Sri. Hanumanthappa S/O Tirakappa ... vs The Government Of Karnataka
2021 Latest Caselaw 1694 Kant

                               1




             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

           DATED THIS THE 3rd DAY OF MARCH 2021

                          BEFORE

      THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              WP NO.100620 OF 2021 (GM-CPC)

BETWEEN

SRI.HANUMANTHAPPA S/O TIRAKAPPA PADDAR ALIAS MILLI,
AGE 58 YEARS, OCC AGRICULTURE, R/O BALEHOSUR,
TQ SHIRHATTI,DIST GADAG.
                                            ...PETITIONER
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADV.)

AND

1. THE GOVERNMENT OF KARNATAKA,
REPRESENTED BY THE DEPUTY COMMISSIONER,
GADAG DISTRICT,GADAG.

2. THE SUPERINTENDENT OF POLICE
GADAG DISTRICT,GADAG.

3. THE POLICE SUB-INSPECTOR,
LAXMESHWAR POLICE STATION,
TQ SHIRAHATTI,DIST GADAG.
                                            ...RESPONDENTS

(BY SMT. SEEMA SHIVA NAIK, HCGP FOR R.Nos.1-3)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
ORDER DATED 15.02.2021 ON I.A.NO.10 TO 12 IN O.S.NO.49/2002
PASSED BY THE LEARNED CIVIL JUDGE AND JMFC, LAXMESHWAR,
PRODCED AS ANNEXURE-K, AND ALLOW THE APPLICATION
I.A.NO.10 TO 12 VIDE ANNEXURE-E F, AND H RESPECTIVELY.
                                         2




            THIS WRIT PETITION IS COMING ON FOR ORDERS THIS
      DAY, THE COURT MADE THE FOLLOWING:

                                      ORDER

1. Plaintiff has invoked writ jurisdiction under Articles 226

and 227 of the Constitution of India challenging the order dated

15.02.2002 passed by the Civil Judge and JMFC, Laxmeshwar in

O.S.No.49/2002 on I.A.Nos.X to XII.

2. Plaintiff has filed suit for declaration and permanent

injunction. The said suit came to be decreed against which Regular

Appeal No.107/2006 was filed. The First Appellate Court dismissed

the appeal. Against which, defendants-State have filed

RSA.No.5120/2010 before this Court. This Court by the judgment

dated 12.03.2020 remanded the matter to the First Appellate Court

and in turn the First Appellate Court set aside the judgment and

decree passed by the trial Court and further remanded the matter to

the trial Court. Thereafter, defendants filed applications for

production of documents and to re-open evidence of DW.1. The said

applications came to be allowed. At the stage of arguments, the

plaintiff filed application for appointment of the Court Commissioner

to collect the sale deed dated 20.10.1927 which was in Modi

language from the concerned Sub-Registrar office and to produce

translated copy of the same. The trial Court allowed the application

for appointment of Court Commissioner. Thereafter, the Court

Commissioner collected the sale deed which was in Modi language

and translated the same in Kannada language. Subsequently, the

plaintiff filed application for amendment of the plaint and also to

mark the sale deed produced by the Court Commissioner. The trial

Court rejected the applications. Hence this writ petition.

3. Learned counsel for the petitioner would submit that

unless and until the sale deed produced by the Court Commissioner

is marked, it has no evidentiary value. He further submits that as per

the sale deed produced by the Court Commissioner, amendment is

necessary. The property in question was not sold by predecessor of

the plaintiff in favour of one Ningayya. Hence, learned counsel

submits that order passed by the trial Court rejecting application for

marking of the sale deed produced by the Court Commissioner and

amendment of the plaint requires to be set aside.

4. Learned HCGP would submit that the trial Court has

rightly dismissed the applications and order passed by the trial Court

does not call for interference. Hence, sought for dismissal of the writ

petition.

5. I have examined the submissions made by the learned

counsel for the parties.

6. It is not in dispute that the First Appellate Court

remanded the suit to the trial Court for fresh hearing. The trial Court

appointed Court Commissioner to collect the sale deed dated

20.10.1927 which was in Modi language from the concerned Sub-

Registrar office and to produce translated copy of the same. The trial

Court has rejected the application filed by the plaintiff for marking of

the sale deed dated 20.10.1927 produced by the Court

Commissioner on the ground that marking of the sale deed cannot

be permitted, since the Court Commissioner's report is already

accepted. The trial Court has lost sight on the fact that, the plaintiff

is seeking for marking of the sale deed produced by the Court

Commissioner. If the same is not marked, it will lose its evidentiary

value. Hence, order passed by the trial Court refusing to permit the

plaintiffs to mark the sale deed produced by the Court Commissioner

is not sustainable in law.

7. Plaintiff has filed I.A.No.XII for amendment of plaint

stating that portion of the suit property was not sold by predecessor

of the plaintiff in favour of one Ningayya and also sought to amend

the prayer column with regard to land and boundaries. If the said

amendment is permitted, it will be contrary to the averments made

in plaint by the plaintiff. Hence, I.A.No.XII filed for amendment of

plaint and prayer column at belated stage is not permissible. Hence,

the order passed by the trial Court rejecting the amendment of plaint

is just and proper, and it does not call for interference.

8. In view of the same, the writ petition is allowed in part.

Impugned order dated 15.02.2021 passed by the Civil Judge and

JMFC, Laxmeshwar in O.S.No.49/2002 on I.A.Nos.X and XI is set

aside and the order passed on I.A.No.XII is confirmed. Plaintiff is

permitted to mark the sale deed produced by the Court

Commissioner and also mark his documents which were produced

along with I.A.No.XIII in accordance with law.

Sd/-

JUDGE Vb/-