Partly allowed

Sri.Jayaram Shetty v. Nawab S/O Gousemohiddin Chavadi

Karnataka HC24 Feb 2020WP/119759/2020

Case brief

AI extract

What is this about?

In a writ petition filed under Article 227, the High Court upheld the trial court\'s restriction that a petitioner could not re-agitate issues of fraud decided in a 1985 suit. However, the High Court set aside the order declaring the petitioner\'s cross-examination of the plaintiff as nil and directed the trial court to permit the examination.

What did the court decide?

Order dated 17.01.2020 declaring cross-examination nil is set aside; cross-examination of P.W.1 by petitioner/respondent No.7 to be permitted on specific grounds.

Sri.Jayaram Shetty Vs Nawab S/O Gousemohiddin Chavadi — Partition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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Dated this the 24^th day of February 2020

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Before

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THE HON’BLE MR.JUSTICE S.G. PANDIT

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Writ Petition Nos.119759-119760 of 2020 (GM-CPC)

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BETWEEN:

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SRI.JAYARAM SHETTY PROPRIETOR WELCOME HOTEL, SUBHASH ROAD, DHARWAD, AGE: 75 YEARS, OCC: BUSINESS, R/O: SWETHA VARNA, RAJATAGIRI, DHARWAD-580001. ...PETITIONER

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(BY SRI. J.S. SHETTY & SMT. DEEPA UDIYAR, ADVOCATES)

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A N D

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1. NAWAB

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S/O GOUSEMOHIDDIN CHAVADI AGE: MAJOR, OCC: PRIVATE WORK, R/O: MANKILLA, FAKIRGALLI, DHARWAD-580001.

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2. JABEEN

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D/O GOUSEMOHIDDIN CHAVADI AGE: MAJOR, OCC: PRIVATE WORK, R/O: MANKILLA, FAKIRGALLI, DHARWAD-580001.

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JAREEN D/O GOUSEMOHIDDIN CHAVADI AGE: MAJOR, OCC: PRIVATE WORK,

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R/O: MANKILLA, FAKIRGALLI,

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DHARWAD-580001.

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SMT.ABEDA W/O GOUSEMOHIDDIN CHAVADI AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIRGALLI, DHARWAD-580001.

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MOHAMMED RAFIQ S/O MAINUDDIN CHAVADI AGE: 67 YEARS, R/O: NIJAMUDDIN COLONY, DHARWAD, DIST: DHARWAD-580001.

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JAILANI S/O MAINUDDIN CHAVADI AGE: MAJOR, OCC: PRIVATE WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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IQBAL S/O MAINUDDIN CHAVADI AGE: MAJOR, OCC: PRIVATE WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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SHAMIMBANU W/O IMTIYAZ CHAVADI AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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AFREENBANU D/O IMTIYAZ CHAVADI AGE: 20 YEARS, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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MOHISIN S/O IMTIYAZ CHAVADI AGE: 18 YEARS, OCC: STUDENT, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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MEHAK, D/O IMTIYAZ CHAVADI AGE: 15 YEARS, MINOR REPRESENTED BY MOTHER SHAMIMBANU RESPONDENT NO.8, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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SMT.AYESHABI @ SHABINA W/O IMTIYAZ CHAVADI AGE: 41 YEARS, OCC: PRIVATE WORK, R/O: ANDHERI (EAST), PUMP HOUSE, HANJER NAGAR, B BUILDING, 201, MUMBAI-400093.

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ZAIDA D/O IMTIYAZ CHAVADI AGE: 20 YEARS, OCC: STUDENT, R/O: ANDHERI (EAST), PUMP HOUSE, HANJER NAGAR, B BUILDING, 201, MUMBAI-400093.

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MOHAMMAD ZAID S/O IMTIYAZ CHAVADI AGE: 17 YEARS, OCC: STUDENT, MINOR REPRESENTED BY HIS MOTHER SMT.AYESHABI @ SHABINA W/O IMTIYAZ CHAVADI, RESPONDENT NO.12 R/O: ANDHERI (EAST), PUMP HOUSE, HANJER NAGAR, B BUILDING, 201,

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MUMBAI-400093.

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NOORA D/O MAINUDDIN CHAVADI AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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MUMTAZ D/O MAINUDDIN CHAVADI AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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SHYANAZ D/O MAINUDDIN CHAVADI AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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SHAMSHAD D/O MAINUDDIN CHAVADI AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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DILSHAD D/O MAINUDDIN CHAVADI AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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KHAJABI W/O GOUSEMOHUDDIN GHODESAVAR AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIR GALLI,

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DHARWAD-580001.

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ABDUL ISHAQ S/O GOUSEMOHUDDIN GHODESAR AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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SULEMAN S/O GOUSEMOHUDDIN GHODESAR AGE: MAJOR, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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ABID S/O GOUSEMOHUDDIN GHODESAVAR AGE: MAJOR, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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SALEEM S/O GOUSEMOHUDDIN GHODESAVAR AGE: MAJOR, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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MAHABOOBIBI W/O ABDUL KHADER GHODESAVAR AGE: MAJOR, OCC: HOUSEHOLD, R/O: MANKILLA, FAKIR GALLI, DHARWAD-580001.

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PROPRIETOR SHARADA VILAS DHARWAD-580001.

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PROPRIETOR CITY CENTRAL LODGE, DHARWAD-580001.

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PROPRIETOR, POPULAR HAIR CUTTING SALOON, DHARWAD-580001.

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PROPRIETOR PORWAL MEDICAL SHOP, DHARWAD-580001.

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PROPRIETOR RAJASHREE STUDIO, RAJASHREE ENTERPRISES, DHARWAD-580001.

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THE PROPRIETOR RAJASTHAN MEDICAL STORES, NEAR BESIDE WELCOME HOTEL, SUBHASH ROAD, OPP: TOWN POLICE STATION, DHARWAD-580001. ...RESPONDENTS

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(BY SRI. P.G. CHIKKANARAGUND, ADVOCATE FOR R16 & R17 SRI. D.M. MALLI, ADVOCATE FOR R1 TO R15, R18 & R19 SRI. V.G.BHAT, ADVOCATE FOR R22)

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(R26 TO R31 – NOTICE DISPENSED WITH) (R25 - DELETED) (R20, R21, R23 AND R24 – SERVICE HELD SUFFICIENT)

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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE ORDER DATED 14.01.2020 PASSED IN FDP NO.18/2004 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DHARWAD THE COPY OF WHICH HAS BEEN PRODUCED HEREWITH AT ANNEXURE-A AND ALSO THE ORDER DATED 17.01.2020 PASSED IN FDP NO.18/2004 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DHARWAD THE COPY OF WHICH HAS BEEN PRODUCED HEREWITH AT ANNEXURE-V.

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 12.02.2020 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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ORDER

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The petitioner/respondent No.7 in Final Decree Proceedings No.18 of 2004 on the file of Principal Senior Civil Judge and CJM, Dharwad, is before this Court under Article 227 of the Constitution of India aggrieved by the order dated 14.01.2020, whereby the Trial Court restricted the petitioner to cross-examine the P.W.1 only in respect of the gift deed and has held that the petitioner cannot re-agitate in respect of already decided issues. The petitioner has also assailed the order dated 17.01.2020 by which the cross-examination of P.W.1 by respondent No.7, petitioner herein, is taken as ‘nil’.

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Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the writ petition papers.

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The learned counsel for the petitioner would

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submits that the petitioner was defendant No.7 in O.S. No.73 of 1985 and respondent No.7 in F.D.P. No.18 of

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2004 arising out of the judgment and decree passed in O.S. No.73 of 1985. The petitioner claims that, initially, he was tenant of portion of the property bearing CTS No.171/16/1 to an extent of 46.5 square yards under Mohammad Gouse and Abdullah. In the said portion, he is running hotel business. The present final decree proceedings is in respect of the judgment and decree passed in O.S. No.73 of 1985 which was filed for partition and separate possession wherein the petitioner was also a party as defendant No.7. The petitioner/respondent No.7 filed objections to the main petition, mainly contending that the preliminary decree has been obtained by playing fraud on the Court in respect of schedule item No.11, which is CTS No.171/16/1 purchased by the petitioner. It is further contended that the property at item No.11 is not available for partition. The plaintiff was examined as P.W.1. While the petitioner was cross-examining P.W.1,

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the plaintiff’s counsel took up an objection that the

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cross-examination of P.W.1 by the petitioner/respondent No.7 was beyond the scope of the preliminary decree. Considering the said objection, the Trial Court under the impugned order dated 14.01.2020 permitted the petitioner to cross-examine P.W.1 observing that the petitioner cannot re-agitate in respect of already decided issues. The question relating to fraud cannot be crossexamined. Thereafter, under the order dated 17.01.2020, the cross-examination of P.W.1 by the petitioner/respondent No.7 was taken as ‘nil’ and the final decree proceedings was posted for arguments. These orders are questioned in these petitions.

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Heard the learned counsels for the parties

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and perused the writ petition papers.

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The learned counsel for the petitioner would

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submit that the preliminary decree only declares the entitlement of shares of the parties to the proceedings. The petitioner/defendant No.7 was a tenant of a portion

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of the suit schedule property and subsequently, the petitioner/defendant No.7 purchased the property bearing CTS No.171/16/1 from Mohammad Gouse and Abdullah under the registered sale dated 17.01.1992 to an extent of 46.5 sq. yards. The petitioner is running hotel business in the said property. Item No.11 of the suit schedule is not available for partition and as such the petitioner should be allowed to cross-examine P.W.1 with regard to inclusion of item No.11 in the suit schedule even though it was not available for partition. It is his further submission that in the final decree proceedings, the Court has to decide as to how the property is to be divided and how the shares are to be allotted and how it has to be allotted. It is the submission of the petitioner’s counsel that the plaintiff has played fraud on the Court while obtaining the preliminary decree. With regard to fraud played, the petitioner has to be permitted to cross-examine the plaintiff-P.W.1. The Trial Court committed an error in

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denying full cross-examination of P.W.1. Further, he submits that the petitioner is concerned with only item No.11 to the suit schedule and is concerned about extent of land available for division in item No.11. The learned counsel referred to the decision of Hon’ble Supreme Court in the case of S.P.Chengalvaraya Naidu

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(Dead) By LRs. Vs. Jagannath (Dead) by Lrs. And Others reported in ( 1994) 1 SCC 1 with regard to fraud. Thus, he prays for allowing the writ petitions and to allow the petitioner to fully cross-examine the P.W.1. It

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is his submission that the Trial Court could not have restricted the cross-examination of P.W.1.

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Per contra, the learned counsel appearing for the respondents/plaintiff would submit that the suit is of the year 1985 and the final decree proceedings is of the year 2004, till this date the petitioner/defendant No.7 is, in one way or the other, dragging on the proceedings so as to defeat the decree. It is their submission that the petitioner/defendant No.7, who claims to be the

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purchaser of item No.11 of the suit schedule property, has not challenged the preliminary decree even though he was a party to the suit. He has accepted the preliminary decree and the judgment and decree passed in O.S. No.73 of 1985 which is confirmed by this Court in R.S.A. No.1393 of 1995. On the ground of fraud without their being any basis, the petitioner/defendant No.7 cannot be permitted to reopen the entire proceedings. Thus, they justify the order passed by the Trial Court.

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Having heard the learned counsels for the parties and on perusal of the material on record, the only point which falls for consideration is whether the Trial Court is justified in restricting the crossexamination of P.W.1 by the petitioner/respondent No.7 and in taking the cross-examination of P.W.1 by the respondent No.7 as ‘nil’. The answer to the above point

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is partially in the affirmative and partially in the negative for the following reasons:

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(a) The suit is of the year 1985. The final decree

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proceedings is of the year 2004. The judgment and decree passed in O.S. No.73 of 1985 has attained finality before this Court in R.S.A. No.1393 of 1995. The petitioner claims that earlier he was a tenant of CTS No.171/16/1, which is item No.11 to the suit schedule. It is the case of the petitioner/defendant No.7 that he purchased the said property under registered sale deed dated 17.01.1992 from Mohammad Gouse and Abdullah. The petitioner/respondent No.7 was also a party to O.S. No.73 of 1985 filed for partition among the plaintiff and defendants No.1 to 6. The petitioner/respondent No.7 has not challenged the preliminary decree wherein shares were determined. The petitioner’s contention is that in the final decree proceedings, Court has to decide how the properties are to be divided, how the shares are to be allotted and where shares are to be allotted to the

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parties. Further, the contention of the petitioner is that fraud has been played in including item No.11 to the suit schedule property, which is purchased by him. The petitioner being a party to the suit, at this stage, cannot take up the contention of fraud and misrepresentation. The decision cited by the petitioner would have no bearing at this stage of the proceedings. Admittedly, he has not challenged the preliminary decree insofar as item No.11 is concerned. The petitioner, under the guise of examining P.W.1, cannot reopen the entire case. The petitioner/defendant No.7 could cross-examine only to protect his interest. Chapter X of the Indian Evidence Act, 1872 (for short ‘the Act’) deals with examination of witnesses. Under Chapter X of the Evidence Act, it is for the Trial Court to regulate the examination and crossexamination of the witnesses. This Court cannot regulate the examination or cross-examination of the witnesses. In the guise of cross-examination, the petitioner cannot be permitted to cross-examine as if it is an original suit.

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The respondent No.6 had taken a contention that, the

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gift deed is executed in favour of the petitioner/respondent No.7 by respondent No.6 in respect of item no.11 of the suit schedule properties. Therefore, the Trial Court permitted the petitioner/respondent No.7 to examine P.W.1 on that issue and not to reopen the allegation of fraud. The petitioner/respondent No.7 had not raised such plea in

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the suit or by filing an appeal. Hence, I decline to interfere with the order passed by the Trial Court on 14.01.2020.

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(b) Insofar as the order dated 17.01.2020

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passed by the Trial Court taking the cross-examination of P.W.1 by respondent No.7 as ‘nil’, the same requires to be interefered with. The Trial Court under Order dated 14.01.2020 permitted the petitioner/respondent No.7 to cross-examine P.W.1 to certain extent. The same shall be permitted by the Trial Court. Hence, the order dated

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17.01.2020 taking cross-examination of P.W.1 by respondent No.7 as ‘nil’ is set aside.

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The Trial Court to permit the cross-

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examination of P.W.1 by the petitioner/respondent No.1. In the guise of cross-examination of P.W.1, the petitioner/respondent No.7 shall not drag on the proceedings. With the above, the writ petitions are disposed of.

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Sd/JUDGE

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Kms

Sri.Jayaram Shetty v. Nawab S/O Gousemohiddin Chavadi

Case brief

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Sri.Jayaram Shetty v. Nawab S/O Gousemohiddin Chavadi

Case brief

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