Allowed

Sri Kotrappa v. Sri Shankarappa

Karnataka HC7 Feb 2024WP/26840/2017

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging orders remanding a partition suit. The court quashed orders allowing applications under Section 151 CPC and Order 18 Rule 17 CPC, citing lack of evidence and failure to apply mind. Directed first appellate court to dispose merits within six months.

What did the court decide?

Orders dated 10.02.2017 and 26.04.2017 set aside. First appellate court directed to dispose within six months.

Sri Kotrappa Vs Sri Shankarappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:5214 WP No. 26840 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH 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. 26840 OF 2017 (GM-CPC)

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BETWEEN:

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SRI KOTRAPPA, S/O. ADOPTIVE FATHER SRI. SANNAKOTRAPPA BANAKAR, AGED ABOUT 75 YEARS, R/O. VRUTTIKOPPA, ANAVATTI HOBLI, SORAB TALUK, SHIVAMOGGA - 577 429 SENIOR CITIZEN BENEFITS NOT CLAIMED

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…PETITIONER

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Digitally signed by PAVITHRA N Location: high court of karnataka

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(BY SRI: BIMBADHAR .M. GOUDAR, ADVOCATE)

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AND:

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SRI. SHANKARAPPA, S/O. SRI. BASAVANYAPPA, AGED ABOUT 53 YEARS, R/O. VRUTTIKOPPA, ANAVATTI HOBLI, SORAB TALUK, SHIVAMOGGA - 577 429.

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SMT. SHEELAMMA, W/O. SRI. PARAMESHWARAPPA, AGED ABOUT 39 YEARS, R/O. VRUTTIKOPPA, ANAVATI HOBLI, SORAB TALUK, SHIVAMOGGA - 577 429

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SRI. BASAVARAJAPPA, S/O. SRI. BASAVANYAPPA, AGED ABOUT 41 YEARS, R/O. VRUTTIKOPPA, ANAVATI HOBLI, SORAB TALUK, SHIVAMOGGA - 577 429.

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NC: 2024:KHC:5214 WP No. 26840 of 2017

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SRI. MANJAPPA, S/O. SRI. PUTTAPPA, AGED ABOUT 43 YEARS, R/O. VRUTTIKOPPA, ANAVATI HOBLI, SORAB TALUK, SHIVAMOGGA - 577 429

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…RESPONDENTS

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(BY SRI: S.V. PRAKASH, ADVOCATE FOR R1, R3 & R4 R2 - H/S, V/O DT.27/7/17)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD:10.2.2017 PASSED BY THE III ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA IN RA NO.22/2012 AS PER ANNEXURE-J AND CONSEQUENTIAL ORDER DTD:26.4.2017 PASSED BY CIVIL JUDGE [SENIOR DIVISION] & JMFC, SORAB ON IA NO.26 IN O.S.NO.322/2007 AS PER ANNEXURE-M 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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ORDER

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The petitioner being the husband of respondent No.1 in RA.No.22 of 2012 on the file the learned III Additional District Judge, Shivamogga is seeking writ of certiorari to quash the order dated 10.02.2017 allowing the application IA No.3 filed under Section 151 of CPC and remanding the appeal to the trial Court permitting the appellants to adduce further evidence on additional issue and to return records with its findings. The petitioner is also impugning the order dated 26.04.2017 passed

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NC: 2024:KHC:5214 WP No. 26840 of 2017

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in OS.No.322/2007 on the file of the learned Civil Judge (Senior Division) & JMFC, Sorab allowing IA No.26 filed under Order 18 Rule 17 to recall PWs.1 to 4 for their cross examination.

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Heard Sri. Bimbadhar.M.Goudar, learned counsel for

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the petitioner and Sri. S.V.Prakash, learned counsel for respondent Nos.1, 3 and 4.

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Learned counsel for the petitioners submitted that originally the mother of the petitioner filed the suit OS.No.322/2007 for partition and separate possession of her share in the schedule properties. The suit was came to be decreed during the year 2011 as per decree dated 15.11.2011 allotting the share in favour of the original plaintiff. Defendant Nos.1 to 3 in the suit preferred RA No.22/2012. During the pendency, the original plaintiff died on 27.07.2013. The petitioner filed an application seeking his impleadment on the basis of the registered Will executed by the original plaintiff in his favour which is date 06.07.2007. The said application was considered by the first appellate Court and the matter was remanded to the trial Court to give a finding on the said registered Will. To prove the Will, PWs.5, 7 and 8 were

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examined and cross examined by the respondent. But they have not cross examined PW6. On the basis of the materials on record, the trial Court recorded a finding on the additional issue, drawn decree and forwarded the same to the first appellate Court. When the matter was pending before the first Appellate Court, the respondents have come up with a application under Section 151 of CPC seeking remand of the matter on the ground that an unregistered Will was executed by the original plaintiff on 06.04.2012 and they want to adduce evidence on the same. The first Appellate Court without considering the fact that the respondents have never challenged the decree drawn by the trial Court on its finding on the registered Will dated 06.07.2007, proceeded to allow the application ignoring the fact that no additional document was produced by the respondents including the Will said to have been executed on 06.04.2012. Thereby the first Appellate Court committed an error in passing its order.

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Learned counsel further submitted that after remanding the matter, respondents have filed IA No.26 seeking to recall PWs.1 to 4, initially examined before the trial Court. No reasons are assigned to recall PWs.1 to 4 after lapse of

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more than a decade. Learned counsel submits that the witnesses on behalf of the plaintiff are now aged more than 84 years. They are hard of hearing and lack presence of mind. Under such circumstances, respondents want to take advantage of their condition. Till date, so called Will dated 06.04.2012 is not produced either before the first Appellate Court or before the trial Court.

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Learned counsel submitted that the only ground made out by the respondents in the affidavit accompanying application is that the counsel representing the respondents herein were not given instructions by the respondents as the wife respondent No.1 was ill and was admitted to the hospital. The medical records discloses that, for certain period she was admitted to the hospital. But decree was passed by the trial Court on 13.10.2015. There is absolutely no material on record to support the contention of the respondent that either the respondents or their family members were admitted to the hospital during that period of time. The trial Court and the first appellate Court ignoring all these facts and circumstances, proceeded to remand the matter once again without application of mind.

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Learned counsel submitted that even though the suit is filed in the year 2007 and obtained decree in 2011, the original plaintiff died without enjoying the fruits of the decree. Even now the matter is being remanded to the trial court again and again without there being any justifiable cause. The trial Court is also permitting the respondents to file applications to recall the witnesses who were examined long back without there being any reason. Hence, prays for setting aside both the orders by allowing the petition.

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Per contra , learned counsel for the respondents opposing the petition submitted that initially, the matter was remanded to the trial Court by the first Appellate Court at the instance of the petitioner himself. The finding was called for by the first Appellate Court and the first Appellate Court was not called upon to draw a decree on the same. Therefore, the respondents have not challenged the decree.

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Learned counsel submitted that the unregistered Will dated 06.04.2012 is referred to by the respondents in their application and affidavit and the same is permitted to produce before the trial Court. Therefore, the responds are duty bound

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to produce the same before the trial Court. When additional issue regarding proof of unregistered Will dated 06.04.2012 is framed, the first Appellate Court rightly remanded the matter to the trial Court.

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In proof of additional issue Nos.1 and 2 the respondents are required to lead their evidence for the very same purpose. IA No.26 is filed seeking to recall PWs.1 to 4. There are no illegality or perversity in the order passed either by the first appellate Court or by the trial Court. Hence, prays for dismissal of the petition in the interest of justice. As otherwise, valuable right of respondents will be taken away. Accordingly, prays for dismissal of the petition.

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The admitted facts of the case are that, the mother of the petitioner filed the suit OS.322/2007 seeking partition and separate possession of her share. The suit was came to be decreed vide judgment and decree dated 15.11.2011. The respondents being defendant Nos.1 to 3 challenged the said decree by preferring an appeal in RA No.22/2012. During pendency of the appeal, original plaintiff being the respondent No.1 in the appeal died on 27.07.2013. The petitioner filed an

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application seeking his impleadment on the basis of the registered Will dated 06.07.2007 the said application was allowed and the matter was remanded back to the trial Court to record the evidence and give a finding on Additional issue No.1 in proof of the registered Will dated 06.07.2007.

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After remanding the matter, the trial Court recorded the evidence of additional witnesses on Additional issue No.1 and given a finding in proof of the same and additional decree was also drawn to the effect that petitioner Kotrappa to be the only legal representative of deceased plaintiff is entitled for the share of the deceased by virtue of registered Will dated 06.07.2007. Admittedly, the decree was never challenged by the respondents.

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It is the contention of the learned counsel for the respondents that trial Court was not supposed to draw a decree as the direction by the first Appellate Court was only to record a finding and forward the same cannot be accepted as the trial Court has drawn decree as required under law and even if the trial Court had drawn the decree exceeding its limits, the same

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should have been challenged by the respondents. No such attempts were made by the respondents.

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When the matter was set down for addressing arguments before the first Appellate Court, an application under Section 151 of CPC is filed seeking remand of the matter contended that the original plaintiff has left behind an unregistered Will dated 06.04.2012. The first appellate Court considered the contention taken by the respondents and observed that the appellants before it have not adduced evidence after remand of the matter. The earlier order of the Court remanding the matter or the finding of the trial Court on Additional issue No.1 were not challenged by the respondents. It is also observed that the appellants therein have not produced the Will they are referring to but inspite of that the first Appellate Court proceeded to remand the matter to record a finding on the Additional Issue No.2. When the Will referred to by the respondents was never produced before the Court, the first Appellate Court proceeded to remand the matter without application of mind. Remanding the matter to the trial Court casually to afford an opportunity to the parties to produce the additional documents before the trial Court is

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unknown to law. The first appellate Court before proceeding to remand the matter should have applied its mind about the grounds on which respondents are seeking remand of the matter. When the material documents was not before it, it could not have remanded the matter to the trial court. Therefore, I am of the opinion that the order dated 10.02.2017 passed in RA No.22/2012 remanding the matter to the trial court by allowing application under Section 151of CPC is liable to be set aside.

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After remanding the matter to the trial Court, the respondents herein have filed IA No.26 Under Order 18 Rule 17 of CPC to recall PWs.1 to 4 for cross examination. Admittedly, PWs.1 to 4 are already cross examined by the respondents long back. After first remand, PWs.5 to 8 were examined to prove the execution of registered Will dated 06.07.2007. Of course PWs.5 and 7 appear to be examined earlier as PWs.1 and 2 but the respondents have not sought for recalling PWs.5 to 8 for cross examination. There is absolutely no reasons assigned as to why PWs.1 to 4 are to be recalled. Interestingly, till today, so called unregistered Will dated 06.04.2012 upon which the respondents are relying are produced before the trial Court.

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NC: 2024:KHC:5214 WP No. 26840 of 2017

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The remand order by the first Appellate Court which is impugned here is dated 10.02.2017. Even after 6 years, the said document has not seen the light of the day and the matter is pending before the trial Court without any purpose.

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It is a classic case where the suit of this nature for partition and separate possession are being dragged indefinitely without any reason. Unfortunately the Courts are also contributing to such pendency by passing such orders without application of mind. If the first appellate Court has applied its mind when an application under Section 151 of CPC was filed before it, the remanding of the matter in the year 2017 could have been avoided. Similarly, the trial Court has also proceeded to allow the application to recall PWs.1 to 4 without knowing as to why PWs.1 to 4 who are already cross examined long back are required to be recalled and why the matter is to be kept pending when the Will relied on by the respondents was not yet produced before it. Thereby the order of remand itself has been frustrated.

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Therefore, I am of the opinion that there are no reasons to support the order either passed by the first

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Appellate Court or by the trial Court. Hence, both the orders are 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 10.02.2017 in RA.No.22 of 2012 on the file the learned III Additional District Judge, Shivamogga allowing the application IA No.3 and the order dated 26.04.2017 passed in OS.No.322/2007 on the file of the learned Civil Judge (Senior Division) & JMFC, Sorab allowing IA No.26 are set aside.

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iii. The first appellate Court is directed to expedite the matter and to dispose of the appeal on merits, at least within six months from today with the cooperation of both the learned counsel.

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Sd/JUDGE

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List No.: 1 Sl No.: 4

Sri Kotrappa v. Sri Shankarappa

Case brief

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Sri Kotrappa v. Sri Shankarappa

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