Partly allowed

Sri. K. R. Shivakumar v. Smt. a. N. Indumati

Karnataka HC9 Nov 2021WP/2141/2021

Case brief

AI extract

What is this about?

This High Court allowed writ petitions challenging orders granting an amendment of plaint to include additional properties and ordering production of documents in a partition suit. The court upheld the amendment but quashed the production order, remanding it for reconsideration on relevance of documents pursuant to Annaji Babaji Bhosle, and directed expeditious disposal of the suit.

What did the court decide?

I.A. No.32 allowed but remanded for reconsideration; order dated 19.01.2021 invalidates insofar as I.A. No.32.

Sri. K. R. Shivakumar Vs Smt. a. N. Indumati — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.1761/2021 (GM-CPC) C/W WRIT PETITION NO.2141/2021 (GM - CPC)

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IN W.P.NO.1761/2021

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BETWEEN :

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SRI. K R VEERANNA, S/O SRI K B RUDRAPPA, AGED ABOUT 49 YEARS, DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001.

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... PETITIONER

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(BY SRI.D.R.RAVISHANKAR, ADVOCATE FOR M/S. LEX NEXUS, ADVOCATES)

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AND :

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SMT. A N INDUMATI, W/O A NAGARAJ, AGED ABOUT 65 YEARS, DOOR NO.9, 53-A CROSS, 16^TH MAIN, III 'Y' BLOCK, RAJAJINAGAR, BANGALORE - 560 016.

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SMT. HEMALATHA S WALI, W/O SHIVAYOGI S WALI,

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AGED ABOUT 61 YEARS, B-3, SFS APARTMENTS, NEAR SHARAVATHI STOP, YELAHANKA NEW TOWN, BANGALORE - 560 064.

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SMT. B M VIJAYA, W/O B.MALLAPPA, AGED ABOUT 60 YEARS, DOOR NO.9, 53-A CROSS, 16^TH MAIN, III 'Y' BLOCK, RAJAJINAGAR, BANGALORE - 560 016. 4. SMT. K R NAGARATHNA, W/O S MUDDANNA, AGED ABOUT 51 YEARS, NO.2574, 7^TH A MAIN, 7^TH CROSS, RPC LAYOUT, VIJAYANAGAR, 5^TH STAGE, BANGALORE - 560 040. 5. SMT. K R MALA, W/O K A MANJUNATH, AGED ABOUT 47 YEARS, DOOR NO.2718, GOWRI NILAYA, 2^ND MAIN, II CROSS, MCC 'B' BLOCK, DAVANAGERE - 577 004. 6. K.B. RUDRAPPA, SON OF K B GURUSIDDAPPA, AGED ABOUT 86 YEARS, DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 004. SINCE DECEASED REPRESENTED BY HIS LRS ON RECORDS AS RESPONDENT NOS.7 TO 10

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SRI. K R SHIVA KUMAR, S/O SRI. K B RUDRAPPA, AGED ABOUT 65 YEARS, R/AT DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001.

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SRI. K R PRAKASH, S/O SRI. K B RUDRAPPA, AGED ABOUT 56 YEARS, R/AT DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001.

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SRI. K R THIPPESH, S/O SRI. K B RUDRAPPA, AGED ABOUT 53 YEARS, R/AT DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001.

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SRI K R PRABHU KUMAR, S/O SRI. K B RUDRAPPA, AGED ABOUT 45 YEARS, R/AT DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001.

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SMT. K R MADHU, W/O N V GIRISH, AGED ABOUT 48 YEARS, R/AT D.NO.1/1, 34^TH CROSS, JOGANAHALLI, II BLOCK, RAJAJINAGAR, BANGALORE - 560 010.

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SMT. SUNANDA R GUJJAR, W/O RAJANNA GUJJAR, AGED ABOUT 50 YEARS, R/AT DOOR NO.1/1, 34^TH CROSS, JOGANAHALLI, II BLOCK, RAJAJINAGAR, BANGALORE - 560 010. 13. SMT. HANUMAKKA, W/O LATE K. THIPPANNA, AGED ABOUT 60 YEARS, HOUSE HOLD KELAGOTE, CHITRADURGA - 577 501. 14. SMT. K T REKHA, W/O K R THIPPESH, AGED ABOUT 48 YEARS, HOUSE HOLD, K B R COMPLEX, NEAR TRISHUL THEATRE, POONA BANGALORE ROAD, DAVANAGERE - 577 001. 15. SMT. K S SHOBA, WIFE OF K R SHIVAKUMAR, AGED ABOUT 58 YEARS, HOUSE HOLD, DOOR NO.1991, PURANTAR HOSPITAL ROAD, MCC A BLOCK, DAVANAGERE - 577 001. ... RESPONDENTS

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(BY SRI.A.R.DESAI, ADVOCATE FOR R1 AND R3 TO R5; SRI.P.M.SIDDAMALLAPPA, ADVOCATE FOR R2; SRI.M.H.SAWKAR, ADVOCATE FOR R11 AND R12; SRI.SAMEER S.N., ADVOCATE FOR R15; SRI.M.N.GUFRAN, ADVOCATE FOR R13; NOTICE TO R14 IS HELD SUFFICIENT VIDE ORDER DATED 16.04.2021;

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LRS OF R6 ARE ALREADY ON RECORD VIDE ORDER DATED 16.04.2021; R7 TO R10 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS PASSED ON I.A.NO.31 IN O.S.NO.26/2010, DATED 19.01.2021 VIDE ANNEXURE-J AND ALSO TO SET ASIDE THE ORDERS PASSED ON I.A.NO.32 IN O.S.NO.26/2010 DATED 19.01.2021 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE MACT-VI AT DAVANAGERE VIDE ANNEXURE-K AND ETC.,

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IN W.P.NO.2141/2021

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BETWEEN :

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SRI. K R SHIVA KUMAR, S/O K B RUDRAPPA, AGED ABOUT 65 YEARS, R/AT DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001.

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SRI. K R PRAKASH, S/O K B RUDRAPPA, AGED ABOUT 59 YEARS, R/AT DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001.

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SRI. K R THIPPESH, S/O K B RUDRAPPA, AGED ABOUT 57 YEARS, R/AT DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001.

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SRI K R PRABHU KUMAR, S/O K B RUDRAPPA, AGED ABOUT 52 YEARS, R/AT DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001. ... PETITIONERS

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(BY SRI.UDAY HOLLA, SENIOR COUNSEL FOR SRI.VIVEK HOLLA, ADVOCATE) AND :

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SMT. A N INDUMATI, W/O A NAGARAJ, AGED ABOUT 70 YEARS, DOOR NO.9, 53-A CROSS, 16^TH MAIN, III 'Y' BLOCK, RAJAJINAGAR, BANGALORE - 560 016. 2. SMT. HEMALATHA S WALI, W/O SHIVAYOGI S WALI, AGED ABOUT 61 YEARS, NO. B-3, SFS APARTMENTS, NEAR SHARAVATHI STOP, YELAHANKA NEW TOWN, BANGALORE - 560 064. 3. SMT. B M VIJAYA, W/O B.MALLAPPA, AGED ABOUT 65 YEARS, DOOR NO.9, 53-A CROSS, 16^TH MAIN, III 'Y' BLOCK, RAJAJINAGAR, BANGALORE - 560 016. 4. SMT. K R NAGARATHNA, W/O S MUDDANNA,

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AGED ABOUT 51 YEARS, NO.2574, 7^TH A MAIN, 7^TH CROSS, RPC LAYOUT, VIJAYANAGAR, V STAGE, BANGALORE - 560 040.

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SMT. K R MALA, W/O K A MANJUNATH, AGED ABOUT 52 YEARS, DOOR NO.2718, GOWRI NILAYA, 11^TH MAIN, 11^TH CROSS, MCC 'B' BLOCK, DAVANAGERE - 577 004. 6. SRI. K R VEERANNA, S/O K B RUDRAPPA, AGED ABOUT 54 YEARS, DOOR NO.1990, PURANTAR HOSPITAL ROAD, MCC 'A' BLOCK, DAVANAGERE - 577 001. 7. SMT. K R MADHU, W/O N V GIRISH, AGED ABOUT 53 YEARS, R/AT D.NO.1/1, 34^TH CROSS, RAJAJINAGAR, BANGALORE - 560 016. 8. SMT. SUNANDA R GUJJAR, W/O RAJANNA GULLAR, AGED ABOUT 54 YEARS, DOOR NO.1/1, 34^TH CROSS, RAJAJINAGAR, BANGALORE - 560 016. 9. SMT. HANUMAKKA, W/O LATE K. THIPPANNA, AGED ABOUT 60 YEARS, KELAGOTE, CHITRADURGA - 577 501.

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SMT. K T REKHA, W/O K R THIPPESH, AGED ABOUT 59 YEARS, K B R COMPLEX, NEAR TRISHUL THEATRE, POONA BANGALORE ROAD, DAVANAGERE - 577 001.

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SMT. K S SHOBA, WIFE OF K R SHIVAKUMAR, AGED ABOUT 69 YEARS, DOOR NO.1991, PURANTAR HOSPITAL ROAD, MCC A BLOCK, DAVANAGERE - 577 004.

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... RESPONDENTS

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(BY SRI.B.R.SATHENAHALLI, ADVOCATE FOR R1 AND R3 TO R5;

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SRI.P.M.SIDDAMALLAPPA, ADVOCATE FOR R2; SRI.M.H.SAWKAR, ADVOCATE FOR R7 AND R8; SRI.D.R.RAVISHANKAR, ADVOCATE FOR R6; SRI.SAMEER S.N., ADVOCATE FOR R11; SRI.M.N.GUFRAN, ADVOCATE FOR R9; NOTICE TO R10 IS HELD SUFFICIENT VIDE ORDER DATED 24.03.2021)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 19.1.2021 ANENXURE-H PASSED BY THE COURT OF II ADDL SENIOR CIVIL JUDGE AND MACT-VI DAVANGERE ON AN APPLICATION (IA NO.32) FILED UNDER ORDER XI RULE 1 OF CP CODE IN O.S.NO.26/2010 AND FURTHER BE PLEASED TO REJECT THE SAID APPLICATION AND ETC.,

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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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These writ petitions are filed by the second to sixth defendants in O.S. No.26/2010 on the file of Second Additional Senior Civil Judge, Davanagere (for short, ' the civil Court' ). The question that arises for consideration is whether the civil Court has erred in allowing the plaintiffs' applications (I.A. Nos.31 and 32) permitting the respondentsplaintiffs to amend the plaint to include the additional properties and calling upon the defendants [the petitioners herein] to produce certain documents.

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The respondents have filed this suit in O.S. No.26/2010 for partition of certain immovable properties asserting that they are entitled for a share in these properties, and the suit is contested by the petitioners herein and other defendants. The parties have led their evidence, and the present applications are filed when the suit is scheduled for evidence.

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The first application [I.A. No.31] is filed under Order VI Rule 17 of Code of Civil Procedure (for short, 'the CPC' ) to include certain additional properties. The civil Court has allowed this application observing that some of the parties to the proceedings have purchased certain immovable properties after commencement of the suit, and also because the suit without inclusion of these properties would be bad in law as the suit would be for partial partition without including all the properties. The civil Court has opined that if the amendment is allowed, there would not be any change in the nature of the suit and the amendment is necessary for complete and effective adjudication. This Court, on hearing the learned counsel for the parties, and in the light of the reasons assigned by the civil Court, is not persuaded to opine that the civil Court has erred in allowing the application for amendment.

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The respondents-plaintiffs have filed the next application [I.A. No.32] under Order XI Rule 14 of CPC for a direction to the petitioners-defendants to produce about 21

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documents. The civil Court has partly allowed this application directing the petitioners-defendants to produce documents 2, 4 to 21. The petitioners have resisted this application, and in fact, they filed their written arguments on 11.02.2020 detailing as to why the documents would not be relevant. However, the civil Court has partly allowed this application observing that the petitioners' objection to the application is that their business is a private business and therefore the application cannot be considered, and the petitioners have not raised any objection except the same.

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Sri Udaya Holla, the learned Senior Counsel who appears for the petitioners in W.P. No.2141/2021, and Sri D.R. Ravishankar, the learned Counsel who appears for the petitioner in W.P No.1761/2021, submit that the civil Court has erroneously premised its order without considering the petitioners’ detailed objections. They assert that the petitioners have filed elaborate objections seriously disputing the relevance of the documents which are directed to be produced before the civil Court. They emphasize that it was incumbent upon the civil Court even under Order XI Rule 14

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of CPC to decide on the question of the relevance of the documents before it could call upon the petitioners to produce these documents.

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Sri Udaya Holla relies upon the decision of this Court in ANNAJI BABAJI BHOSLE VS. M/S. PATSON AGENCIES AND ANOTHER disposed of 14.10.1981 (ILR 1982 KAR 152) to contend that unless the Court specifically opined that documents are related to the controversy, it could not have exercised discretion in partly allowing the application. Sri Udaya Holla relies upon the paragraph 4 of the decision which reads as under:

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"There is no doubt that the learned Civil Judge has not correctly read the provisions contained in Order XI Rule 14 of the Code, which are as follows:

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"14. It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the

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Court may deal with such documents, when produced, in such manner as shall appear just.'

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From the aforesaid Rule, it is clear that it is open for the Court to make an order for the production of documents at any time during the pendency of the suit. No doubt, exercise of power under Rule 14 of Order XI of the Code, is discretionary and is subject to two conditions being satisfied viz., (1) The document, the production of which is sought for, must be in the possession or power of the party against whom the direction is sought for; and (2) the documents must relate to the controversy involved in the suit. It need not be pointed out that the discretion must be exercise judicially and not arbitrarily. In the instant case, the learned Civil Judge has not referred to the documents, the production of which is sought for by the petitioner. It is also not stated as to how the documents in question are not relevant to the controversy involved in the suit."

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The underlining is by this Court

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Sri D.R. Ravishankar also reiterates that the question of relevance has not been examined and the impugned order must be invalidated restoring the application for

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reconsideration in the light of the petitioners’ objections and the decision as aforesaid.

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Sri P.M. Siddamallappa, the learned Counsel for the second respondent, and Sri M.H. Sawkar, the learned Counsel for seventh and eighth respondents, submit that the relevance of the documents has been considered by the civil Court and in fact, Sri P.M. Siddamallappa has taken this Court through paragraph 8 of the impugned order.

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On perusal of paragraph-8 of the impugned order, this Court is not persuaded to opine that the civil Court has considered relevance of the documents to the controversy. In the light of the decision of this Court in Annaji Babaji Bhosle case (supra), it must be opined that it was incumbent upon the civil Court to not only to examine as to whether the petitioners have the custody of the documents but should also have examined the question as to whether the documents are related to the controversy.

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Further, there is an obvious error in not considering the merits of the application in the light of the objections/written arguments filed by the petitionersdefendants as pointed out by Sri Udaya Holla and Sri D.R. Ravi Shankar. The civil Court could not have premised its order in the reasoning that the petitioners have not objected to the application insofar as the documents mentioned in the application.

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Sri P.M. Siddamallappa emphatically submits that though this Court has directed early disposal of the suit within six months and it has been more than two years since then, but the suit has not been disposed of. Sri D.R.Ravi Shankar refutes that the delay is because of the petitioners stating that the respondents, who have filed the repeated applications, cannot blame the petitioners for any delay. These submissions are recorded to reiterate the directions to the civil Court for expeditious disposal of not only the applications but also the suit. For the foregoing reasons, the following:

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ORDER

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(a) The petition in W.P. No.2141/2021 is allowed in full and W.P No.1761/2021 is allowed in part invalidating the order of the civil Court dated 19.1.2021 in O.S. No.26/2010 on the file of the II Additional Senior Civil Judge and MACT-VI , Davanagere, insofar as I.A. No.32 which is filed under Order XI Rule 14 of CPC.

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(b) This application is restored for reconsideration in the light of the decision of this Court Annaji Babaji Bhosle vs. M/s. Patson Agencies and Another (supra).

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(c) The civil Court shall dispose of the application within a period of four [4] weeks from the date of receipt of a certified copy of this order. The civil Court shall also make every endeavour to dispose of the suit expeditiously within the outer limit of nine [9] months.

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Sd/-

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JUDGE

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Sri. K. R. Shivakumar v. Smt. a. N. Indumati

Case brief

What is this about?

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Sri. K. R. Shivakumar v. Smt. a. N. Indumati

Case brief

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