Karnataka High Court
Sri. Shrikanth N S vs K Munivenkatappa on 30 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:22703
WP No. 3092 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 3092 OF 2022 (GM-CPC)
BETWEEN:
1. SRI. SHRIKANTH N S
S/O LATE N. SAMPANGIRAMAIAH
AGED ABOUT 52 YEARS,
R/AT SHREE VINAYAKA MEDICALS
TALUK PANCHAYATH
COMMERCIAL COMPLEX
OPPOSITE TO KSRTC BUS STAND
MALUR TOWN -563 130.
KOLAR DISTRICT.
2. SRI N RAMACHANDRAPPA
S/O LATE NANJAPPA
AGED ABOUT 77 YEARS,
R/AT NO.52, BHIMA RAO LAYOUT
ANEKAL, BENGALURU-562 106.
3. SRI DINESH
S/O LATE SHAMAIAH
Digitally
signed by AGED ABOUT 40 YEARS,
VANDANA
S
4. SMT DIVYA
Location:
High Court D/O LATE SHAMAIAH
of AGED ABOUT 34 YEARS,
Karnataka
PETITIONERS NO. 3 & 4 ARE
R/AT KALYANA MANTAPA STREET
ANEKAL TOWN, ANEKAL-562106.
...PETITIONERS
(BY SRI. RAJESWARA P N.,ADVOCATE)
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NC: 2023:KHC:22703
WP No. 3092 of 2022
AND:
1. K MUNIVENKATAPPA
S/O LATGE KURUBETTAPPA
AGED ABOUT 63 YEARS,
R/AT NO.146, 17TH WARD
JAI BHEEMANAGAR
ANEKAL TOWN-562 106
ANEKAL TALUK
BENGALURU DISTRICT.
2. THE TAHSILDAR
ANEKAL TALUK
ANEKAL TOWN-562 106
BENGALURU DISTRICT
...RESPONDENTS
(BY MISS. LAKSHA KALAPPA., ADVOCATE FOR R1;
SMT. RASHMI PATEL., HCGP FOR R2)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF
INDIA PRAYING TO SET ASIDE THE COMMON ORDER DTD 03.01.2022 ON
I.A.NOS2 AND 5 PASSED IN RA.NO.271/2020 BY THE HONBLE IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU VIDE ANNX-A AND CONSEQUENTLY DISMISS
I.A.NOs.2 VIDE ANNX-X AND I.A.NO.5 VIDE ANNX-Z FILED BY THE R-1.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned order passed on I.A.Nos. 2 and 5 in R.A.No.271/2020 by the IX Addl.City Civil and Sessions Judge, Bangalore Rural District, Bangalore, whereby the said application I.A.No.2 filed by the respondents for a direction to the Tahsildar to produce the documents and I.A.No.5 for permission to urge / raise additional grounds were allowed by the 1st appellate court.
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NC: 2023:KHC:22703 WP No. 3092 of 2022
2. Heard learned counsel for the petitioners and learned counsel for the respondents and perused the material on record.
3. The material on record discloses that the 1st respondent - plaintiff instituted the suit against the petitioners - defendants 1 and 2 as well as 2nd respondent - Tahsildar for declaration, permanent injunction and other reliefs in relation to the suit schedule immovable properties. In the said suit, the petitioners in addition to filing their written statement, also filed an application under Order 7 Rule 17 CPC seeking rejection of the plaint on the ground that the same did not disclose cause of action and that the vexatious, frivolous and malafide litigations initiated by the 1st respondent - plaintiff had to be nipped in the bud, that the suit is barred under law and that the conduct of the 1st respondent - plaintiff disentitled him from seeking any relief from the trial court.
4. The said application for rejection of the plaint having been opposed by the 1st respondent - plaintiff, the trial court proceeded to pass the order dated 03.01.2018 rejecting the plaint on the ground that the plaint averments did not disclose cause of action. Aggrieved by the said judgment and decree passed by the trial court, the 1st respondent - plaintiff has filed an appeal in -4- NC: 2023:KHC:22703 WP No. 3092 of 2022 R.A.No.271/2020, which is pending adjudication before the 1st appellate court. The said appeal is being contested by the petitioners herein.
5. During the pendency of the appeal, the 1st respondent - plaintiff filed the instant applications viz., I.A.No.2 for a direction to the 4th defendant - Tahsildar to produce one document and I.A.No.5 seeking permission to urge / incorporate additional grounds. Both applications having been opposed by the petitioners, the trial court proceeded to pass the impugned common order allowing both the applications, aggrieved by which, the petitioners are before this Court by way of the present petition.
6. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioners submit that the conduct of the 1st respondent in repeatedly filing false and frivolous suits making false claims and frivolous allegations against everybody, is sufficient to show that the 1st respondent is not entitled to any indulgence either before this Court or before the 1st appellate court which has failed to consider and appreciate this aspect of the matter while allowing the instant applications without assigning any cogent or proper reasons and -5- NC: 2023:KHC:22703 WP No. 3092 of 2022 consequently, the impugned common order deserves to be set aside.
7. Learned counsel for the 1st respondent - plaintiff would support the impugned order and submits that there is no merit in the petition and the same is liable to be dismissed.
8. A perusal of the impugned order passed by the trial court will indicate that while allowing the aforesaid applications I.A.Nos. 2 and 5, the 1st appellate court has not rendered any findings or made any observations as regards merits / demerits of the rival contentions and has allowed the applications mainly on the ground that no prejudice or hardship would be caused to the petitioners if the applications were allowed. While doing so, the 1st appellate court has held as under:-
" 15. Point No.1 & 2:- That since these two points are inter-related each other, I have taken up these points together for my discussion.
That in this case I have completely gone through the entire case file. These R.A.No.270/2020 & 271/2020 are filed by the appellant/plaintiff challenging the orders passed in O.S.No.275/2010 & 434/2011 on I.A.No.3 filed under Order 7 Rule 11(a) of C.P.C. passed by the learned Senior Civil Judge, Anekal dated 03-01-2018, wherein the Learned -6- NC: 2023:KHC:22703 WP No. 3092 of 2022 Trial Judge allowed I.A.No.3 and rejected the plaint under Order 7 Rule 11(a) of C.P.C. The Learned Trial Judge while allowing the 7 Rule 11(a) application made observation that suit schedule property was granted in favour of plaintiff's father on 19-11-1926 and further observed that the plaintiff's father has executed sale deed dated 11-10-1939 in favour of one Marakka, grand mother of the defendants 1 to 3, but filed the suit for declaration and possession in respect of suit property. The Learned Trial Judge further observed that sale deed dated 11-10-1939 was challenged before the Assistant Commissioner and before the Deputy Commissioner. However, the Hon'ble High Court of Karnataka in the Writ Petition No.1254/1989 has set aside the orders passed by the aforesaid authorities and confirmed the sale deed dated 11-10-1939. The Learned Trial Judge further held that the suit was meritless and there was no right to sue and plaint averments does not disclose any cause of action. Hence, the Learned Trial Judge has rejected I.A.No.3 filed under Order 7 Rule 11(a) of CPC. Against the said order present R.A.No.270/2020 & 271/2021 are filed.
16. That it is pertinent to note that earlier the appelant/plaintiff had filed suit in O.S.No.320/1989 before the Civil Judge on 10-11-1989, the said suit was came to be dismissed stating that defendants have perfected their title by means of adverse possession. Further against the said judgment and decree plaintiff preferred an appeal in R.A.No.98/2002. The Appellate court confirmed the Judgment passed by the trial court. Thereafter the plaintiff filed second Appeal before the Hon'ble High Court of -7- NC: 2023:KHC:22703 WP No. 3092 of 2022 Karnataka in R.S.A.No.2099/2007, the Hon'ble High Court of Karnataka dismissed the second Appeal on the ground that there is no substantial question of law in the case. Against the present appellant has preferred SLP before the Hon'ble Supreme Court of India, where the Hon'ble Supreme Court of India has passed an order dismissed the SLP with observations on 02-05-2014. Later on R.A.No.5002/2018 & 5003/2018 were filed before the III Addl.District & Sessions Judge, Anekal, later on transferred to Hon'ble P.D.J court, Bengaluru Rural District and as per the directions of Hon'ble Prl.District & Session Judge these two R.As. were allotted to this court for disposal.
17. That it is the contention of the plaintiff in I.A.No.2 that he filed original suits in O.S.No.275/2010 & O.S.No.434/2011 in trial court after dismissal of Regular Second Appeal in RSA No.2099/2007 on the ground that the sale deed dated 14-10-1939 in respect of suit schedule property alleged to have been executed by appellant's father has been rejected by Revenue department on the ground of alienation within period of 20 years. Hence, the Revenue Department has not passed mutation orders vide M.R.No.5/1939-40. The contention of the respondents No.1 to 3 is that, the said sale deed dated 14-10-1939 in respect of suit schedule property has been acted upon by Revenue Department and Revenue Department passed mutation orders vide M.R.No.5/1939-40. The Respondents No.1 to 3 have taken up this contention at para No.10 of written statement and synopsis at Sl.No.4 submitted to this court on 18-01-2018.Exactly upon this contention of respondents No.1 to 3 all cases filed earlier have been dismissed. The -8- NC: 2023:KHC:22703 WP No. 3092 of 2022 litigation between appellant and respondents No.1 to 3 entirely depends upon M.R.No.5/1939-40. In case the respondent No.4 agrees with the contention of respondent No.1 to 3 and produced M.R.No.5/1939-40 in respect of suit schedule property the litigation will come to an end. Or else it will continue forever without yielding any result. At this stage it is appropriate to direct the respondent No.4 who represents Revenue Department at Anekal to produce M.R.No.5/1939-40 in respect of suit schedule property before this court.
18. That on the other hand, respondents seriously objected I.A.No.2 contending that the appellant filed the frivolous application seeking to summon the respondent No.4 to produce mutation register pertaining to M.R.No.5/1939-40. The said application filed by the appellant is only to drag on the proceedings, why because the appellant, at any time can take the copy of mutation extract from revenue authorities and submit before the court. The summoning revenue authority for this purpose is not necessary. Hence, the application filed by the appellant is liable to be dismissed. It is further contended that they filed document called Record of Rights which was marked as Exhibit D13 in the suit O.S.No.320/89 filed by the appellant and the mutation M.R.No.5/1939-40 is reflected in the said Ex.D13. Hence no need to summon the very said mutation extract. The contention of the appellant that sale deed dated 14-10-1939 that was executed by appellant's father in favour of grand mother of the respondents, in respect of suit schedule property, is cancelled by Revenue Department and it is false and incorrect. Revenue authority cannot cancel any -9- NC: 2023:KHC:22703 WP No. 3092 of 2022 registered deed of conveyance and this power is vested with Civil Courts and not with Revenue Department. Besides, the appellant himself admitted the execution of said registered sale deed by his father, in O.S.No.275/2010 and 434/2011. Hence, prayed to reject the application.
19. That the appellant/plaintiff in I.A.No.5 stated that the trial court has rejected the plaint without considering pleadings on forgery and suppression of documents by respondents in earlier proceedings to obtain favourable judgments. At the time of filing Appeal in 2018, some important principles of law were not pleaded so far as rejection of plaint is concerned. Hence, it became necessary for him to seek permission of this court to raise additional grounds. If, appellant is permitted to raise additional grounds it will not cause any harm or prejudice to other side. On the other hand if he is not permitted to raise additional grounds the appellant will have to suffer irreparable loss and injury. Hence, prayed to allow the applications.
20. It is the contention of the proposed respondent No.5 to 16 that the appellant filed the suit for declaration of title, possession and for cancellation of the judgment delivered in O.S.No.320/1999 in respect of suit schedule property. Originally, suit schedule property belongs to one Sri.Kurubettappa, he acquired the property by way of grant from the Government of Karnataka in case No.K/SC/ST.2/1987-88. After acquired the property the above said Kurubettappa was changed the katha in his favour and also he was in peaceful possession and enjoyment of the suit schedule property during his life time.
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NC: 2023:KHC:22703 WP No. 3092 of 2022 After death of the above said Kurubettappa his legal heirs were in peaceful possession and enjoyment of the suit schedule property. Since the proposed respondents are the Hindu undivided joint family members and also since the suit schedule property is ancestral and joint family property of the appellant and respondents 5 to 12 and 14 to 16. Hence they are proper and necessary parties for the adjudication of the case. Hence, prayed to allow I.A.No.3.
21. Further, the appellant filed objection to the I.A.3 contending that the impleading application filed by proposed respondents No.5 to 16 is not maintainable. The title dispute between appellant and respondents on record has not been adjudicated finally. The same has been under adjudication from 1975 to till date. The proposed respondents No.5 to 16 are children of appellant's sisters. In other words the respondents No.5 to 15 are children of deceased Hindu daughters. The father of said Hindu daughters died in 1952. The Hindu daughters are not entitled for share in ancestral property or any property under Hindu Succession Act 1956 in case their father expired prior to 17-06-1956. The impleading application filed by proposed respondents 5 to 16 appears to be prematured. Moreover the proposed respondents No.5 to 16 are not claiming rights against respondents on record. Hence, prayed to dismiss the impleading application.
22. That the respondent No.1(a) filed objection statement to impleading application contending that the applicants are not necessary and proper parties to this appeal for effective adjudication of the dispute between the parties. Further
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NC: 2023:KHC:22703 WP No. 3092 of 2022 those applicants are not parties before the trial court in O.S.No.434/2011 as such they have no locus standi to come on record as proposed respondents in this appeal, on this ground alone the I.A.is to be dismissed in limine. Further, the appellant admitted that his father sold the suit schedule property in favour of respondents paternal grand mother Smt.Marakka under the registered sale deed dated 11-10- 1939 registered in the office of the Sub-Registrar, Anekal. It clearly establishes that, the appellant's father has lost the right, title, interest of possession over the suit schedule property. The appellant by making false allegations has filed several suits, appeals before the Civil Court, High Court and also filed several revenue disputes before the Revenue authorities in respect of suit schedule property against the respondents. All the matters held against appellant and declaring that the respondents are the absolute owners in possession and enjoyment of the suit schedule property. In this appeal, the point involved whether the rejection of plaint is proper or not, under these circumstances the present I.A. for impleading is not maintainable. Hence, prayed to dismiss the application.
23. Further the respondents filed objection to I.A.No.5 contending that the suit was disposed of during the year 2018 and the alleged grounds which the appellant now sought to be raised were also available at that time itself and having urged the relevant point of time, the appellant is estopped now raising such grounds. The appellant filed the above application to protract the proceedings and harass the respondents 1 to 3. It is further contended that the appellant
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NC: 2023:KHC:22703 WP No. 3092 of 2022 has already been concluded by the Hon'ble High Court, civil court and other revenue authorities. The appellant with malafide intention and to harass the respondents and their family members filed this appeal.
24. After hearing on both sides no doubt if the orders passed on 7 Rule 11(a) CPC application, it is amounts to decree which is an appelable order by filing R.A. There is no dispute as such. Now in I.A.No.2 Learned Counsel for appellant/plaintiff argued that the appellant/plaintiff filed original suits in O.S.No.275/2010 & O.S.No.434/2011 in trial court after dismissal of Regular Second Appeal in RSA No.2099/2007 on the ground that the sale deed dated 14-10- 1939 in respect of suit schedule property alleged to have been executed by appellant's father has been rejected by Revenue department on the ground of alienation within period of 20 years. Hence, the Revenue Department has not passed mutation orders vide M.R.No.5/1939-40. It is further argued that according to the respondents No.1 to 3 the said sale deed dated 14-10-1939 in respect of suit schedule property has been acted upon by Revenue Department and Revenue Department passed mutation orders vide M.R.No.5/1939-40. The Respondents No.1 to 3 have taken up this contention at para No.10 of written statement and synopsis at Sl.No.4 submitted to this court on 18-01- 2018.Exactly upon this contention of respondents No.1 to 3 all cases filed earlier have been dismissed. The litigation between appellant and respondents No.1 to 3 entirely depends upon M.R.No.5/1939-40. In case the respondent No.4 agrees with the contention of respondent No.1 to 3 and
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NC: 2023:KHC:22703 WP No. 3092 of 2022 produced M.R.No.5/1939-40 in respect of suit schedule property the litigation will come to an end. Accordingly prayed to direct the revenue authorities to produce before the court.
25. The Learned Counsel for respondents have seriously opposed this I.A.No.2 and argued that the said application filed by the appellant is only to drag on the proceedings, why because the appellant, at any time can take the copy of mutation extract from revenue authorities and submit before the court. The summoning revenue authority for this purpose is not necessary. Hence, the application filed by the appellant is liable to be dismissed. It is further contended that they filed document called Record of Rights which was marked as Exhibit D13 in the suit O.S.No.320/89 filed by the appellant and the mutation M.R.No.5/1939-40 is reflected in the said Ex.D13. Hence no need to summon the very said mutation extract. The contention of the appellant that sale deed dated 14-10-1939 that was executed by appellant's father in favour of grand mother of the respondents, in respect of suit schedule property, is cancelled by Revenue Department and it is false and incorrect. Revenue authority cannot cancel any registered deed of conveyance and this power is vested with Civil Courts and not with Revenue Department. Besides, the appellant himself admitted the execution of said registered sale deed by his father, in O.S.No.275/2010 and 434/2011.
26. Likewise in I.A.No.3 Learned Counsel for proposed respondent No.5 to 16 argued that the appellant filed the suit for declaration of title, possession and for cancellation of
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NC: 2023:KHC:22703 WP No. 3092 of 2022 the judgment delivered in O.S.No.320/1999 in respect of suit schedule property. Originally, suit schedule property belongs to one Sri.Kurubettappa, he acquired the property by way of grant from the Government of Karnataka in case No.K/SC/ST.2/1987-88. After acquired the property the above said Kurubettappa was changed the katha in his favour and also he was in peaceful possession and enjoyment of the suit schedule property during his life time. After death of the above said Kurubettappa his legal heirs were in peaceful possession and enjoyment of the suit schedule property. Since the proposed respondents are the Hindu undivided joint family members and also since the suit schedule property is ancestral and joint family property of the appellant and respondents 5 to 12 and 14 to 16. Hence they are proper and necessary parties for the adjudication of the case.
27. Further, the Learned Counsel for appellant/plaintiff seriously opposed the impleading application filed by proposed respondents No.5 to 16 and argued that this application is not maintainable. The title dispute between appellant and respondents on record has not been adjudicated finally. The same has been under adjudication from 1975 to till date. The proposed respondents No.5 to 16 are children of appellant's sisters. In other words the respondents No.5 to 15 are children of deceased Hindu daughters. The father of said Hindu daughters died in 1952. The Hindu daughters are not entitled for share in ancestral property or any property under Hindu Succession Act 1956 in case their father expired prior to 17-06-1956. The
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NC: 2023:KHC:22703 WP No. 3092 of 2022 impleading application filed by proposed respondents 5 to 16 appears to be prematured. Moreover the proposed respondents No.5 to 16 are not claiming rights against respondents on record. Hence, prayed to dismiss the impleading application.
28. Further the Learned Counsel for appellant/plaintiff on I.A.No.5 argued that the trial court has rejected the plaint without considering pleadings on forgery and suppression of documents by respondents in earlier proceedings to obtain favourable judgments. At the time of filing Appeal in 2018, some important principles of law were not pleaded so far as rejection of plaint is concerned. Hence, it became necessary for him to seek permission of this court to raise additional grounds. If, appellant is permitted to raise additional grounds it will not cause any harm or prejudice to other side. On the other hand if he is not permitted to raise additional grounds the appellant will have to suffer irreparable loss and injury.
29. Further the Learned Counsel for respondents seriously opposed I.A.No.5 and argued that the suit was disposed of during the year 2018 and the alleged grounds which the appellant now sought to be raised were also available at that time itself and having urged the relevant point of time, the appellant is estopped now raising such grounds. The appellant filed the above application to protract the proceedings and harass the respondents 1 to 3. It is further contended that the appellant has already been concluded by the Hon'ble High Court, civil court and other revenue authorities. The appellant with malafide intention
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NC: 2023:KHC:22703 WP No. 3092 of 2022 and to harass the respondents and their family members filed this appeal.
30. That after going through entire case file it is admitted fact that both suit in O.S.No.275/2010 & O.S.No.434/2011 filed before Learned Trial Judge were dismissed. On the other hand the Hon'ble High Court of Karnataka has dismissed RSA No.No.2099/2007, the Hon'ble High Court of Karnataka dismissed the second Appeal on the ground that there is no substantial question of law in the case. Against the present appellant has preferred SLP before the Hon'ble Supreme Court of India, where the Hon'ble Supreme Court of India has passed an order dismissed the SLP with observations on 02-05-2014.
31. I have completely gone through the entire observation made by Hon'ble Supreme Court of India which reads as under;
" No. Merit. This special leave petition is dismissed. We however make it clear that the observations, if any made by the High Court on the merits of the controversy shall not prejudice the Civil Court in determining the validity of the sale deed which according to the petitioner has been fabricated."
Therefore, the Hon'ble Supreme Court of India has dismissed the SLP filed by the present appellant on the observation that without prejudice to the civil court in determining the validity of the sale deed which according to the petitioner has been fabricated. Therefore in my opinion the opportunity has been given to the appellant to prefer the present appeals that whether the sale deed executed by his
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NC: 2023:KHC:22703 WP No. 3092 of 2022 father is fabricated or not as observed by the Hon'ble Supreme Court of India in the above SLP. Therefore, in my opinion for the proper adjudication of the case to know whether the sale deed said to be executed by appellant/plaintiff's father is to be determined as observed by the Hon'ble Supreme Court of India. Therefore, this court has no other option to give the opportunity to the appellant to prove his case. Therefore, if respondent No.4 is called upon to produce the disputed M.R.5/1939-40 pertaining to suit property no hardship will be caused to anyone. Further the court has to give opportunity to raise additional grounds as prayed in I.A.No.5 by giving opportunity to appellants to raise additional grounds in the present appeals as the Hon'ble Supreme Court of India has already made observation to agitate the matter before the Appellate Court.
32. However, I.A.No.3 is concerned it is filed under Order 1 Rule 10(2) of CPC stating that the proposed applicants/Respondents No.5 to 16 stating that they are the legal heirs of deceased Kurubettappa and they are also necessary parties and prayed to implead them as proposed respondents 5 to 12 and 14 to 16.
33. Further, on the other hand the Learned Counsel for respondents 2 & 3 vehemently argued that now respondents 5 to 16 filed application for impleading them as necessary parties is not maintainable under law. The proposed respondents 5 to 16 are children of deceased Hindu daughters. The father of said daughter died in the year 1952. Since at that time Hindu daughters are not entitled for share in the ancestral property or any property under Hindu
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NC: 2023:KHC:22703 WP No. 3092 of 2022 Succession Act 1956 in case their father expired prior to 17- 06-1956. Therefore this application is not maintainable. Accordingly prayed to dismiss the application.
34. So far as this application is filed under Order 1 Rule 10(2) is concerned even though there is litigation relates to way back to the year 1939-40. Therefore, after long period this I.A.No.3 is preferred by respondents 5 to 16. Therefore, this application is not maintainable. Hence, point No.1 & 2 are answered accordingly.
35. POINT NO.3:- In the light of the above discussion, I proceed to pass the following:-
::O R D E R ::
I.A.No.2 & 5 filed by appellant/plaintiff U/o 11 Rule 14 R/w Section 107(2) of C.P.C. & U/o 41 R.2 R/w Section 151 of C.P.C. are hereby allowed respectively with cost of Rs.1000/- each.
Issue direction to Respondent No.4 to produce M.R. extract No.5/1939-40 in respect of suit schedule property as prayed in I.A.No.2.
Further the appellant/plaintiff is hereby permitted to raise additional grounds in R.As. as prayed in I.A.No.5. Further the appellant/plaintiff is hereby directed to amend the memorandum of R.A. as prayed in I.A.No.5 and after amendment appellant/plaintiff is hereby directed to furnish amended R.A. before the court.
I.A.No.3 filed by the Respondents 5 to 16 U/o 1 Rule 10(2) R/w Section 151 of C.P.C. is hereby rejected."
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9. Upon re-appreciation, re-consideration and re-evaluation of the entire material on record, I am of the view that the impugned order passed by the 1st appellate court allowing I.A.Nos. 2 and 5 cannot be said to have occasioned any failure of justice warranting interference by this Court, particularly when all the contentions urged by the petitioners in the present petition can be urged by them before the 1st appellate court, who would be at liberty and entitled to file statement of objections to the additional grounds and contest all the grounds urged by the 1st respondent-plaintiff and impeach / challenge the additional document before the 1st appellate court as well as additional grounds permitted by the 1st appellate court. So also, all rival contentions as regards documents sought to be summoned also deserve to be left open to be adjudicated by the 1st appellate court at the time of final disposal of the appeal and mere summoning of the said documents cannot be said to have caused any prejudice to the petitioners, who would be entitled to put forth all contentions in respect of the said documents also. However, in view of the specific contention urged by the petitioners that the 1st respondent is guilty of protracting the proceedings, I deem it just and appropriate to direct the 1st respondent not to put forth any additional grounds other than those
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NC: 2023:KHC:22703 WP No. 3092 of 2022 sought for in I.A.No.5 and also restrain the 1st respondent -plaintiff from producing additional documents other than the documents already on record and also restrain them from producing any other additional documents or seeking summoning of other documents other than the one sought to be summoned by I.A.No.2.
10. In this context, it is relevant to state that since the documents sought to be summoned by I.A.2 is only a mutation register extract which is sought to be summoned from the Tahsildar
- 4th defendant who is also a party to the appeal, it cannot be said that any prejudice would be caused to the petitioners, if a direction is issued to the Tahsildar in terms of the impugned common order. Learned AGA on instructions, submits that the Tahsildar would produce the said documents before the 1st appellate court, on the date fixed by the 1st appellate court. The said submission is placed on record.
11. In view of the aforesaid facts and circumstances, I am of the view that the impugned common order passed by the trial court does not suffer from any illegality or infirmity nor can the same said to have occasioned failure of justice warranting interference by this Court in the present petition as held by the Apex Court in the case
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NC: 2023:KHC:22703 WP No. 3092 of 2022 of Radhey Shyam vs. Chhabi Nath & Others - (2015) 5 SCC
423.
12. In the result, I pass the following:-
ORDER
(i) Petition is hereby disposed of by modifying the impugned common order dated 03.01.2022 passed by the trial court.
(ii) I.A.Nos. 2 and 5 filed by the 1st respondent - plaintiff, stand allowed subject to the condition that apart from the additional grounds sought to be incorporated by way of I.A.No.5, the 1st respondent - plaintiff shall not seek introduction / incorporation of any additional grounds and shall co-operate with the 1st appellate court for expeditious disposal of the appeal.
(iii) So also, the 1st respondent - plaintiff is directed not to produce any other additional documents nor seek summoning of any other documents other than the documents already on record before the 1st appellate court and the document sought to be summoned in I.A.No.2.
(iv) The 2nd respondent - Tahsildar who is arrayed as respondent No.4 in R.A.No.271/2020 is directed to produce the document sought for in I.A.No.5 before the first appellate court.
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(v) The 1st appellate court is directed to dispose of the appeal on merits as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this order.
(vi) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.
Sd/-
JUDGE Srl.