Allowed

Smt. T P Manjula v. K M Sarojamma

Karnataka HC5 Apr 2023WP/2633/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing a civil court order that rejected an application to recall a witness and produce documents. The writ court held that these applications cannot be considered in isolation and quashed the rejection to allow cross-examination, directing the civil court to consider a pending application for producing original documents.

What did the court decide?

Quashed the impugned order of the civil court; allowed the application to recall DW.2 for cross-examination; directed the civil court to consider the pending application under Order VIII Rule 1A(3) of

Smt. T P Manjula Vs K M Sarojamma — Property and Title | Karnataka HC (2023)

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WP No. 2633 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF APRIL, 2023

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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. 2633 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. T. P. MANJULA, W/O LATE K. M. SUBRAMANYA, AGED ABOUT 57 YEARS

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K. S. KAVYA, D/O LATE K. M. SUBRAMANYA, AGED ABOUT 31 YEARS

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K. S. SUMAN, S/O LATE K. M. SUBRAMANYA, AGED ABOUT 27 YEARS

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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ALL THE PETITIONERS ARE PERMANENT RESIDENTS OF KAKOLU VILLAGE, HESARAGATTAHOBLI, BANGALORE NORTH ADDITIONAL TALUK, BANGALORE RURAL DISTRICT - 560 089 NOW CURRENTLY RESIDING AT NO.758, 2^ND FLOOR, 8^TH MAIN, 3^RD BLOCK, KORAMANGALA, BANGALORE SOUTH, BANGALORE - 560 034.

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…PETITIONERS

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(BY SRI. SADANAND G. SHASTRI.,ADVOCATE)

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WP No. 2633 of 2023

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AND:

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K. M. SAROJAMMA, W/O K. RAMAIAH, AGED 69 YEARS, R/AT NO.486, "KALASHREE", VENKATARAMANA TEMPLE STREET, OPPOSITE TO PASSPORT OFFICE, KORAMANGALA, BANGALORE - 560 095.

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K. P. SUNIL KUMAR, S/O SRI PUTTARAGAVAIAH (S/O LATE K. M. SOWBAGYA) AGED ABOUT 43 YEARS, OCCUPATION - DRIVER, R/AT NO.486, "KALASHREE", VENKATARAMANA TEMPLE STREET, OPPOSITE TO PASSPORT OFFICE, KORAMANGALA, BANGALORE - 560 095.

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K. M. SUVARNA, W/O B. S. PRABHAKARA, AGED ABOUT 62 YEARS, OCCUPATION HOUSEHOLD WORK, R/AT 20/1, "DATTATREYA NILAYA", 3^RD MAIN, MEENAKSHI NAGAR, BASAVESHWARA NAGAR, BANGALORE - 560 066.

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K. M. SARASWATHAMMA, W/O JAYARAMMAIAH, AGED ABOUT 57 YEARS, OCCUPATION HOUSEHOLD WORK, R/AT NO.202, NEW KRISHNAPPA BUILDING, OPPOSITE TO OM SHAKTHI TEMPLE, VARTHUR MAIN ROAD, SIDDAPURA, BANGALORE - 560 066.

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WP No. 2633 of 2023

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SMT. MUNIVENKATAMMA, W/O LATE CHIKKAMUNIHUCHAIAH, AGED ABOUT 89 YEARS, PERMANENT RESIDENT OF KAKOLU VILLAGE, HESARAGHATTA HOBLI, BANGALORE NORTH ADDITIONAL TALUK, BANGALORE RURAL DISTRICT - 560 089.

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…RESPONDENTS

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(BY SMT. RAMULA K. FOR SRI. PRASANNA KUMAR P., ADVOCATES FOR R1 TO R4; NOTICE TO R5 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE ORDER DATED 25.01.2023, PASSED BY PRINCIPAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, IN O.S.NO.19/2013 VIDE ANNXURE-H AND CONSEQUENTLY ALLOW THE I.A.NO.10/2022 DATED 05.12.2022 FILED BY THE PETITIONERS HEREIN VIDE ANNXURE-F IN TOTO.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is by the second to fourth defendants in O.S. No.19/2013 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru [for short, 'the civil Court' ]. The

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WP No. 2633 of 2023

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petitioners have impugned the civil Court's order dated 25.01.2023, and the civil Court by this order has rejected the petitioners' application [I.A. No.10] under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 [for short, 'the CPC' ] for recalling of DW.2, one of the petitioners' witnesses, and for leave to produce documents.

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The civil Court has reasoned that the

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petitioners have not filed the relevant documents at the earlier stage; that the petitioners cannot have recourse to the provisions of Order XVIII Rule 17 of CPC to fill up the lacuna; that the learned counsel for the petitioners are incorrect in stating that they did not have the opportunity of addressing arguments on the earlier set of applications viz., [I.A. Nos.5 and 6].

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It is undisputed that the petitioners, along with the subject application, have filed another application under Order VIII Rule 1A[3] read with Section 151 of CPC for leave to produce the

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WP No. 2633 of 2023

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documents as mentioned in the list appended to the application. This application remains pending, but the documents being received by the civil Court are placed in safe custody. The learned counsel for the petitioners and the contesting respondents are heard for final disposal.

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While the learned counsel for the petitioners argues in support of the petition relying upon the reasons stated in the affidavit accompanying the application and impugning the reasons assigned, the learned counsel for the respondents [the plaintiffs] submits that it is settled that the applications cannot be filed for leave to produce the documents to cover up the lacuna and later applications for leave to file documents cannot be entertained unless the applicant/s demonstrate bonafides for not producing the documents earlier.

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The petitioners have filed two applications

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i.e., the subject application and application for leave

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WP No. 2633 of 2023

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to produce original documents, and this later application is not disposed of and is pending consideration. The application for leave to recall of the witnesses through whom the documents is to be marked is rejected, and this application could not have been considered in isolation. Further, it is seen from the records that if the contesting respondents assert that the suit schedule properties are joint family properties, the petitioners have resisted the suit disputing the contesting respondents' case.

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It is now contended that the petitioners' essential defense is that the contesting respondents have given up their interest in the subject properties in consideration of the amount received from the petitioners, and that the documents now produced substantiate the same and production of these documents become crucial. It is settled that the Courts must lean in favour of a decision on merits avoiding pedantic approach. In the present case, it

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WP No. 2633 of 2023

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would be possible if the relevant materials are brought on record. The relevance and probative value can always be examined for a just decision in law. In the light of the afore, this Court is of the considered view that the civil Court's reasoning cannot be accepted. Therefore, the following:

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ORDER

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[a] The petition is allowed, quashing the impugned order dated 25.01.2023 in O.S. No.19/2013 on the file of the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru on the petitioners' application [I.A. No.10] under Order XVIII Rule 17 read with Section 151 of the CPC is quashed, allowing the petitioners' application and recalling DW.2 for further cross examination.

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[b] The civil Court shall also consider the pending application under Order VIII Rule 1A[3] of CPC in the light of this Court' order.

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[c] The petitioners shall pay a cost of Rs.10,000/to the contesting respondents on the next date of hearing before the civil Court.

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Sd/JUDGE

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AN/-

Smt. T P Manjula v. K M Sarojamma

Case brief

What is this about?

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Smt. T P Manjula v. K M Sarojamma

Case brief

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