High Court allowed a writ petition quashing Senior Civil Judge's order rejecting applicants' interim applications for additional evidence and amendment under CPC in a partition suit appeal, directing reconsideration.
Impugned order quashed; Interim applications restored for reconsideration within 8 weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 14522 OF 2020 (GM-CPC)
BETWEEN:
ALL ARE R/AT YARACHIKKANAHALLI, HONNALI TALUK-577217 DAVANAGERE DISTRICT.
…PETITIONERS
(BY SRI. S V PRAKASH AND SRI. UMESH MOOLIMANI,
ADVOCATES)
AND:
DAVANAGERE DISTRICT.
AGED ABOUT 55 YEARS,
BOTH ARE R/AT YARACHIKKANAHALLI, HONNALI TALUK-577217 DAVANAGERE DISTRICT.
…RESPONDENTS
(BY SRI. SAMUEL S DANDIN, ADVOCATE FOR R1;
R2 SERVED - UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE COMMON ORDER DATED 11.09.2020 PASSED BY THE COURT OF LEARNED SENIOR CIVIL JUDGE AND JMFC HARIHARA ON I.A.NO.11 AND I.A.NO.12 IN R.A.NO.14/2014 PRODUCED AS ANNEXURE-S TO THE WRIT PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is by the appellants in R.A.No.14/2014 on the file of the Senior Civil Judge and JMFC, Harihara (for short, ' the appellate Court '). The petitioners have impugned the appellate Court's order dated 11.09.2020, and the appellate Court by this impugned order has rejected the petitioners' applications (I.A.Nos.11 and 12) under Order XLI
Rule 27 and Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short, ' CPC' ) imposing cost of Rs.200/-. The appellate Court has rejected these applications on the dual grounds that the applications are filed belatedly, and the amendment would be contrary to the grounds urged in the appeal as against the impugned judgment and decree in the suit.
third respondent while the plaintiff [the first respondent in this petition] is arrayed as the first respondent and the other brother - Sri. Basavarajappa is arrayed as the second respondent. The mother has died on 13.06.2015, and the petitioners have filed an application for leave to participate in the appeal as her legatees under the last Will and Testament dated 31.01.2015. This application, which is filed on 29.07.2015, is allowed on the same day.
27 of CPC, which is for leave to produce the two Wills and Testaments dated 31.01.2015 executed by the parents, Sri S V Prakash submits that these documents must be taken on record to enable complete adjudication as permissible under Order XLI Rule 27 of CPC. He elaborates that for complete and effective adjudication, the question of
who will succeed to the parents' interest in the subject property will have to be necessarily decided and for such adjudication, the Wills and Testaments dated 31.01.2015 ought to be received with the appellate Court next deciding whether recourse must be added to the procedure contemplated under Order XLI Rule 28 of CPC.
ORDER
The petition is allowed, and the impugned order
dated 11.09.2020 in R.A.No.14/2014 on the file of the Senior Civil Judge and JMFC, Harihara is quashed. The applications (I.A.Nos.11 and 12) are
restored for reconsideration in the light of this Court's observation as aforesaid. The appellate Court shall so consider the applications within a period of 8 [eight] weeks from the date of receipt of a certified copy of this order.
Sd/JUDGE
RB
3 issues framed by the court
Whether the High Court should set aside the appellate Court's order rejecting the petitioners' applications for additional evidence and amendment under Order XLI Rule 27 of the CPC.
Whether the applications filed after the death of the parents and their replacement as legatees justify reconsideration of the rejection based on delay.
Whether the appellate Court erred in not considering the necessity of examining succession issues for complete adjudication in the appeal.
4 provisions across 2 enactments
H G Mooneshwarappa
H G Maheshappa
H G Hanumanthappa
Sadashivappa
Basavarajappa
B M Shyam Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
