M N Swamy vs M L Swamy
2021 Latest Caselaw 6021 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 13TH DAY OF DECEMBER 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

        WRIT PETITION NO.21952/2021 (GM-CPC)

BETWEEN :

        M.N.SWAMY,
        AGED ABOUT 58 YEARS,
        S/O C.P.S.SWAMY,
        R/O MYLARA TRADERS,
        NEAR PRIVATE BUS STAND,
        B.H.ROAD, C.N.HALLI TOWN,
        TUMKUR DISTRICT - 572 201.
                                         ... PETITIONER
(BY SMT.SHRUTHI.S.P., ADV., FOR
     SRI. VINAYA KEERTHY.M, ADV.,)
AND :

1.      M.L.SWAMY,
        AGED ABOUT 61 YEARS,
        S/O C.P.S.SWAMY,
        R/O PETEBEEDI,
        C.N.HALLI TOWN,
        TUMKUR DISTRICT - 572 201.

2.      LAKSHMI SWAMY,
        AGED ABOUT 78 YEARS,
        W/O C.P.S.SWAMY,
        R/O MYLARA TRADERS,
        NEAR PRIVATE BUS STAND,
        B.H.ROAD, C.N.HALLI TOWN,
        TUMKUR DISTRICT - 572 201.
                              2



3.   B.V.SHREEDEVI,
     AGED ABOUT 60 YEARS,
     W/O VENKATESHA MURTHY,
     D/O C.P.S.SWAMY,
     R/O NEAR RAMAGOPAL CIRCLE,
     HULIYAR TOWN,
     C.N.HALLI TALUK,
     TUMKUR DISTRICT - 572 201.
                                         ... RESPONDENTS
     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 28.09.2021 PASSED BY
LEARNED     SENIOR    CIVIL   JUDGE   AND    JMFC,
CHIKKANAYAKANAHALLI, DISMISSING I.A. NO.9 IN
O.S.No.7/2017, AT ANNEXURE-G, & ETC.

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

                       ORDER

The petitioner, who is the second defendant in

O.S. No.7/2017 on the file of the Senior Civil Judge and

JMFC, Chikkanayakanahalli [for short, 'the civil Court',

has impugned the civil Court's order dated 28.09.2021.

The civil Court by this order has rejected the petitioner's

application [I.A. No.IX] filed under Section 66 of the

Evidence Act, 1872 read with Section 151 of the Code of

Civil Procedure, 1908 [for short 'CPC'] for production of

certain documents.

2. The first respondent has filed this suit in O.S.

No.7/2017 for partition asserting one-third [1/3rd] share

in different immovable and movable properties

mentioned in the plaint schedule, and the petitioner has

contested the suit asserting a prior partition in the year

1985 between the parties to the proceedings. The

petitioner has filed the present application for direction

to the plaintiff to produce the original of the

Memorandum that purportedly witnesses a prior

partition, asserting that the original is retained by the

plaintiff--first respondent and he has in his custody

only a photocopy of the same. This application is

rejected by the civil Court by its order, which reads as

under:

" .......... This is a suit for partition and separate possession over the suit schedule property. The defendant took contention that the aforesaid documents which are seeking with the plaintiff. In contrary thereto, the plaintiff asserted no such documents with him. I perused the

averments of both the parties, I hold that there is no corroborative and cogent evidence in support of the contention of the defendant No.2. The learned counsel for defendant relied judgment in CIVIL APPEAL No.1960 OF 2020 (Arising out of SLP (CIVIL) No.22496 of 2014). I have gone through said citation and it is not applicable to the present case. Hence it is just and necessary to pass the following order."

3. This Court, in the facts and circumstances of the

case, is of the considered view that notwithstanding the

impugned order, the petitioner could file appropriate

application to establish the necessary conditions as

contemplated under Sections 65 and 66 of the Evidence

Act, 1872 for leave to produce the secondary evidence.

The petition stands disposed of accordingly.

Sd/-

JUDGE

RK/-

Ct: SN