Partly allowed

Sri J Perumal @ J Perumal Naidu v. Sri J Venkatesan

Karnataka HC25 Mar 2022WP/26597/2017

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed under Article 227 quashing a trial Court order that directed a witness to produce salary and pension details of a defendant in a partition suit, as the petitioners failed to demonstrate efforts to obtain documents independently.

What did the court decide?

Writ petition allowed in-part; impugned order dated 12.06.2017 on IA.No.1/2017 quashed.

Sri J Perumal @ J Perumal Naidu Vs Sri J Venkatesan — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MARCH 2022

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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WRIT PETITION No.26597 OF 2017 (GM-CPC)

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BETWEEN:

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Sri J. Perumal @ J Perumal Naidu, S/o. M.Jayaram Naidu, Aged about 60 years, R/at No.14/2, Mariyaman Temple Street, Jaibharath Nagar, Bengaluru-560 033. .. Petitioner

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( By Sri H.R.Anantha Krishna Murthy, Advocate )

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AND:

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Sri J.Venkatesan, S/o M.Jayaram Naidu, Aged about 58 years, R/at No.14/2, Mariyaman Temple Street, Jaibharath Nagar, Bengaluru-560 033.

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Sri J.Venkataramaiah, S/o M.Jayaram Naidu, Aged about 57 years, R/at No.14/2, Mariyaman Temple Street, Jaibharath Nagar, Bengaluru-560 033.

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Smt. J. Rukumani,

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W/o Srinivasan,

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WP.No.26597/2017

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D/o. M. Jayaram Naidu, Aged about 53 years, R/at No.2,816, 2^nd Cross, Irumbi Road, T.C.M.Junction Vanur (T.K), Villupuram District, Tamil Nadu-605 111.

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Smt. Vanaja, D/o. M. Jayaram Naidu, Aged about 56 years, R/at No.14/2, Mariyaman Temple Street, Jaibharath Nagar, Bengaluru-560 033.

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Sri P. Sampath Kumar Mohan, S/o J. Perumal @ J.Perumal Naidu, Aged about 33 years, R/at No.14/2, Mariyaman Temple Street, Jaibharath Nagar, Bengaluru-560 033. 6. Arunav Trust Office: Keerthi Apartmant, No.120/2, Flat 1 A 1^st Cross, 6^th Main, Chellakere, Kalayan Nagar Post, Bengaluru-560 043. Represented by its Secretary, Sri Bheeme Gowda, Aged about 54 years, S/o Varadappa.

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Sri P. Arumugam, Major in Age, S/o Parugunam, R/at Vanigar Street, Old No.27, Thirupurpur,

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WP.No.26597/2017

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Chengal Patt Post & Taluk, Kanchipuram District, Tamilnadu. .. Respondents (By Sri Venkatarama Reddy, Advocate For R-1 to R-3; Respondent Nos.4, 5 and 7 are served; Service to Respondent No.6 held sufficient vide Court dated 19.11.2019)

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This Writ Petition is filed under Article 227 of the Constitution of India praying to issue a writ of certiorari or any other writ or order, quashing the order dated 12.06.2017, IA.1/2017, passed in O.S.No.26013 of 2008, passed by the City Civil Judge at Bengaluru, vide Annexure-E and for costs and any other relief as this Hon’ble Court may deem fit, in the interest of justice.

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This Writ Petition coming on for Preliminary Hearing in `B’ Group through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following:

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ORDER

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The present respondent Nos.1, 2 and 3 have filed a suit against the petitioner and respondent Nos.4 to 7 arraying them as defendant Nos.1 to 5 respectively in O.S.No.26013/2008, on the file of learned XXVIII Addl.City

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Civil & Sessions Judge, Bengaluru, (hereinafter for brevity referred to as `trial Court’), for the relief of equitable partition and separate possession of the suit schedule properties and also for a direction to render the accounts

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WP.No.26597/2017 4

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relating to M/s.Mohan and Company and other establishments. During the pendency of the suit, the plaintiffs filed IA.No.I/2017 under Order XVI Rule 6 read with Section 151 of Code of Civil Procedure, 1908, seeking a direction to the witnesses named in the application to produce the documents mentioned in the application. The trial Court by its impugned order dated 12.06.2017, disposed of the said IA.No.I/2017 and directed witness No.1 shown in IA.No.I/2017 to produce the salary particulars and other benefits obtained by defendant No.1 for a particular period and also the pension details of defendant No.1. It is challenging the said order, the defendant No.1 has preferred the present writ petition.

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The learned counsel for the petitioner in his brief argument submitted that when the plaintiffs have approached the Court by instituting a suit, it is for them to prove their case on their own leg and they cannot take the aid of the defendants to prove their plaint averments. He also submitted that throughout the contention of defendant

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WP.No.26597/2017

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No.1 is about non-existence of a joint family among the parties to the litigation and also the defendant No.1 is not being a karta of alleged joint family. In such a situation, if at all the plaintiffs are intended to prove their case for partition, it is for them to prove the joint family and the nucleus and the utilisation of fund of the corpus of the nucleus if any for the purchase of suit schedule properties. In that direction, they cannot make use of the defendants

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or their contacts or connections, including their bank officials to summon the documents. However, while concluding his argument, learned counsel for the petitioner submitted that the plaintiffs, as applicants in IA.No.I/2017, have no where mentioned that they have made any attempt to secure those documents on their own by approaching the proposed witness No.1 i.e., the Principal of High School, however, they failed to secure those details, as such, they have sought for a direction of the Court for production of those documents.

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WP.No.26597/2017 6

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Even though the respondent Nos.1 to 3 are being represented by their learned counsel, however, the said learned counsel, for the reasons best known to him, has remained absent on few dates of hearing. Thus, on 17.03.2022, this Court by observing that learned counsel for respondent Nos.1 to 3 was neither present physically nor through Video Conference, had made it clear to the respondents that in case if they fail to appear on the next date of hearing, the Court would proceed to hear the learned counsel present in the matter and proceed further in the matter. Despite such an observation, the respondents, more particularly, the learned counsel for respondent Nos.1 to 3 has remained absent today. As such, the Court was constrained to proceed further in the matter.

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It is not in dispute that IA.No.I/2017 filed in the trial Court was in the suit for partition and separate possession and for rendition of accounts. No doubt, the plaintiffs in their plaint have taken a contention that

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WP.No.26597/2017 7

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defendant No.1 had no sufficient source of income to secure several of the suit schedule properties by himself and independent of the joint family nucleus, however, it is for the plaintiffs to prove the existence of joint family property and the corpus of the joint family. No doubt, certain of the matters which are exclusively within the knowledge and accessibility of the opposite party in a suit, the other party to the litigation with the leave of the Court may summon those documents to be placed before the Court. However, before doing that, he should convince the Court that the required documents are very much vital and necessary for the adjudication of the matter and that they are under sole control or custody of the other party and further that, despite his maximum lawful effort, he could not lay his hand on those documents or could not secure those information.

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However, in the instant case, as submitted by learned counsel for the petitioner, no where the applicants in IA.No.I/2017 filed in the trial Court have whispered about they putting any effort in securing the details of the salary

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WP.No.26597/2017 8

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particulars of defendant No.1, as well his pensionary benefits and the pension income. They have not even stated as to whether they have approached the concerned authorities running the High School, including the Principal

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of the High School and requesting them to give any such information to them. They have not even stated in their application that they have made all efforts to secure those details on their own, but, they could not and that those information are very much important and necessary for adjudication of the matter. In such circumstance, when the trial Court has rejected a similar prayer in the same IA. filed for production of documents as against other authorities, it is not known as to how it allowed the prayer in IA.No.I/2017, confining it to the proposed witness No.1. In the process, the trial Court has not noticed that the applicants before it have not convinced the Court that they had made efforts in securing those information or documents, but, their attempts went in futile.

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WP.No.26597/2017 9

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Thus, since summoning of a document or securing certain information cannot be ordered merely because it is asked, however, the trial Court appears to have did it by allowing IA.No.I/2017 in part, I am of the view that the said order deserves to be set aside, however, reserving liberty to the applicants therein to file a similar application confining to the proposed witness No.1 and sought for the documents afresh in accordance with law.

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With the said observation and ordering accordingly, the Writ Petition stands allowed in-part and the impugned order dated 12.06.2017, passed by the learned XXVIII Addl.City Civil and Sessions Judge, Bengaluru, on IA.No.I/2017, filed in O.S.No.26013/2008, stands quashed.

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Sd/JUDGE

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bk/

Sri J Perumal @ J Perumal Naidu v. Sri J Venkatesan

Case brief

What is this about?

What did the court decide?

Sri J Perumal @ J Perumal Naidu v. Sri J Venkatesan

Case brief

What is this about?

What did the court decide?

What the court decided

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