Smt. Lakshmidevamma Vs D.V. Nanjunda Swamy

PETITIONERS NO.1 TO 3 ARE RESIDING AT RAMASWAMY PALYA HAMLET OF NAGANAYAKANA KOTE SAMETHANAHALLI POST ANUGONDANAHALLI HOBLI HOSAKOTE TALUK BENGALURU RURAL DISTRICT.

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SMT. MANJULA AGED ABOUT 55 YEARS D/O M.M. RAMASWAMY W/O DR. BALASUBRAMANYA RESIDING AT MUTHUR STREET NEAR RAGHAVENDRA TEMPLE SHIDLAGHATTA TALUK

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HC-KAR

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CHIKKABALLAPURA DISTRICT.

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SMT. SHOBHA AGED ABOUT 49 YEARS D/O M.M. RAMASWAMY W/O SRI SRINIVAS RESIDING AT RAMASWAMY PALLI KASBA HOBLI, BAGEPALLI TALUK.

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…PETITIONERS

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(BY SRI. CHANDRASHEKARA REDDY M.V. ADV.,)

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AND:

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D.V. NANJUNDA SWAMY AGED ABOUT 76 YEARS S/O LATE VENKATASWAMAPPA R/AT NARASIMHA PET, CHINTAMANI TOWN CHIKKABALLAPURA DISTRICT.

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SMT. LAKSHMIDEVAMMA SINCE DEAD BY HER LR'S.

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2(a) D.N. SHANKARAMMA MAJOR W/O KRISHNA MURTHY (ELECTRICAL ENGINEER) R/AT NEAR SHESH MAHAL THEATER MADANAPALLI TOWN CHITTOR DISTRICT, A.P.

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2(b) B.N. KALPANA MAJOR W/O KRISHNA MURTHY (FINANCIER) R/AT NEERU BHAVI BEEDHI ROAD HEBBAL, BENGALURU.

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2(c) N. NAGAMANI MAJOR W/O S. NATARAJ

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(NATARAJ S/O T. SEENAPPA, EX-CHAIRMAN) R/AT. DALASUNOOR VILLAGE AND POST SRINIVASAPURA TALUK KOLAR DISTRICT.

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2(d) D.N. ROOPA MAJOR W/O SRI VINAY KUMAR D/O BORAGALA VENKATAPPA R/AT NEAR VENKATESHWARA SCHOOL K R PURAM, BENGALURU.

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D.N. SHANKAR NARAYANASWAMY

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AGED ABOUT 52 YEARS S/O D.V. NANJUNDASWAMY R/AT DEVALA VENKATASWAMY COMPOUND NAGANATHESHWARA TEMPLE ROAD NARASIMHA PET, CHINTAMANI TOWN CHIKKABALLAPUR DISTRICT.

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…RESPONDENTS

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(BY SRI. SUHAS T.L. ADV., FOR R1 & R3 R2 (b), R2(c) ARE SERVED V/O/DTD:22.07.2025, NOTICE IS H/S IN R/O R2(a) & R2(d))

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR ORDER OR ORDERS BY QUASHING THE ORDER DATED 23.7.2019 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AT CHINTAMANI ON I.A.NO.50 IN O.S.NO.2/1993 PRODUCED AS PER ANNEXURE-H AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE LEGAL HEIRS OF THE PETITIONERS/PLAINTIFFS U/S 151 OF THE CODE OF CIVIL PROCEDURE, 1908 AS PER I.A.NO.50 FOR REOPENING CASE BY CALLING THE ORDER DATED 15.3.2019 BY RESERVING LIBERTY TO THE PETITIONERS HEREIN AS PER MEMO DATED 1.4.2019 PRODUCED AT ANNEXURE-F AND TO DECIDE THE SAID SUIT ON MERITS, WITH THE COST OF THIS PETITION & ETC.

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated 23.07.2019 passed on IA.No.50 in OS.No.2/1993 by the

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Senior Civil Judge and JMFC at Chintamani (for short ‘the trial Court’).

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Heard Sri.Chandrashekara Reddy M.V., learned

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counsel for the petitioners and Sri.Suhas T.L., learned counsel appearing for respondent No.1 and 3.

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The petitioners filed OS.No.2/1993 for relief of

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partition and separate possession of the suit schedule properties. In the said suit, respondent No.1 filed a detailed written statement. Thereafter, the trial Court framed the issues and the trial in the said suit commenced. During the pendency of the said suit, the plaintiffs as well as the defendants placed reliance on

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independent Wills claiming right over the suit schedule properties. Considering the pleading, the trial Court framed an additional issue No.3 on 25.02.2019, wherein the burden was casted upon the plaintiffs to prove the Will dated 18.11.1992. It is to be noticed that the plaintiffs had already adduced their evidence, and their evidence was closed in the year 2007. The records indicate that after framing of the additional issue No.3 on 25.02.2019, the counsel for the plaintiffs filed a memo stating that the LRs of plaintiff No.2 were closing the evidence on their side by reserving liberty to lead rebuttal evidence in the above case on the grounds of justice and equity. The trial Court recorded the said memo and posted the matter for the defendants’ evidence.

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The orders sheet indicates that the defendants

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adduced their evidence in part. In the meanwhile, the defendants filed IA.No.49 seeking a direction to plaintiff No.2 to adduce their side of further evidence by examining attesters of the Will marked as Ex.P16 if they are intended

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to do so or to state categorically whether they are examining the witnesses or not. Admittedly the said application remained pending before the trial Court. The records further indicate that the petitioners/plaintiffs filed an application in IA.No.50/2019 under Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') seeking prayer to reopen the evidence by recalling the order dated 15.03.2019 by permitting the plaintiffs to adduce further evidence on the ground that the they could not adduce the evidence with respect to additional issue No.3. The affidavit accompanying the application indicates that the further evidence was required in the matter in relation to additional issue No.3. The said application was opposed by the respondents by filing objections on the ground that the suit is of the year 1993 and that the plaintiffs’ evidence had already been closed in the year 2007 and thereafter, the trial Court has provided an opportunity to the plaintiffs to adduce further evidence on additional issue No.3.

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HC-KAR

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However, the counsel has stated that they do not have any evidence and accordingly the memo was filed.

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It is to be noticed that the counsel for the plaintiffs had filed a memo seeking liberty of the Court to rebut the evidence if need arises. Be that it may, admittedly, the additional issue No.3 was framed by the trial Court on 25.02.2019, wherein the burden is casted upon plaintiff No.2 to prove the Will dated 18.11.1992. To discharge the said burden, admittedly, the plaintiffs did not adduce the evidence on the said issue, as their evidence was closed in the year 2007 itself.

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Considering the aforesaid aspects, I am of the considered view that one opportunity needs to be provided to the plaintiffs to adduce the evidence on additional issue No.3. However, it cannot be ignored that the filing of application to reopen the case is at the belated stage and the suit is of the year 1993. I am of the view that the said

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application is required to be allowed on terms. For the aforementioned reasons, I proceed to pass the following:

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ORDER

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i. The writ petition is allowed .

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ii. The impugned order dated 23.07.2019 passed on IA.No.50 in OS.No.2/1993 by the Senior Civil Judge and JMFC at Chintamani is hereby set aside. Consequently, IA.No.50 filed by the plaintiff is allowed.

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iii. The plaintiffs are permitted to lead further evidence subject to condition that the plaintiffs shall pay a cost of Rs.10,000/- to the defendants.

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iv. It is needless to observe that the defendants can cross examine on further evidence. Thereafter, the

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