Karnataka High Court
Sri.Vishwanathgouda Adopted Father vs Sri.Marakumbi Basvaprabhu on 16 July, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16th DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
W.P.No.146906/2020 (GM-CPC)
BETWEEN:
1. SRI.VISHWANATHGOUDA ADOPTED FATHER
ANDANAGOUDA BUDIHAL
AGE:53 YEARS, OCC: AGRICULTURE,
R/O: ABBIGERI, TQ: RON, DIST: GADAG.
.. PETITIONER
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADV.)
AND:
1. SRI.MARAKUMBI BASVAPRABHU
S/O: DR. M. SHEKHARAGOUDA
AGE:38 YEARS, OCC: AGRICULTURE,
R/O: HERUR, TQ: GANGAVATHI, DIST: KOOPPAL
2. SRI. MARAKUMBI RAVIKUMAR
DR. M.SHEKHARAGOUDA
AGE:35 YEARS, OCC: AGRIOCULTURE
R/O: NO.63, 4TH CROSS, KENJCHANAHALLI
YALAHANKA, BENGALURU-560064
3. SMT. ANNAPURNA W/O DR. M. SHEKHARAGOUDA
AGE:59 YEARS, OCC: HOME MAKER,
R/O: HERUR, TQ: GANGAVATHI, DIST: KOPPAL
.. RESPONDENTS
THIS PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO A WRIT IN THE NATURE OF
CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION
QUASHING THE ORDER DATED 09.06.2020 IN R.A.NO.33/2015
PASSED BY THE LEARNED 1ST ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT, GADAG, PRODUCED AS ANNEXURE-F AND ALLOW
THE APPLICATION I.A.NO.4 VIDE ANNEXURE-D.
2
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed seeking writ of certiorari to quash the order dated 09.06.2020 passed in R.A.No.33/2015 on the file of the I Additional Principal Judge, Family Court, Gadag as per Annexure-D.
2. The respondents filed a suit for declaration and permanent injunction in O.S.No.49/2005. The present petitioner who was arrayed as defendant on receipt of summons filed written statement and stoutly denied the entire averments made in the plaint. The present petitioner specifically contended that he is taken in adoption by the original plaintiff-Basawwa on 10.02.1977 and accordingly relied on deed of adoption dated 21.02.1977. In support is contention, he lead in evidence since the burden was cast on the present petitioner on issue No.5 in O.S.No.49/2005. The learned Judge while examining issue No.5 recorded a finding that the present petitioner has failed to establish that he is adopted son of original plaintiff-Basawwa and 3 accordingly, issue No.5 is answered in the negative and suit filed by the respondent seeking the relief of declaration and injunction is allowed.
3. The present petitioner being aggrieved by the judgment and decree of the trial Court has preferred an appeal before the appellate Court in R.A.No.33/2015. The present petitioner has filed an application in I.A.No.4 under Order XVI Rule 7 of CPC seeking direction to the Sub- Registrar, Ron to produce the original adoption deed dated 21.02.1977. The said application was strongly resisted by the respondent/plaintiffs in R.A.No.33/2015. The appellate Court having examined the rival contentions of the parties has rejected the application by recording a finding that certified copy of the adoption deed was tendered in evidence by the present petitioner and the same was admitted in evidence. The trial Court has examined the documents and other relevant material on record and has negatived the contention of the present petitioner. The appellate Court was of the view that the petitioner's claim 4 that he is adopted son of original plaintiff-Basawwa is negatived not on the ground that original adoption deed is not produced. In this background, the appellate Court while rejecting the application was of the view that the application filed by the petitioner lacks bonafides and proceeded to reject the application on the ground that it is unnecessary to summon the Sub-Registrar, Ron to produce the original adoption deed. The appellate Court was also of the view that the original document cannot be expected to be in the custody of the Sub-Registrar, Ron. On these set of reasoning, the appellate Court rejected the application.
4. The learned counsel for the petitioner would vehemently argue and contend before this Court that production of the original adoption deed is essential for effective adjudication of the controversy between the parties. The grievance of the petitioner before this Court is that while passing orders on I.A.No.4, the appellate Court has virtually ventured into examining the merits of the 5 case and this observation affect the rights of the petitioner in the appeal pending in R.A.No.33/2015.
5. I have given careful consideration to the reasoning assigned by the appellate Court. On examination of the material on record, I am of the view that the order under challenge does not suffer from any infirmities and material irregularity. The contention of the learned counsel that the appellate Court has also dealt on merits while deciding I.A.No.4 is not tenable. Even if there are any passing remarks while deciding I.A.No.4, I am of the view that the said remarks cannot be taken as conclusive finding. The appellate Court while deciding the main matter being final fact finding authority has to reassess the oral and documentary evidence on record and decide the case on merits.
For the reasons stated supra, writ petition is devoid of merits and is accordingly dismissed.
SD/-
JUDGE MBS/-