Allowed

Smt. Lakshmamma v. Smt. Rathanamma

Karnataka HC5 Jan 2024WP/13301/2023

Case brief

AI extract

What is this about?

Plaintiff in a partition suit sought to reopen her evidence for further adduction after defendant No.8's cross-examination stage; the trial Court refused, adopting a hyper technical approach. The High Court allowed the writ petition, set aside the order and permitted the plaintiff to lead further evidence on the next hearing date.

What did the court decide?

Impugned order dated 14.06.2023 set aside; application under Order XVIII Rule 17 CPC allowed; plaintiff permitted to adduce further evidence on 15.02.2024 with cross-examination rights to respondents.

Smt. Lakshmamma Vs Smt. Rathanamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:607 WP No. 13301 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 JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 13301 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. LAKSHMAMMA, D/O LATE SRI. NAGAPPA AND MUNIYAMMA, W/O GALAPPA, R/AT ERANAPALYA, AGED ABOUT 66 YEARS, PAPAREDDY PALYA, YESHWANTHAPURA HOBLI, BENGALURU - 560 091.

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…PETITIONER

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(BY SRI. JAYAKIRTHI M.C., ADVOCATE)

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AND:

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SMT. RATHNAMMA, W/O NAGAPPA, AGED ABOUT 80 YEARS.

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Digitally signed by SUCHITRA M J Location: High Court of Karnataka

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SRINAGARAJA, S/O NAGAPPA, AGED ABOUT 49 YEARS.

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SRI. NARASIMHAMURTHY, S/O NAGAPPA, AGED ABOUT 47 YEARS.

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SRI. RAJA, S/O NAGAPPA, AGED ABOUT 45 YEARS.

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SMT. GOWRAMMA, S/O NAGAPPA

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NC: 2024:KHC:607 WP No. 13301 of 2023

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AGED ABOUT 51 YEARS.

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SMT. LAKSHMAMMA, S/O NAGAPPA, AGED ABOUT 50 YEARS.

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SMT. MANJULA S/O NAGAPPA AGED ABOUT 40 YEARS.

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SMT. LEELAVATHI S/O NAGAPPA, AGED ABOUT 37 YEARS.

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RESPONDENTS NO.1 TO 8 ARE R/AT NO. 135/B, IV MAIN ROAD, 8TH CROSS, BAPUJI NAGAR MYSORE ROAD, BENGALURU - 560 026.

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SRI. SHIVALINGE GOWDA, S/O BADRE GOWDA AGED ABOUT 74 YEARS, R/AT NO. 115/116 3RD MAIN ROAD, Ist CROSS, H.V.R LAYOUT, MAGADI MAIN ROAD, BENGALURU - 560 091.

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SMT. LAKSHMAMMA W/O V KEMPANNA R/AT SUNKADA KATTE YESHWANTHAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU.

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…RESPONDENTS

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(BY SRI. PUTTARAJA C.P., ADVOCATE FOR R1 TO R8;

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NC: 2024:KHC:607 WP No. 13301 of 2023

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R9 IS SERVED AND UNREPRESENTED; VIDE ORDER DATED 05.01.2021, NOTICE TO R10 IS DISPENSED WITH)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE OR QUASH THE IMPUGNED ORDER DTD 14.06.2023 REJECTING THE APPLICATION FILED UNDER ORDER 18 RULE 7 OF CIVIL PROCEDURE CODE PASSED BY THE LXIV ADDL. CITY CIVIL AND SESSION JUDGE AT BANGALORE CITY IN OS NO. 1542/2017 AS PER ANNEXURE F AND ETC.,

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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 directed against the impugned order dated 14.06.2023 passed in O.S. No.1542/2017 on the file of the LXIV Additional City Civil and Sessions Judge, Bengaluru [for short, ‘the trial Court’] whereby the application filed by the petitioner-plaintiff under Order XVIII Rule 17 of CPC for permission to reopen the case and lead further evidence was dismissed by the trial Court.

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Heard learned counsel for the petitioner and learned counsel for respondent Nos.1 to 8 and perused the material on record. Since respondent No.10 did not contest the application out

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NC: 2024:KHC:607 WP No. 13301 of 2023

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of which the present petition arises, notice to respondent No.10 is dispensed with for the purpose of disposal of the present petition.

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The material on record discloses that the petitionerplaintiff instituted the aforesaid suit for partition and separate possession of her alleged share in the suit schedule immovable properties and for other reliefs. The said suit is being contested by respondent Nos.1 to 8 - defendants.

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After completion of evidence of the petitioner - plaintiff,

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respondent No.8 - defendant No.8 examined himself as DW.1 and the matter was set down for his cross-examination by the petitioner

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plaintiff, who, at that stage, filed the instant application seeking reopening of the case and permission to adduce further evidence on her behalf. The said application having been opposed by respondent Nos.1 to 8, the trial Court proceeded to pass the impugned order, rejecting the application, aggrieved by which the petitioner-plaintiff, is before this Court by way of the present petition.

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A perusal of the impugned order will indicate that the

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trial Court has adopted hyper technical approach in not providing one more opportunity to the petitioner - plaintiff to adduce further

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5 - NC: 2024:KHC:607 WP No. 13301 of 2023

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evidence without appreciating that having regard to the nature of the suit and the reliefs sought for by the petitioner - plaintiff and issues in controversy between the parties, it was necessary to provide one more opportunity to the petitioner - plaintiff to adduce further evidence subject to the condition that the petitioner would go ahead and adduce evidence before the trial Court on the next date of hearing of the suit which currently stands posted to 15.02.2024 without seeking any adjournment on that day.

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Under these circumstances, I am of the considered opinion that the impugned order passed by the trial Court deserves to be set aside and the application filed by the petitioner - plaintiff deserves to be allowed.

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In the result, I pass the following:-

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ORDER

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a) Petition is hereby allowed.

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b) The impugned order dated 14.06.2023 is hereby set-aside.

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c) The application filed by the petitioner under Order XVIII Rule

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17 of CPC is hereby stands allowed.

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d) The petitioner is permitted to adduce further evidence before the trial Court in the suit on 15.02.2024.

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NC: 2024:KHC:607 WP No. 13301 of 2023

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e) It is needless to state that the respondents are entitled to

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cross-examine the additional witnesses to be examined by the petitioner-plaintiff.

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f) All rival contentions and all other aspects of the matter are kept open and no opinion is expressed on the same.

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Sd/JUDGE

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KTY List No.: 1 Sl No.: 10 CT:SNN

Smt. Lakshmamma v. Smt. Rathanamma

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Smt. Lakshmamma v. Smt. Rathanamma

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