Allowed

Smt Jayalakshmi v. Sri Muniyappa

Karnataka HC22 Feb 2024WP/16300/2017

Case brief

AI extract

What is this about?

Plaintiffs in a partition suit challenged the trial court's order allowing defendant No.5's application to summon defendant No.1 as a witness. The High Court held the order cryptic and unreasoned, and that summoning was futile in an allegedly collusive suit, setting aside the order and dismissing the application.

What did the court decide?

Order dated 17.09.2016 allowing IA No.10 set aside; IA No.10 dismissed; trial court directed to dispose of OS.No.448/2009 expeditiously.

Smt Jayalakshmi Vs Sri Muniyappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:7507 WP No. 16300 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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WRIT PETITION NO. 16300 OF 2017 (GM-CPC)

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BETWEEN:

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SMT. JAYALAKSHMI, AGED ABOUT 31 YEARS, D/O SRI. MUNIYAPPA,

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MR. ANIL KUMAR .B.V. AGED ABOUT 20 YEARS, S/O LATE VENKATESH,

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KUM. RANJITH KUMARI B.V. AGED ABOUT 17 YEARS D/O LATE VENKATESH

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Digitally signed by MANJANNA MANJANNA E E Date: 2024.03.04 11:30:25 +0530

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SINCE PETITIONER NO. 3 IS MINOR, REPRESENTED BY HER NATURAL GUARDIAN AND MOTHER SMT. NARAYANAMMA, AGED ABOUT 43 YEARS, W/O LATE VENKATESH,

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RESIDING OF BAGALUR VILLAGE JALA HOBLI, BANGALORE NORTH TALUK - 562 149.

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…PETITIONERS

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(BY SRI: N.G. SREEDHAR, ADVOCATE)

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AND:

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SRI MUNIYAPPA, AGED ABOUT 64 YEARS, S/O LATE SRI. BIDDAPPA @ DODDABIDDAPPA,

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SRI. VENKATESH, AGED ABOUT 44 YEARS, S/O SRI. MUNIYAPPA,

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2 - NC: 2024:KHC:7507 WP No. 16300 of 2017

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SRI. MUNIRAJU, AGED ABOUT 36 YEARS, S/O SRI. MUNIYAPPA,

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SRI. ANAND, AGED ABOUT 33 YEARS, S/O SRI. MUNIYAPPA,

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ALL ARE RESIDING AT BAGALUR VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK - 562 149.

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SRI MUNEGOWDA

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AGED ABOUT 51 YEARS S/O. SRI. P. JAYARAMAIAH, RESIDING AT NO.10(A), BAGALUR VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK - 562 149.

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…RESPONDENTS

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(BY SMT: INDUMATHI S.R.,

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SRI: K. BHANU PRASAD, ADVOCATES FOR R5 V/O DT. 19/4/17, R1-4 IS D/W)

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THIS WRIT PETITION IS FILED PRAYING TO QUASH THE ORDER DTD.17.9.2016 VIDE ANNEX-D ON I.A.NO.10/16 IN O.S.NO.448/2009 PASSED BY THE HON'BLE SENIOR CIVIL JUDGE AND JMFC DEVANAHALLI, BANGALORE RURAL DISTRICT, AS ILLEGAL AND UNCONSTITUTIONAL, AND CONSEQUENTLY FURTHER TO DISMISS THE SAID I.A.NO.10/16 VIDE ANNEX-C IN O.S.NO.448/2009 ON THE FILE OF THE HON'BLE SENIOR CIVIL JUDGE AND JMFC DEVANAHALLI, BANGALORE RURAL DISTRICT. AWARD THE COST OF THIS W.P. AND ETC.,

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

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3 - NC: 2024:KHC:7507 WP No. 16300 of 2017

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ORDER

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Plaintiffs in OS.No.448/2009 on the file of the learned Senior Civil Judge, Devanahalli is seeking grant of writ of certiorari to quash the order dated 17.09.2016 allowing IA No.10 filed under Order 16 Rule 1 of CPC summoning defendant No.1 as witness.

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Heard Sri. N.G.Sreedhar, learned counsel for the petiiotners and Smt. Indumathi S.R., learned counsel for Sri.K.Bhanu Prasad, learned counsel for respondent No.5. Perused the materials on record.

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Learned counsel for the petitioners contended that the petitioners are the plaintiffs in OS.No.448/2009 filed for partition and separate possession. It is the specific contention of the plaintiffs that plaintiff No.1 is the daughter of defendant No.1 and she is entitled for share in the property. Defendant No.5 was subsequently impleaded in the suit as he is the subsequent purchaser. He is a stranger to the family. It is defendant No.5 who filed IA No.10 under order 16 Rule 1 R/w Section 151 of CPC seeking summoning defendant No.1 as witness. The said application was allowed by the trial Court

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NC: 2024:KHC:7507 WP No. 16300 of 2017

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without affording an opportunity to the plaintiffs and without assigning any reason. Hence, the petitioners are before this Court.

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Learned counsel submitted that the plaintiffs filed the suit against defendant Nos.1 to 4 who are their family members and when they have not chosen to contest the suit, defendant No.5 being a stranger to the family could not have summoned defendant No.1 to give evidence. Defendant No.5 cannot compel defendant No.1 to give evidence before the trial Court. It is for the plaintiff No.1 to prove her relationship and claim share over the schedule property, for which, she has already produced sufficient materials. Under such circumstances, he prays for allowing the petition by setting aside the impugned order.

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Per contra , learned counsel for respondent No.5/defendant No.5 opposing the petition submitted that defendant Nos.1 to 4 have sold the schedule property in favour of defendant No.5 under the registered sale deed dated 22.05.2006. Later the suit OS.448/2009 was came to be filed on 20.08.2009. It is a collusive suit between the parties. Defendant No.5 was impleaded later. Defendant Nos.1 to 4

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NC: 2024:KHC:7507 WP No. 16300 of 2017

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have not chosen to appear before the Court and they were placed exparte. Plaintiff No.1 has also not appeared before the Court to give evidence. Defendant No.5 has taken up a specific contention that she is not the daughter of defendant No.1 and she is not having any right over the property. Further a specific defence was taken that defendant No.5 is the bonafide purchaser of property for value, without notice. Under such circumstances, the application was came to be allowed. Since the plaintiffs/petitioners have not opposed the application, the same was allowed. There are no reasons to interfere with the same. Hence, prays for dismissal of the petition.

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The admitted facts of the case are that the plaintiffs filed the suit for partition and separate possession against the defendant Nos.1 to 4. Plaintiff No.1 claims to be the daughter of defendant No.1. Interestingly, defendant Nos.1 to 4 remained exparte. It is stated that the plaintiff No.1 has not stepped into the witness box to speak about her relationship with defendant No.1. In the meantime, defendant No.5 was impleaded as he is the purchaser of the property under the registered sale deed dated 22.05.2006 and the suit was came to be filed in the year 2009. Therefore, defendant No.5 has

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NC: 2024:KHC:7507 WP No. 16300 of 2017

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taken a defence that he is the bonafide purchaser of property for value without notice of relationship of plaintiff No.1 with defendant Nos.1 to 4. However, a defence was also taken that plaintiff No.1 is not daughter of defendant No.1.

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Since the suit filed by the plaintiffs is for partition and separate possession, she has to prove her relationship as well as her entitlement to the share in the property. Defendant No.5 on the other hand is required to prove that he is the bonafide purchaser of the property for value, without notice of relationship of plaintiff No.1 with defendant No.1. When defendant No.5 contends that it is a collusive suit or in other words defendant No.1 also colluded with the plaintiffs in filing the suit, it cannot be said that he will support the contention of defendant No.5. Under such circumstances, it will be a futile attempt on the part of defendant No.5 to summon defendant No.1.

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Moreover, the burden is on the plaintiffs to prove their entitlement to a share in the schedule property and it is for the defendant No.5 to substantiate his contention regarding his bonafides in purchasing the property. If at all plaintiff No.1 and defendant Nos.1 to 4 failed to appear before the Court to lead

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NC: 2024:KHC:7507 WP No. 16300 of 2017

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evidence, defendant No.5 will be at liberty to request the Court to draw adverse inference against them, if the same is permissible under law.

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I have gone through the impugned order passed by the trial Court, the same is a cryptic order which is passed only because the plaintiffs remained absent. No reasons are assigned for allowing the petition. Under such circumstances, I am of the opinion that the impugned order is liable to be set aside.

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Accordingly, I proceed to pass the following:

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ORDER

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i. Writ petition is allowed .

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ii. The order dated 17.09.2016 in OS.No.448/2009 on the file of the learned Senior Civil Judge, Devanahalli allowing IA No.10 filed under Order 16 Rule 1 of CPC is set aside. Consequently, IA No.10 is dismissed.

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iii. Learned counsel for the petitioners submits that the suit is of the year 2009. Therefore, the trial Court is directed to dispose of the suit expeditiously with the cooperation of both the parties.

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SD/JUDGE

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BH: List No.: 1 Sl No.: 2

Smt Jayalakshmi v. Sri Muniyappa

Case brief

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Smt Jayalakshmi v. Sri Muniyappa

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