Allowed

Zahirabi @ Fahimunnisa v. Shamshad Begum

Karnataka HC16 Aug 2023WP/5743/2020

Case brief

AI extract

What is this about?

High Court allowed a writ petition under Article 227, setting aside the trial court's rejection of an application under Order XVI Rules 1 and 2 CPC to file a witness list. The Court held the trial court erred as the suit was still at the evidence stage, directing the plaintiff to examine witnesses within a time-bound manner.

What did the court decide?

Order dated 17.01.2020 setting aside the application under Order XVI Rules 1 and 2 CPC set aside. Application filed dated 31.10.2021 allowed. Petitioner directed to examine witnesses within time bound

Zahirabi @ Fahimunnisa Vs Shamshad Begum — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:28930 WP No. 5743 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 5743 OF 2020 (GM-CPC)

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BETWEEN:

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ZAHIRABI @ FAHIMUNNISA W/O H S RAHIM KHAN AGED ABOUT 68 YEARS, R/O 2ND CROSS, SHIVAJI ROAD LASKHAR MOHALLA SHIVAMOGGA CITY - 577 201

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Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

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REPRESENTED BY HER SPECIAL POWER OF ATTORNEY H.S.RAHIMKHAN S/O LATE H.S.AYATH KHAN AGED ABOUT 76 YEARS, AGRICULTURIST R/O 2ND CROSS, SHIVAJI ROAD LASKHAR MOHALLA SHIVAMOGGA CITY - 577 201 (SENIOR CITIZEN BENEFIT NOT CLAIMED) …PETITIONER

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(BY SRI. S. RAJENDRA., ADVOCATE)

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AND:

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SHAMSHAD BEGUM W/O LATE MOHAMMAD ISMAIL SEIT AGED ABOUT 69 YEARS, R/O D.NO.1800, 3RD CROSS DUBAINAGAR CHIKKAMAGALURU - 577 101

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RABIYA BI

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D/O LATE MOHAMMAD ISMAIL SEIT AGED ABOUT 49 YEARS,

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2 - NC: 2023:KHC:28930 WP No. 5743 of 2020

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AZADNAGAR SHIVAMOGGA - 577 201.

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MOHAMMED HABIBULLA S/O LATE MOHAMMAD ISMAIL SEIT AGED ABOUT 41 YEARS, R/O D.NO.1800, 3RD CROSS DUBAINAGAR

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CHIKKAMAGALURU - 577 101.

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MOHAMMED YOUNUS S/O LATE MOHAMMAD ISMAIL SEIT AGED ABOUT 39 YEARS, R/O D.NO.1800, 3RD CROSS DUBAINAGAR CHIKKAMAGALURU - 577 101.

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MOHAMMED SEIT S/O LATE MOHAMMAD ISMAIL SEIT AGED ABOUT 39 YEARS, R/O D.NO.1800 3RD CROSS, DUBAINAGAR CHIKKAMAGALURU - 577 101.

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THE COMMISSIONER CMC

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SHIVAMOGGA - 577 201.

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…RESPONDENTS

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(BY SRI. VARADARAJ R. HAVALDAR, ADVOCATE FOR R3 & R5 SRI. ASHWIN S. HALADY, ADV. FOR R6 R1,R2 AND R4 SERVED AND UNREPRESENTED)

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THIS WP FILED UNDER ARTICLE 227 OF THE CONSTITUION OF INDIA, PRAYING TO-SET ASIDE THE ORDER DATED 17.01.2020 PASSED BY THE COURT OF LEARNED I ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA REJECTING THE APPLICATION FILED UNDER ORDER XVI RULES 1 AND 2 OF CODE OF CIVIL PROCEDURE, 1908 IN O.S.NO.571/2011 PRODUCED AS PER ANNEXURE-G. ALLOW THE APPLICATION FILED BY THE GENERAL POWER OF ATTORNEY HOLDER OF THE PLAINTIFF 26.11.2019 IN TERMS

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3 - NC: 2023:KHC:28930 WP No. 5743 of 2020

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OF ORDER XVI RULES 1 AND 2 OF CODE OF CIVIL PROCEDURE, 1908 PRODUCED AS ANNEXURE-E TO THE WRIT PETITION AS PRAYED FOR THEREIN.

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

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ORDER

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The petitioner/plaintiff is before this Court under Article 227 of the Constitution of India, questioning the order dated 17.01.2020 by which I.A. filed under Order XVI Rules 1 and 2 of CPC in O.S.No.571/2011 is rejected.

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Heard learned counsel Sri.S.Rajendra through video conference for petitioner; learned counsel Sri. Varadaraj R. Havaldar for respondent Nos.3 and 5 and learned counsel Sri.Ashwin S. Halady for respondent No.6. Perused the writ petition papers.

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Learned counsel for petitioner would submit that the trial Court committed an error in rejecting I.A. filed under Order XVI Rules 1 and 2 of CPC seeking permission to file list of witnesses and permission to examine those witnesses. Learned counsel would submit that the suit was at the stage of examination of witnesses on behalf of plaintiff. Learned counsel would submit that the trial Court is not justified in rejecting the application by

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NC: 2023:KHC:28930 WP No. 5743 of 2020

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observing that, on completion of cross-examination of plaintiff’s witnesses, the plaintiff could not have filed the application.

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The trial Court also dismissed the application by not accepting the reasons stated by the petitioner/plaintiff, that the list of witnesses was not filed by plaintiff.

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Learned counsel for petitioner would submit that, the cross examination of witnesses listed in the list of witnesses filed along with application filed under Order XVI Rule 1 of CPC would be necessary for proper adjudication of the issue involved in the suit.

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Per contra learned counsel appearing for respondents would oppose the writ petition by supporting the order passed by the trial Court. Learned counsel would submit that sufficient opportunity was provided to the petitioner/plaintiff but having failed to utilize the opportunity, the petitioner/plaintiff could not have filed an application under Order XVI Rules 1 and 2 of CPC. It is submitted that, said application is filed only to drag the proceedings and prayed to dismiss the writ petition.

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NC: 2023:KHC:28930 WP No. 5743 of 2020

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Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the trial Court committed an error in rejecting the application filed under Order XVI Rules 1 and 2 of CPC. Admittedly, the suit was at the stage of cross examination of PW-3. At that stage, the petitioner/plaintiff filed an application under Order XVI Rule 1 of CPC enclosing list of witnesses whom the plaintiff proposed to examine.

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Order XVI Rule 1 of CPC provides for filing of list of witnesses and summons to witnesses. Sub-rule (1) of Rule 1 of Order XVI requires filing of list of witnesses and to produce documents not later than 15 days from the date on which the issues are settled. Sub-rule (2) of Rule 1 provides for obtaining any summons for the attendance of any person by making an application stating the purpose for which the witness is proposed to be summoned. Under sub-rule (3) of Rule 1, the Court may for reasons to be recorded permit a party to call , whether by summoning through Court or otherwise any witness other than whose names appear in the list of witnesses referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention

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6 - NC: 2023:KHC:28930 WP No. 5743 of 2020

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the name of such witness in the said list. Sub-rule (4) of Rule 1A of Order X\VI provides for production of witnesses without summons. It would state that the subject to provisions of sub-rule (3) of Rule 1, any party to the suit may without applying for summons under rule 1, bring any witness to give evidence or to produce documents.

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From the above rules, it is clear that even if the party intends to examine any witness whose name was not mentioned in the list of witnesses, the plaintiff could bring such witness to give evidence by showing sufficient cause for not mentioning the name of the witness earlier or for non-filing of the list of witnesses.

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Affidavit accompanying the application though is not elaborate would state that, the witnesses mentioned in the list are material witnesses to speak about the case. The suit is one for permanent and mandatory injunction based on gift deeds said to have been executed in favour of plaintiffs.

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In the above circumstances, that too when the suit was at the stage of PW-3’s evidence, the trial Court ought to have

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NC: 2023:KHC:28930 WP No. 5743 of 2020

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accepted the list of witnesses and permitted the petitioner/plaintiff

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to examine those witnesses within a time bound manner.

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For the reasons recorded above, writ petition is allowed. Order dated 17.01.2022 on IA filed under Order XVI Rules 1 and 2 of CPC in O.S.NO.571./2011 is set aside. IA filed under Order XVI Rules 1 and 2 of CPC at Annexure-E dated 31.10.2021 is allowed.

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The petitioner shall examine the witnesses stated in the list of witnesses without any delay and complete evidence on behalf of the plaintiff forthwith.

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The petitioner/plaintiff shall pay cost of Rs.5,000/- to the defendants on the next date of hearing before the trial Court.

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Sd/JUDGE

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LDC

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List No.: 1 Sl No.: 56

Zahirabi @ Fahimunnisa v. Shamshad Begum

Case brief

What is this about?

What did the court decide?

Zahirabi @ Fahimunnisa v. Shamshad Begum

Case brief

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