Allowed

Nagamma v. Shakunatala and Ors.

Karnataka HC6 Nov 2024WP/200404/2024

Case brief

AI extract

What is this about?

Defendant in a partition suit sought summoning of PWD records; the trial court rejected her application under Order 13 Rule 10 CPC as that provision covers only records from another court. The High Court held citing the wrong provision was no ground for rejection, treated the application as under Order 16 Rules 6 and 7 CPC, set aside the trial court order, allowed the application.

What did the court decide?

Impugned trial court order set aside; application treated as under Order 16 Rules 6 and 7 CPC, allowed; trial court directed to summon the records sought.

Nagamma Vs Shakunatala and Ors. — Partition | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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WRIT PETITION NO.200404 OF 2024 (GM-CPC)

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BETWEEN:

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SMT.NAGAMMA W/O LATE VISHWANATH MALIPATIL, AGED ABOUT 58 YEARS, OCCUPATION HH AND AGRICULTURE, RESIDENCE OF GORTA (B) VILLAGE, TALUKA BASAVAKALYAN, DISTRICT BIDAR – 585 401.

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…PETITIONER

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(BY SMT. VAISHNAVI CHANDE FOR SRI. RAVI B PATIL, ADV.)

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AND:

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Digitally signed by LUCYGRACE Location: HIGH COURT OF KARNATAKA

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SMT. SHANKUTALA D/O MANIKAPPA, (W/O VEERSHETTY JAGSHETTY), AGED ABOUT 64 YEARS, OCCUPATION AGRICULTURE, RESIDENCE OF GORTA (B) VILLAGE, TALUKA BASAVAKALYAN, DISTRICT BIDAR – 585 401.

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SMT. VIDHYAVATI D/O MANIKAPPA, (W/O SHIVARAJ BHALKE), AGED ABOUT 50 YEARS, OCCUPATION AGRICULTURE, RESIDENCE OF GORTA (B) VILLAGE, TALUKA BASAVAKALYAN, DISTRICT BIDAR – 585 401.

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2 - ��

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SRI BASAVARAJ S/O MANIKAPPA MALIPATIL, AGED ABOUT 48 YEARS, OCCUPATION AGRICULTURE, RESIDENCE OF GORTA (B) VILLAGE, TALUKA BASAVAKALYAN, DISTRICT BIDAR – 585 401.

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SRI SHIVARAJ S/O MANIKAPPA MALIPATIL, AGED ABOUT 58 YEARS, OCCUPATION AGRICULTURE, RESIDENCE OF GORTA (B) VILLAGE, TALUKA BASAVAKALYAN, DISTRICT BIDAR – 585 401.

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SRI ANILKUMAR S/O LATE VISHWANATH MALIPATIL

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AGED ABOUT 30 YEARS, OCCUPATION AGRICULTURE, RESIDENCE OF GORTA (B) VILLAGE, TALUKA BASAVAKALYAN, DISTRICT BIDAR – 585 401.

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SRI BALU S/O LATE VISHWANATH MALIPATIL, AGED ABOUT 28 YEARS, OCCUPATION AGRICULTURE, RESIDENCE OF GORTA (B) VILLAGE, TALUKA BASAVAKALYAN, DISTRICT BIDAR – 585 401.

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…RESPONDENTS

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(BY SRI. SHARANABASAPPA K BABSHETTY ADV FOR R1 V/O DATED 07.02.2024 NOTICE TO R3 TO R6 DISPENSED WITH)

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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 ANY OTHER WRIT OR DIRECTION TO QUASH THE IMPUGNED ORDER DATED 21-12-2023 IN O.S.NO.35/2015 AS AT ANNEXURE-F PASSED BY THE COURT OF CIVIL JUDGE AND JMFC AT BHALKI AS CONTRARY TO THE SETTLED PROPOSITION OF LAW, IN THE INTEREST OF JUSTICE AND EQUITY.

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3 - ��

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

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR)

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This petition by defendant No.3 in O.S.No.35/2015 on the file

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of the Addl. Civil Judge & JMFC, Bhalki, is directed against the impugned order dated 21.12.2023 whereby the application filed by the petitioner – defendant No.3 under Order 13 Rule 10 CPC was rejected by the Trial Court.

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Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.

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A perusal of the material on record will indicate that respondent No.1 – plaintiff instituted the aforesaid suit against the petitioner – defendant No.3 and other defendants for partition and separate possession of their alleged share in the suit schedule property. The said suit having been contested by the petitioner – defendant No.3, she filed the instant application seeking summoning of the records in details from PWD office, Bhalki. The

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said application having been opposed by the plaintiff, the Trial Court proceeded to pass the impugned order rejecting the application on the ground that Order 13 Rule 10 CPC cannot be invoked by the parties for summoning the records from the PWD office since the said provision was applicable only to summon the records from another Court and not from PWD Office. In my considered opinion, the Trial Court misdirected itself in failing to appreciate that the petitioner had quoted the wrong provisions and incorrectly, invoked Order 13 Rule 10 CPC instead of envoking Order 16 Rules 6 and 7 CPC, which contemplates that summons can be issued to any person to produce documents.

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In other words, the Trial Court failed to appreciate that though Order 13 Rule 10 CPC would not be applicable to the application / request made by the petitioner, which ought to have been filed by invoking Order 16 Rules 6 and 7 CPC, mere citing / quoting of wrong provision cannot be made the basis to reject the application, which is well settled principle of law and consequently, the impugned order passed by the Trial Court rejecting the application deserves to be set aside and application filed by the petitioner deserves to be allowed.

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In the result, I pass the following:

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ORDER

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(i) The petition is hereby allowed .

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(ii) The impugned order at Annexure – F dated 21.12.2023 passed in O.S.No.35/2015 by Addl. Civil Judge & JMFC, Bhalki, is hereby set aside .

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(iii) The application filed by the petitioner under

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Order 13 Rule 10 CPC dated 04.07.2023 is directed to be construed / treated as application under Order 16 Rules 6 and 7 CPC.

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(iv) Accordingly, the said application is hereby

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allowed.

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(v) The Trial Court is directed to proceed further in the matter and summon / secure the records as sought for by the petitioner in the application and proceed further in accordance with law.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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List No.: 1 Sl No.: 30

Nagamma v. Shakunatala and Ors.

Case brief

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Nagamma v. Shakunatala and Ors.

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