Dismissed

Shri Devendra Aliyas Devappa S/O Ranu Ghevadi Aliyas Ghevade v. Shri Appayya S/O Mallu Shelar

Karnataka HC14 Jun 2024WP/101867/2024

Case brief

AI extract

What is this about?

The writ petition challenging the Principal Civil Judge's order allowing witness summons to secure thumb impressions for a specific performance suit was dismissed. The bench held no serious prejudice was caused as the agreement was fraudulently disputed. The Writ Court cautioned that its order does not affect the merits of the underlying case.

What the court decided

AI extract

Shri Devendra Aliyas Devappa S/O Ranu Ghevadi Aliyas… — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:7995 WP No. 101867 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14^TH DAY OF JUNE, 2024 BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 101867 OF 2024 (GM-CPC)

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BETWEEN:

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SHRI. DEVENDRA @ DEVAPPA S/O. RANU GHEVADI @ GHEVADE, AGE: 68 YEARS, OCC: AGRICUTLURE, R/O: MASANAI GALLI-I, AGASAGE, TQ. AND DIST: BELAGAVI-591143.

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SHRI. BHAIRU S/O. MARUTI GHEVADI @ GHEVADE, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: MASANAI GALLI-I, AGASAGE, TQ. AND DIST BELAGAVI-591143.

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SHRI. SAGAR S/O. MARUTI GHEVADI @ GHEVADE, AGE: 31 YEARS, OCC: AGRICULTURE, R/O: MASANAI GALLI-I, AGASAGE, TQ. AND DIST BELAGAVI-591143.

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YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH

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SMT. SEVANTA W/O. MARUTI GHEVADI @ GHEVADE @ GHEVADE, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: MASANAI GALLI-I, AGASAGE, TQ. AND DIST: BELAGAVI-591143.

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SMT. SARIKA W/O. PRAKASH BAGEWADI AGE: 33 YEARS, OCC: AGRICULTURE, R/O: MASANAI GALLI-I, AGASAGE, TQ. AND DIST: BELAGAVI-591143.

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…PETITIONERS

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(BY SRI.VITTHAL S.TELI, ADVOCATE)

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AND:

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SHRI. APPAYYA S/O. MALLU SHELAR AGE: 58 YEARS, OCC: AGRICULTURE, R/O: AGASAGE, TQ AND DIST: BELAGAVI-591143.

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…RESPONDENT

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NC: 2024:KHC-D:7995 WP No. 101867 of 2024

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT QUASHING THE ORDERS DATED. 10-01-2024 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, BELAGAVI ON IA NO. X TO XII IN OS NO. 767/2014 IS PRODUCED HEREWITH VIDE ANNEXURE-J.

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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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This petition is filed by the defendants assailing the order passed by the learned Judge on I.A.No.10 to 12. The learned Judge has entertained these applications filed by the plaintiff and permitted the plaintiff to take witness summons to Sub- Registrar, Belagavi to secure thumb impression register maintained in Sub-Registrar office pertaining to registered sale deed executed by defendant No.1 and his brother. I.A.No.12 is filed to send the admitted and disputed thumb impressions of defendant No.1 for comparison. The said application is also allowed by the learned Judge.

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Learned counsel appearing for petitioner, assailing the correctness of the order, has vehemently argued and contended that the plaintiff has admitted in cross-

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3 - NC: 2024:KHC-D:7995 WP No. 101867 of 2024

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examination that suit agreement is created by him. This admission cannot be looked into at this juncture. The plaintiff based on an agreement to sell has filed a suit for specific performance. The present petitioners-defendants have totally denied the suit agreement by contending that it is a fraudulent document. The learned Judge, to do substantial justice and bearing in mind that the entire burden is on the plaintiff to prove due execution of suit agreement, has allowed the applications by exercising discretion judiciously.

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Having examined the order under challenge, this Court is of the view that no serious prejudice is caused to the present petitioners-defendants, as the suit agreement is seriously disputed by defendants alleging fraud. Plaintiff should not be precluded from producing best piece of evidence to discharge his burden and establish the due execution of alleged suit agreement. Therefore, I am not inclined to grant any indulgence. However, it is made clear that any observation made by the learned Judge while deciding the applications shall not be taken cognizance while deciding the case on merits.

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NC: 2024:KHC-D:7995 WP No. 101867 of 2024

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With the above said observation, the writ petition stands dismissed.

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In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

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Sd/JUDGE

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YAN, List No.: 1 Sl No.: 14

Shri Devendra Aliyas Devappa S/O Ranu Ghevadi Aliyas Ghevade v. Shri Appayya S/O Mallu Shelar

Case brief

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What the court decided

Shri Devendra Aliyas Devappa S/O Ranu Ghevadi Aliyas Ghevade v. Shri Appayya S/O Mallu Shelar

Case brief

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