Dismissed

Smt. Nagaveni W/O Nagesh Naik v. Shrikant S/O Mahabaleshwar Kanchagar

Karnataka HC4 Nov 2024WP/104187/2024

Case brief

AI extract

What is this about?

A defendant sought summons to a municipal commissioner for five documents concerning the plaintiff's property, alleging construction without requisite setback. The Trial Court rejected the application as documents were public records obtainable otherwise. The High Court upheld the rejection and dismissed the writ petition.

What the court decided

AI extract

Smt. Nagaveni W/O Nagesh Naik Vs Shrikant S/O… — Property and Title | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC-D:16071 WP No. 104187 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 4^TH DAY OF NOVEMBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR. JUSTICE C.M. POONACHA

¶7

WRIT PETITION NO.104187 OF 2024 (GM-CPC)

¶8

BETWEEN:

¶9

SMT. NAGAVENI W/O. NAGESH NAIK, AGE: 59 YEARS, OCC: HOUSEHOLD WORK, R/O: POLICE HEAD QUARTERS, DHARWAD – 580 001.

¶10

…PETITIONER

¶11

(BY SRI S. C. HIREMATH, ADVOCATE)

¶12

AND:

¶13

SHRIKANT S/O. MAHABALESHWAR KANCHAGAR, AGE: 65 YEARS, OCC: EMPLOYEE, R/O: PLOT NO.53, MAHLARI HOUSING SOCIETY, MALAPRABHA NAGAR, DHARWAD – 580 001.

¶14

…RESPONDENT

¶15

Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka

¶16

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 29-05-2024 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC DHARWAD IN O.S.NO.342/2021, REJECTING THE I.A.NO.6 FILED BY THE PETITIONER, A COPY OF WHICH IS PRODUCED AS PER ANNEXURE-E AND ALLOW THE I.A.NO.6 AND SUMMON THE WITNESS TO PRODUCE THE DOCUMENTS AS SOUGHT IN THE APPLICATION I.A.NO.6 IN O.S.NO.342/2021 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC DHARWAD AND ETC.,

¶17

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶18

CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

¶19

¶20

NC: 2024:KHC-D:16071 WP No. 104187 of 2024

¶21

ORAL ORDER

¶22

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

¶23

The present writ petition is filed by the defendant challenging the order dated 29.05.2024, passed on I.A No.6 under Order 16 Rule 6 R/w Section 151 of the Code of Civil Procedure, 1908¹ in O.S No.342/2021 by the II Additional Civil Judge and JMFC, Dharwad² .

¶24

The relevant facts leading to the present writ petition are that the respondent/plaintiff filed a suit for injunction not to obstruct the plaintiff’s peaceful possession and enjoyment of the suit property. It is the case of the plaintiff that the husband of the defendant filed a suit in O.S No.377/2002, wherein, it was claimed that there was an encroachment by the plaintiff who was constructing a building in the neighboring property. The said suit in O.S No.377/2002 was dismissed holding that

¶25

1 Hereinafter referred to as the ‘CPC’

¶26

2 Hereinafter referred to as the ‘Trial Court’

¶27

¶28

NC: 2024:KHC-D:16071 WP No. 104187 of 2024

¶29

there was no encroachment between the plaintiff and defendant.

¶30

It is the further case of the plaintiff that, after dismissal of O.S No.377/2002, the defendant cleared the encroachment that she was trying to make on the northern side of the plaintiff’s property. Subsequently, since the defendant attempted to make obstruction, the plaintiff filed the present suit in O.S No.342/2021. The petitioner/defendant entered appearance in the suit and filed the written statement contending, inter alia , that the plaintiff has not left the requisite setback and not obtained building permission for construction of his house building. Further, the petitioner/defendant has taken various other defences.

¶31

The petitioner/defendant filed I.A No.6 in O.S No.342/2021 under Order 16 Rule 6 R/w Section 151 of the CPC to issue summons to the Commissioner of HubliDharwad Municipal Corporation to produce five documents pertaining to the suit property bearing Plot No.53 i.e.

¶32

4 - NC: 2024:KHC-D:16071 WP No. 104187 of 2024

¶33

plaintiff’s property. The documents sought to be summoned are (a) Building license, (b) approved plan, (c) completion certificate, (d) property tax register and (e) tax khata of the suit schedule property. The said application was objected by the respondent/plaintiff. The Trial Court, vide order dated 29.05.2024, dismissed the said application. Being aggrieved, the present writ petition is filed.

¶34

Learned counsel Sri.S.C.Hiremath for the petitioner assailing the order of the Trial Court vehemently contends that the plaintiff has put up construction without leaving the requisite setback and the documents sought to be summoned vide I.A No.6 are necessary to demonstrate the same. Hence, he seeks for allowing of the present writ petition and granting of the relief sought for.

¶35

It is forthcoming that the Trial Court while considering I.A No.6 has noticed that the document sought for by the defendants are public documents and certified copies of the aforesaid documents may be procured

¶36

5 - NC: 2024:KHC-D:16071 WP No. 104187 of 2024

¶37

through the process known to law. Further, the Trial Court has also noticed that the defendant has applied for copies of the said documents under the provisions of the Right to Information Act, 2005³ and the said application has been rejected. The Trial Court noticing the same has held that it is open to the plaintiff to file an appeal against the order rejecting the request made by the defendant under the RTI Act.

¶38

It is further relevant to note when the petitioner/defendant has taken a categorical contention that the plaintiff has put up construction without leaving the requisite setback, the onus would be on the plaintiff demonstrate that he has put up construction after leaving the requisite setback in accordance with law. The said aspect of the matter is required to be adjudicated during the course of trial.

¶39

It is further relevant to note that even as on date the petitioner has not placed any material to demonstrate 3 Hereinafter referred to as the ‘RTI Act’

¶40

6 - NC: 2024:KHC-D:16071 WP No. 104187 of 2024

¶41

that he has filed an appeal challenging the rejection of his application made under the RTI Act. The parties being neighbors, and allegations of encroachment having been made, it is for the parties to prove their respective contentions in accordance with law. I.A No.6 has been rightly rejected by the Trial Court.

¶42

The petitioner has failed in demonstrating that the order dated 29.05.2024 passed by the Trial Court in dismissing I.A No.6 is in any manner erroneous and liable to be interfered with by this Court.

¶43

Hence, the present writ petition is dismissed as being devoid of merit.

¶44

Sd/(C.M. POONACHA) JUDGE

¶45

PMP CT-ASC List No.: 1 Sl No.: 25

Smt. Nagaveni W/O Nagesh Naik v. Shrikant S/O Mahabaleshwar Kanchagar

Case brief

What is this about?

What the court decided

Smt. Nagaveni W/O Nagesh Naik v. Shrikant S/O Mahabaleshwar Kanchagar

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chandramohan S/O. P.R. Thankappan Pillai Vs Uma S. Shetty

Purandara S/O. B.K. Narasimha Bekal Vs Uma S. Shetty

The Land Acquisition Officer and Asst Commissioner Koppal 583231 Vs Shri Kanakappa S/O Bhemappa Kuri Age Major Occ Agriculture R/O Vanaballari Tq and Dist Koppal

Sri Avinash Vs Smt.Danakka Ravasab Kudagannavar

Karabasappa S/O Guddappa Khandappalavar Vs Smt. Ratnavva W/O Natraj Haravi

Veeranna S/O. Gangappa Sambaragi Vs Sri. Nandkumar S/O. Ishwar Sankeshwar