the time of trial. Therefore, justice would be met if I.As. are allowed on some terms.
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6. Accordingly writ petitions are allowed. Impugned order at Annexure `N' passed on I.A.Nos. 12, 13 and 14 is set aside and I.A.Nos. 12, 13 and 14 are allowed. Plaintiffs are permitted to produce the documents sought to be produced under I.A.No.12 filed under Order 7 Rule 14 of CPC. The case is reopened as sought under I.A.No.13 filed under Sec. 151 of CPC and P.W.1 is recalled as requested under I.A.No. 14 filed under Order 18 Rule 17 of CPC and plaintiffs are permitted to lead evidence. It is made clear, plaintiffs should produce and lead evidence without seeking unnecessary adjournment subject to payment of cost of Rs.10,000/- to the second defendant. Plaintiffs are not permitted to examine any other witness other than P.W.1. Defendants shall cross examine P.W.1 on the very same day, if not possible on the next date of hearing.
SD/-
JUDGE Mgn/-