Allowed

Smt Sobhamma v. Smt Jayamma

Karnataka HC13 Dec 2021WP/21983/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka under Article 227 allowed a writ petition quashing an order that rejected applications to reopen a partition suit. The court permitted the petitioner to cross-examine a witness and lead evidence within a specified timeframe despite procedural lapses.

What did the court decide?

The civil Court's impugned order dated 23.11.2021 is invalidated, and the petitioner is permitted to cross-examine DW-1 on 16.12.2021 and complete evidence within six weeks.

Smt Sobhamma Vs Smt Jayamma — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF DECEMBER 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.21983/2021 (GM-CPC)

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BETWEEN :

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SMT. SOBHAMMA, W/O MANJUNATH REDDY, AGED ABOUT 50 YEARS, R/AT SHETTAHALLI VILLAGE, MARSUR POST, ANEKAL TALUK, BENGALURU URBAN DISTRICT PIN 562 106.

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... PETITIONER

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(BY SRI. V.SHIVAKUMAR, ADV., AND SRI. M.V.MANJUNATHA, ADV.,)

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AND :

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1 . SMT JAYAMMA, D/O LATE C MUNIREDDY, W/O LATE M G NARAYANA, AGED ABOUT 79 YEARS, R/AT GOPASANDRA VILLAGE, MUTHANALLURU POST, ANEKAL TALUK, BANGALORE URBAN DISTRICT-560 099.

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2 . SMT RADHAMMA, W/O RAMACHANDRA REDDY, AGED ABOUT 75 YEARS, R/AT CHINNAUBBUNUR VILLAGE AND POST, THALI-VIA DENKANIKOTE TALUK, KRISHNAGIRI DISTRICT,

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TAMIL NADU-635 118.

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3 . SMT SUSUHEELAMMA, W/O NARAYAN REDDY, AGED ABOUT 77 YEARS, R/AT KAMBLIPURA VILLAGE, MAYASANDRA POST, ATTIBELE HOBLI AND VIA ANEKAL TALUK, BANGALORE URBAN DISTRICT-562 107.

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4 . SMT JAYALAKSHMAMMA, W/O LATE NARAYAN REDDY, AGED ABOUT 73 YEARS, R/AT LAKSHMISAGARA VILLAGE, NERALUR POST, ANEKAL VIA ANEAL TALUK, BANGALORE URBAN DISTRICT-562 107.

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SMT GOWRAMMA, W/O LATE C MUNIREDDY, AGED ABOUT 89 YEARS (DEAD- LRS ON RECORD)

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SMT SAROJAMMA, W/O NARAYAN REDDY, AGED ABOUT 71 YEARS, R/AT SARAKAPALLI VILLAGE AND POST, MADHAGONDAPALLI VIA, DENKANIKOTE TALUK, KRISHNAGIRI DISTRICT, TAMIL NADU-635 114.

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6 . SMT PARAVATHAMMA, W/O RAMASWAMY REDDY, AGED ABOUT 69 YEARS, R/AT ICCHANGURU VILLAGE,

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BAGALUR VIA, HOSUR HEAD POST OFFICE AND TALUK, KRISHNAGIRI DISTRICT, TAMIL NADU-635 114.

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SRI VEERA REDDY, S/O LATE C MUNIREDDY (DIED LRS ALREADY ON RECORD)

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SRI MANJUNATH REDDY, S/O LATE C MUNIREDDY, AGED ABOUT 53 YEARS, R/AT SHETTAHALLI VILLAGE, MARSUR POST ANEKAL TALUK, BANGALORE URBAN DISTRICT-562 106.

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8 . SMT PUSHPALATHA, W/O NARAYAN REDDY, D/O LATE C MUNIREDDY, AGED ABOUT 49 YEARS, R/AT YADAVANAHALLI VILLAGE AND POST, ATTIBELE HOBLI AND VIA ANEKAL TALUK, BENGALURU URBAN DISTRICT-562 107.

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9 . SRI S V VINOD KUMAR, S/O VEERA REDDY, AGED ABOUT 37 YEARS, R/AT BOMMASANDRA VILLAGE AND POST, INDL., AREA VIA, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT-562 107.

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10 . SMT VINUTHA, W/O RAMANATH, AGED ABOUT 35 YEARS, R/AT BOMMASANDRA VILLAGE AND POST, INDL., AREA VIA ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT-562 107.

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11 . VEENA, D/O MANJUNATH REDDY, AGED ABOUT 33 YEARS,

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12 . VIDHYA, D/O MANJUNATH REDDY, AGED ABOUT 35 YEARS,

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13 . VANI, D/O MANJUNATH REDDY, AGED ABOUT 33 YEARS, R-11 TO R-13 ARE R/AT SHETTAHALLI VILLAGE, MARSUR POST, ANEKAL TALUK, BANGALORE URBAN DISTRICT-562 106.

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14 . SMT ANITHA, W/O VINOD KUMAR, AGED ABOUT 38 YEARS, 15 . SMT SARIYU, D/O VINOD KUMAR, AGED ABOUT 16 YEARS, MINOR, REPRESENTED BY HER NATURAL GUARDIAN FATHER S V VINOD KUMAR RESP.NO.9 16 . SMT PRAMEELAMMA, W/O VEERA REDDY, AGED ABOUT 58 YEARS, R-14 TO R-16 ARE R/AT SHETTAHALLI VILLAGE, MARSUR POST, ANEKAL TALUK, BANGALORE URBAN DISTRICT-562 106. 17 . S SHIVASHANKAR, S/O L SRINIVASA REDDY, AGED ABOUT 43 YEARS, R/AT YAMARE VILLAGE, DOMMASANDRA POST, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT PIN-562 125.

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... RESPONDENTS

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(BY SRI. B.C.VENKATESH, ADV., FOR C/R-1)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE / QUASH THE IMPUGNED ORDER DTD. 23.11.2021 VIDE ANNX-A PASSED BY THE HONBLE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL DISMISSING THE APPLICATIONS FILED BY THE PETITIONER FOR REOPEN AND RECALL IN I.A. Nos.17 AND 18 IN O.S. NO.229/2007 CONSEQUENTLY ALLOW THE I.A. Nos.17 AND 18 FILED BY THE PETITIONER BEFORE THE TRIAL COURT.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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The petitioner is the ninth defendant in O.S. No.229/2007, a suit for partition, on the file of the Principal Senior Civil Judge and JMFC, Anekal [for short 'the civil Court' ]. The civil Court by the impugned order has rejected the petitioner's application for reopening of the case and recalling one of the witnesses (DW-1).

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The plaintiff’s witnesses have been crossexamined on behalf of the petitioner, and the witness examined on behalf of some of the defendants viz., DW1 is not cross-examined. This witness is examined by

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some of the defendants to support the plaintiff’s case for partition. The petitioner relies upon a Testamentary document in support of her defense against the partition. The petitioner, in support of the applications for reopening of the case and recalling DW-1, has stated that she was constrained to engage another learned counsel to represent her, and only for bona fide reasons, DW-1 is not cross-examined on her behalf. The civil Court has rejected the petitioner's applications opining that once the suit is posted for judgment after closure of hearing, the applications cannot be entertained.

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In support of the petition, the learned counsel for the petitioner submits that the petitioner is hard of hearing and she has placed necessary material before the civil Court to substantiate the same. The petitioner, who is constrained to change the learned counsel, could not contact the present counsel and instruct for crossexamination of DW-1 only because of the COVID-19

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restrictions, and she is bona fide in filing the applications. The learned counsel for the contesting respondents points out that after the witness [DW-1] is examined, the suit is adjourned on fifteen occasions but the petitioner has not chosen to ensure that this witness is cross-examined.

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The merits of the petitioner's case for

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reopening of the case and recalling DW-1 for crossexamination with leave to lead evidence is examined in the light of her plea based on a Will executed in her favour, the reasons assigned for failure to crossexamine the witness and the settled law that the applications are not entertained after the suit is set down for the judgment is essentially as a self-restraint and not as an iron-cast rule to prevail under all circumstances. This Court is of the considered view that the petitioner must have the liberty to cross-

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examine DW-1 and also lead further evidence but in a certain time-frame. Therefore, the following:

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ORDER

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(i) The petition is allowed and the civil

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Court's impugned order dated 23.11.2021 is invalidated.

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(ii) The petitioner is permitted to crossexamine DW-1 on the next date of hearing viz., 16.12.2021 without seeking adjournment and also complete her evidence within a period of six weeks from the date she is called upon by the civil Court to lead evidence.

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SD/JUDGE

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RK/Ct: SN

Smt Sobhamma v. Smt Jayamma

Case brief

What is this about?

What did the court decide?

Smt Sobhamma v. Smt Jayamma

Case brief

What is this about?

What did the court decide?

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