Dismissed

Smt. Laximibai W/O Shrishail Hunki v. Smt. Kashibai W/O Paramagond Madagouda

Karnataka HC18 Sept 2024WP/105442/2024

Case brief

AI extract

What is this about?

Writ petition challenging a Trial Court order dismissing civil applications to recall evidence and summon documents in a partition suit. The High Court held there were no grounds to allow the applications or quash the order, dismissing the petition.

What did the court decide?

Writ petition dismissed; impugned order quashing applications to recall evidence and summon documents remains valid.

Smt. Laximibai W/O Shrishail Hunki Vs Smt. Kashibai W/O… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13321 WP No. 105442 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH WRIT PETITION NO. 105442 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. LAXIMIBAI W/O. SHRISHAIL HUNKI, AGE: 70 YEARS, OCC: HOUSEHOLD WORK, R/O. HUNNUR, TQ: JAMKHANDI, DISTRICT: BAGALKOT-587301.

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SHRI. MAHESH S/O. SHRISHAIL HUNKI, AGE: 43 YEARS, OCC: AGRICULTURE, R/O. HUNNUR, TQ: JAMKHANDI, DISTRICT: BAGALKOT-587301.

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SMT. GEETA W/O. SOMU PATIL, AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O. JAMKHANDI-587301, TQ: JAMKHANDI, DISTRICT: BAGALKOT.

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SAROJA

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HANGARAKI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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SMT. HAMPAVVA W/O. BASAPPA HUNKI, AGE: 68 YEARS, OCC: HOUSEHOLD WORK, R/O. HUNNUR, TQ: JAMKHANDI, DISTRICT: BAGALKOT-587301.

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SHRI. LAKKAPPA S/O. BASAPPA HUNKI, AGE: 44 YEARS, OCC: AGRICULTURE, R/O. HUNNUR, TQ: JAMKHANDI, DISTRICT: BAGALKOT-587301.

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SHRI. SIDDAPPA S/O. BASAPPA HUNKI, AGE: 38 YEARS, OCC: AGRICULTURE, R/O. HUNNUR, TQ: JAMKHANDI, DISTRICT: BAGALKOT-587301.

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…PETITIONERS

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(BY SRI. ANIL KALE, ADVOCATE)

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2 - NC: 2024:KHC-D:13321 WP No. 105442 of 2024

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AND:

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SMT. KASHIBAI W/O. PARAMAGOND MADAGOUDA, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O. KAVATAGI, TQ: JAMKHANDI, DISTRICT: BAGALKOT-587301.

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SMT. ASHA W/O. LAXMAN HUNKI, AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O. HALINGALLI, TQ: RABKHAVI-BANAHATTI, DISTRICT: BAGALKOT-587315.

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SMT. GOURAVVA W/O. NANDEPPA NYAMGOUDA, AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O. JAMKHANDI-587301, TQ: JAMKHANDI, DISTRICT: BAGALKOT.

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SMT. SARAVVA @ SHARADHA W/O. RAMESH TELI, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O. KAVATAGI, TQ: JAMKHANDI, DISTRICT: BAGALKOT-587301.

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SMT. NEELAVVA W/O. ISHWAR CHOUDARI, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O. JAMKHANDI-587301, TQ: JAMKHANDI, DISTRICT: BAGALKOT.

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SMT. MAHADEVI W/O. MALLIKARJUN SAVADI, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O. HUNNUR-587301, TQ: JAMKHANDI, DISTRICT: BAGALKOT.

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…RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER DATED 22.08.2024 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, JAMKHANDI IN O.S. NO.42/2014 ON I.A. NO.14 TO 17 PRODUCED AT ANNEXURE-K, IN THE INTEREST OF JUSTICE AND EQUITY; ALLOW THE APPLICATION IN I.A. NO.14 TO 17 FILED IN O.S. NO.42/2014 ON THE FILE OF ADDL. CIVIL JUDGE AND JMFC, JAMKHANDI AND ETC.

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3 - NC: 2024:KHC-D:13321 WP No. 105442 of 2024

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

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the learned counsel for the petitioners.

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The present writ petition is filed praying this

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Court to issue a writ in the nature of certiorari quashing the order dated 22.08.2024 passed by the Additional Civil Judge and JMFC, Jamkhandi, in O.S No.42/2014 on I.A Nos.14 to 17 that is Order VIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) I.A No.14 is filed under Order VIII Rule 1(A) of CPC, I.A No.15 is filed under Order XVIII Rule 17 r/w Section 151 of CPC, I.A No.16 is filed under Section 151 of CPC and I.A No.17

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is filed under Order XVI Rule 1 and 2 of CPC to recall the stage of for defendant side evidence by permitting him to produce documents marked and further issue witness summons for the reason stated in the affidavit accompanying application.

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4 - NC: 2024:KHC-D:13321 WP No. 105442 of 2024

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The main contention of the petitioners before this Court is that they filed all these applications and that the defendants are intended to produce some documents and they are recently traced some of the documents, the said documents are very important to decide the case effectively. On the other hand, it is the contention of the plaintiff by filing objections that defendants have given important admissions during the cross examination as that defendants are intending to fulfill their lacunae, the present applications are filed.

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The Trial Court taking into note of the grounds urged in the application as well as the objections filed by the plaintiff and also considering the documents which sought to be produced before the Court, comes to the conclusion that those documents are for production have not been enclosed along with the applications and also no explanation whether documents are for production or the documents summoned are one and the same. Apart from that the Trial Court comes to the conclusion that how the

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5 - NC: 2024:KHC-D:13321 WP No. 105442 of 2024

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school authority is competent to issue caste and income certificate and even not produced any endorsement of the consent for non issuing the same and no application was filed to the school authorities to produce the documents or to get the documents from the concerned authority instead of relying upon only Xerox documents wants to get the documents from the school authority and question of issuance of notice does not arise.

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The Trial Court also comes to the conclusion that unless the reason available for summoning of documents and prevented the same to obtain the same from the concerned authority, no reasons are assigned. The Xerox copies are not missible in evidence and also considering the judgment of the Hon’ble Apex Court power to recall any witness under Order XVIII Rule 17 of the CPC can be exercised by the Court either on its own motion or on an application filed by the parties, but as indicated reason herein above, such power is to be invoked not to fill up the lacunae and hence, rejected the same.

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6 - NC: 2024:KHC-D:13321 WP No. 105442 of 2024

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The learned counsel appearing for the petitioners

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also vehemently contend that producing Annexure-L i.e., birth certificate that he was aged more than 22 years at the time of mutation entry was made and relinquished the right. Based on the document of witness any transfer is made, produced any document and also the suit is for seeking relief of partition and even attained the majority not bearing on any suit, question of limitation does not arise in a suit for partition. When such being the case, after the examination of the witnesses that is PW.1 as well as DW.1, an attempt is made to summon the documents from the school authority without obtaining any documents from the school.

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The Trial Court also made an observation that the documents has not been obtained from the school authority and if they have refused to issue such certificate, then there was a force in the argument of the counsel that they were unable to produce the same and no such effort was made and apart from that when the suit is filed for

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7 - NC: 2024:KHC-D:13321 WP No. 105442 of 2024

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the relief of partition and the same is immaterial, hence, I

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do not find any ground to allow the application.

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Hence, there is no any merit in the applications

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and the applications are also filed when the matter was posted for arguments in the belated stage and Court has to consider in a suit for relief of partition and hence, summoning of those documents by allowing the application also does not arise. Hence, I do not find any ground to quash the order and accordingly, the writ petition is dismissed.

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Sd/(H.P.SANDESH) JUDGE

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PMP CT-MCK List No.: 1 Sl No.: 56

Smt. Laximibai W/O Shrishail Hunki v. Smt. Kashibai W/O Paramagond Madagouda

Case brief

What is this about?

What did the court decide?

Smt. Laximibai W/O Shrishail Hunki v. Smt. Kashibai W/O Paramagond Madagouda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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