Mr. Prakash Nagosa Pawar vs Smt. Nirmala Gyanusa Shiralkar
2021 Latest Caselaw 1681 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 02ND DAY OF MARCH, 2021

                               BEFORE

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

       Writ Petition Nos.104935/2017 & 105175/2017 (GM-CPC)

Between

Mr. Prakash Nagosa Pawar,
Deceased by his L.Rs.
1(a)    Smt. Rekha W/o. Prakash Pawar,
        Age 48 years, Occ: Household,
        R/o. 266, Ganesh Peth, June Belgavi, Belagavi.
1(b)    Vilas S/o. Prakash Pawar
        Age 24 years, Occ: Student,
        R/o. 266, Ganesh Peth, June Belgavi, Belgavi.
1(c)    Shivani D/o. Prakash Pawar,
        Age 18 years, Occ: Student,
        R/o. 266, Ganesh Peth, June Belgavi, Belgavi.
                                                          ...Petitioners
(By Sri. V.G.Bhat, Advocate)
And

Smt. Nirmala Gyanusa Shiralkar,
Age Major, Occ: Household,
R/o. 226, Ganesh Peth, June Belgavi, Belgavi.
                                                         ... Respondent
(Sri. S.S.Yaligar, Advocate for
Mrutyunjay Tata Bangi, Advocate for respondent)

     These writ petitions are filed under Articles 226 & 227 of
the Constitution of India praying to quash the common order
passed on I.A.No.5 & 6 dated 24.04.2017 passed in FDP
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No.14/2008 by the Court of II Additional Senior Civil Judge,
Belagavi, vide Annexure-F.

      These writ petitions coming on for Orders, this day, the
Court made the following:

                            ORDER

The defendant No.1/Judgment Debtor has invoked the writ

jurisdiction under Article 227 of the Constitution of India,

challenging the order passed by the Principal Civil Judge (Sr.

Dn.), Belagavi in FDP No.14/2008 on I.A.No.5 filed under

Section 151 of CPC and I.A.No.6 filed under Order 18 Rule 17

read with Section 151 of CPC.

2. The plaintiff based on the preliminary decree passed

in O.S.No.174/1998, initiated final decree proceedings to effect

partition by metes and bounds as per the terms of the

preliminary decree. In the said final decree proceeding, the

Judgment Debtor No.1 has filed an application i.e. I.A.No.5 to

reopen the case from the stage of evidence, so as to enable him

to adduce evidence and also I.A.No.6 to recall R.W.2 for further

evidence.

3. The trial Court by its order dated 24.04.2017,

dismissed the said applications. Being aggrieved by the same,

the Judgment Debtor has filed this writ petition.

4. I have heard the learned counsel for the parties and

perused the material placed before this Court.

5. In the application for recalling, it is stated that, the

execution of Will was wrongly typed as 12.11.2009, instead of

11.12.2009 and the said mistake was bonafide mistake

committed by the counsel who prepared the affidavit. So as to

get the clarification with regard to date of execution of Will from

the R.W.2, the Judgment Debtor filed an application to re-open

the case and permit him to further examine R.W.2. The trial

Court dismissed the said applications on the ground that, the

matter has been posted for arguments and therefore, it cannot

be said that through oversight and inadvertently, the date of the

Will was wrongly typed.

6. It is not in dispute that, the date of the execution of

Will is dated 11.12.2009, however, inadvertently it is mentioned

as 12.11.2009, which appears to be a bonafide mistake. Hence,

the impugned order passed by the trial Court is not sustainable

in law. Accordingly, I pass the following order:

ORDER

The writ petitions are allowed.

The impugned order dated 24.04.2017 passed by the II

Additional Senior Civil Judge, Belagavi, on I.A.Nos.5 & 6 is set

aside and consequently, I.A.Nos.5 & 6 are allowed.

The Judgment Debtor shall further examine R.W.2 as

witness on the next date of hearing and shall not take any

adjournment.

It is expected that the FDP Court shall conclude the

proceedings at the earliest.

Sd/-

JUDGE

*Svh/-