Allowed

Bharatkumar S/O Indurao Rangole v. Sharadkumar S/O Indurao Rangole

Karnataka HC7 Feb 2023WP/100113/2023

Case brief

AI extract

What is this about?

High Court of Karnataka allowed a writ petition challenging the trial court's order rejecting applications to reopen a partition suit case for further examination and recall of a witness. The High Court set aside the impugned order and permitted the applications.

What did the court decide?

Impugned order dated 02.01.2023 set aside; Applications for reopening case, recall of DW1, and production of documents allowed.

Bharatkumar S/O Indurao Rangole Vs Sharadkumar S/O Indurao Rangole — Partition | Karnataka HC (2023)

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WP No. 100113 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR WRIT PETITION NO. 100113/2023 (GM-CPC)

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BETWEEN:

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BHARATKUMAR S/O INDURAO RANGOLE, AGE: 72 YEARS, OCC.: AGRICULTURE, R/O. AKKOL-591211 TQ. CHIKKODI, DIST.BELAGAVI.

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PETITIONER

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(BY SRI. SHRIHARSH A NEELOPANT, ADVOCATE)

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AND:

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SHARADKUMAR, S/O INDURAO RANGOLE, AGE: 79 YEARS, OCC.: AGRICULTURE & PRIVATE SERVICE, R/O. AKKOL-591211 TQ. CHIKKODI, DIST.BELAGAVI.

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad

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KERABA BHAVU KUNAKEKAR, AGE: 64 YEARS, OCC: AGRICULTURE, R/O MUGALI-416218, TQ: KAGAL, DIST.: KOLHAPUR, MAHARASHTRA STATE.

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VIPIN S/O ASHOK KHAVALE, AGE: 44 YEARS, OCC.: AGRICULTURE, R/O. AKKOL-591211 TQ. CHIKKODI, DIST.BELAGAVI.

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AJITKUMAR S/O INDURAO RANGOLE, AGE: 81 YEARS, OCC.: RETIRED, R/O CTS NO. 2392, PLOT NO. 3, AMIT APARTMENT, KACHERI GALLI, SHAHAPUR, BELAGAVI-590 003, TQ/ DIST.: BELAGAVI.

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WP No. 100113 of 2023

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SMT. NANDA ABHAYKUMAR RANGOLE, AGE: 79 YEARS, OCC.: HOUSEHOLD WORK, R/O HOUSE NO. 28, WAGOLE GALLI, KHANAPUR-591 302, TQ: KHANAPUR, DIST.: BELAGAVI.

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SUDARSHAN ABHAYKUMAR RANGOLE, AGE: 44 YEARS, OCC.: HOUSEHOLD WORK, R/O HOUSE NO. 28, WAGOLE GALLI, KHANAPUR-591 302, TQ: KHANAPUR, DIST.: BELAGAVI.

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SMT. SUCHITRA SANJAY KULKARNI, AGE: 46 YEARS, OCC.: HOUSEHOLD WORK, R/O NEAR BASTI, SHAZI GALLI CORNER, BELAGAVI-590 003, TQ/ DIST.: BELAGAVI.

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RESPONDENTS (BY SRI. RAMESH I. ZIRALI, ADVOCATE FOR R1, NOTICE TO R2, R3, R5 & R6 IS SERVED, NOTICE TO R4 & R7 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 02.01.2023 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, NIPANI IN O.S.NO.124/2017 (OLD O.S.NO.90/2011) DISMISSING I.A.NO.XXIII, XXIV AND XXV FILED BY THE PETITIONER SEEKING REOPENING OF THE EVIDENCE OF DW-1 FOR CROSS EXAMINATION AS PER ANNEXURE-A & ETC.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING ORDER.

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3 - WP No. 100113 of 2023

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ORDER

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This writ petition is directed against the impugned order dated 02.01.2023 passed on I.A. Nos. 23, 24 and 25 in O.S. No. 124/2017 (old No. 90/2011) on the file of the Senior Civil Judge and JMFC, Nipani, whereby the said applications filed by the petitionerdefendant No.1 under Order XVIII Rule 17 CPC, Sec. 151 CPC and Sec. 151 CPC respectively seeking reopening of the case, recalling of DW1 for further examination-in-chief and for permission to produce documents, was rejected by the trial Court.

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I have heard learned counsel for the petitioner and the learned counsel for respondent No.1 and perused the material on record including the impugned order. Though notice of this petition was served on the respondents No. 2, 3, 5 and 6, they have remained unrepresented. Notice to respondents No. 4 and 7 is dispensed with at the request of the petitioner.

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Learned counsel for the respondent No.1 not opposed the petition.

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A perusal of the material on record will indicate that the respondent No.1-plaintiff instituted the aforesaid suit for partition

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WP No. 100113 of 2023

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and separate possession of his alleged share in the suit schedule properties. The petitioner is arrayed as defendant no.1 in the said suit and he is contesting the same while the respondents No.2 to 7 are arrayed as the remaining defendants. After the respondent No.1-plaintiff adduced oral and documentary evidence, the petitioner examined himself as DW1 and was examined by the respondents. Subsequently, the petitioner filed the instant applications, I.A. Nos. 23 to 25 seeking reopening of the case, recalling of DW1 and for permission to produce documents and the said applications having been opposed by the respondent No.1plaintiff, the trial Court proceeded to pass the impugned order rejecting the said applications aggrieved by which the petitioner is before this Court by way of the present writ petition.

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A perusal of the impugned order will indicate that the trial Court has adopted a hyper-technical approach in not permitting the petitioner to adduce further evidence without appreciating that the delay on the part of the petitioner in seeking indulgence in the matter was due to bonafide reasons, unavoidable circumstances and sufficient cause. By adopting a justice oriented approach and in order to provide one more opportunity to the petitioner, I deem it

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WP No. 100113 of 2023

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just and proper to set aside the impugned order and allow the

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application filed by the petitioner.

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For the foregoing reasons, I pass the following order.

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ORDER

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i) Writ Petition is allowed;

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ii) Impugned order dated 02.01.2023 is set aside;

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iii) Consequently, applications I.A. Nos. 25, 26 and 27 filed by the petitioner-defendant No.1 under Order XVIII Rule 17 CPC, Sec. 151 CPC and Sec. 151 CPC respectively seeking reopening of the case, recalling of DW1 for further examination-in-chief and for permission to produce documents, are allowed;

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SD/JUDGE

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BVV

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List No.: 1 Sl No.: 59

Bharatkumar S/O Indurao Rangole v. Sharadkumar S/O Indurao Rangole

Case brief

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Bharatkumar S/O Indurao Rangole v. Sharadkumar S/O Indurao Rangole

Case brief

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What did the court decide?

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