Smt. Yashodhamma Vs Krishnaiah Dead by His Lrs

SMT LATHA, D/O DODDAHANUMANTHAIAH, W/O SRI SURESH, AGED ABOUT 42 YEARS, R/AT KITHAGANAHALLI VILLAGE, KASABA HOBLI, TUMKUR TALUK, TUMKUR DISTRICT - 572 118.

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…PETITIONERS

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Digitally signed by KAVYA R Location: High Court of Karnataka

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(BY SRI. RAJANNA H., ADVOCATE)

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AND:

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KRISHNAIAH DEAD BY HIS LRS, SMT PUTTAVEERAMMA, W/O LATE KRISHNAIAH, AGED ABOUT 63 YEARS, R/AT NO.46/5, ESI QUARTERS, NANDINI LAYOUT, BANGALORE - 560 016.

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K RADHA, D/O LATE KRISHNAIAH, AGED ABOUT 42 YEARS, R/AT NO.46/5, ESI QUARTERS,

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HC-KAR

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NANDINI LAYOUT, BANGALORE - 560 016.

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SRI RAJESH, S/O LATE KRISHNAIAH, AGED ABOUT 39 YEARS, R/AT NO.46/5, ESI QUARTERS, NANDINI LAYOUT, BANGALORE - 560 016.

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SIDDESH,

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S/O LATE KRISHNAIAH, AGED ABOUT 37 YEARS, R/AT NO.46/5, ESI QUARTERS, NANDINI LAYOUT, BANGALORE - 560 016.

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SRI APPEGOWDA, S/O LTE GANGAHANUMAIAH, AGED ABOUT 79 YEARS, R/AT SANKAPURA VILLAGE, GULUR HOBLI, TUMKUR TALUK, TUMKUR DISTRICT - 572 118.

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…RESPONDENTS

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(R1, R2, R3, R4, AND R5 ARE SERVED AND UNREPRESENTED)

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THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO-CALL FOR THE RECORDS IN O.S.NO.185/2006 IN RESPECT OF THE IMPUGNED ORDER DATED 20.07.2021 PASSED BY THE VI ADDITIONAL CIVIL JUDGE AND JMFC, AT TUMKUR ON APPLICAITON UNDER ORDER XVIII RULE 17 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE FOR RECALL OF PW-1 AND P4, APPLICATION WHICH FILED BY THE PETITIONERS U/S 151 OF THE CODE OF CIVIL PROCEDURE BY THE VI ADDITIONAL CIVIL JUDGE AND JMFC, AT TUMKUR IN O.S.NO.185/2006 AND ETC.,

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

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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HC-KAR

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ORAL ORDER

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Plaintiff Nos.1 and 2 are before this Court in this writ petition filed under article 226 of the Constitution of India with a prayer to set aside the order dated 20.07.2021 passed on the application's filed on behalf of the plaintiffs in O.S.No.185/2006 under Order XVIII Rule 17 read with Section 151 of CPC and application filed under Section 151 of CPC by the Court of VI Additional Civil Judge and JMFC, Tumakuru.

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Heard the learned counsel for the petitioners.

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Respondents who are served in the matter have remained unrepresented before this Court.

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Suit in O.S.No.185/2006 is filed before the Jurisdictional Civil Court at Tumakuru seeking relief of general partition in respect of the suit schedule property. The contesting defendants have filed written statement opposing the suit claim. When the suit was at the stage of addressing arguments, two applications were filed on behalf of the plaintiffs. Application under Order XVIII Rule

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HC-KAR

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17 read with Section 151 of CPC was filed to recall PW.1

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and PW.4 for further chief examination and another application under Section 151 of CPC was filed to reopen the case. The said applications were opposed by the contesting defendants by filing common objections. The Trial Court vide the order impugned had rejected both the applications and being aggrieved by the same plaintiff Nos.1 and 2 are before this Court.

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Learned Counsel for the petitioners having

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reiterated the grounds urged in this petition submits that petitioners intend to produce one relevant document which is the sale deed dated 15.01.1965. The said sale deed was earlier produced in O.S.No.191/1973 and in spite of best efforts made by the petitioners earlier, the said document could not be traced by them. After taking back the original of the aforesaid document which was filed in O.S.No.191/1973 the present applications were made. He has filed a memo before this Court stating that he intends to produce only aforesaid document before the Trial Court

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HC-KAR

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and learned counsel for the petitioners has also submitted that if PW.1 is recalled for the purpose of producing and marking the aforesaid document before the Trial Court that would secure ends of justice.

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The contesting defendants who have been served

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in this writ petition have remained unrepresented before this court.

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According to the learned counsel for the petitioner the aforesaid document dated 15.01.1965 is very much relevant for the purpose of proper and effective adjudication of the dispute involved in the suit. Under the circumstances, I am of the opinion that if the petitioners are permitted to produce the aforesaid documents by re-calling PW.1, the same would not only serve the ends of justice but it also avoid multiplicity of proceedings. On the other hand, if the relief sought for in the writ petition is granted, no hardship or injury would be caused to the other side and inconvenience, if any, caused to the other

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HC-KAR

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side can be compensated monetarily. Accordingly, the following:

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ORDER

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(i) The writ Petition is partly allowed

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with cost of Rs.1,000/- (Rupees One Thousand only), cost to be paid before the Trial Court on the next date of hearing.

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(ii) The impugned order dated 20.07.2021 passed on applications filed on behalf of the plaintiffs under Section 151 of CPC

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and under Order XVIII Rule 17 read with Sections 151 of CPC is set aside.

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(iii) The prayer made in the application

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filed on behalf of the petitioners under Section 151 of CPC to re-open the case is granted.

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(iv) The prayer made by the petitioners in

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their application filed under Order XVIII and Rule 17 read with Section 151 of CPC is partly granted

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HC-KAR

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and the petitioners are permitted to produced the aforesaid documents namely sale deed dated 15.01.1965 before the Trial Court and for the purpose of enabling petitioners to produce and mark the said documents. PW.1 is re-called as

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prayed in the application filed on behalf of plaintiffs. The prayer made by the petitioners to re-call PW-4 is rejected.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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KVR List No.: 1 Sl No.: 18

Smt. Yashodhamma v. Krishnaiah Dead by His Lrs

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Smt. Yashodhamma v. Krishnaiah Dead by His Lrs

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