Adila Khanam W/O Asad Ali Ansari vs Syed Amjad Hussain S/O Syed Ahmed ...
2022 Latest Caselaw 1973 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 08TH DAY OF FEBRUARY, 2022

                         BEFORE

          THE HON'BLE MR.JUSTICE E.S.INDIRESH

      WRIT PETITION NO.201886 OF 2021(GM-CPC)

ADILA KHANAM
W/O ASAD ALI ANSARI
AGE. 60 YEARS,
OCC. HOUSEHOLD,
R/O. NEW BANK COLONY,
JEELANABAD,
KALABURAGI,
THROUGH GPA ASAD ALI
S/O SARDAR ALI,
AGE. 64 YEAR,
OCC. BUSINESS.
                                           ...PETITIONER
(BY SRI GOPALKRISHNA B YADAV AND
 SRI MAQSOOD AFZAL JAGIRDAR, ADVOCATES)

AND

1 . SYED AMJAD HUSSAIN
S/O SYED AHMED HUSSAIN AND ORS
AGE. 46 YEARS,
OCC. BUSINESS,

2 . SYED IJEZ HUSSAIN
S/O SYED AHMED HUSSAIN
AGE. 42 YEARS,
OCC. BUSINESS,

3 . SYED ALTAF HUSSAIN
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S/O SYED AHMED HUSSAIN
AGE. 40 YEARS,
OCC. BUSINESS,

4 . SYED ASIF HUSSAIN
S/O SYED AHMED HUSSAIN
AGE. 38 YEARS,
OCC. BUSINESS,

5 . SABERA BEGUM
D/O SYED AHMED HUSSAIN
AGE. 48 YEARS,
OCC. HOUSEHOLD,

6 . MOHAMMEDI BEGUM
D/O SYED AHMED HUSSAIN
AGE. 45 YEARS,
OCC. HOUSEHOLD,

7 . SAJIDA BEGUM
D/O SYED AHMED HUSSAIN
AGE. 36 YEARS,
OCC. HOUSEHOLD,

8 . SALIMUNNISA BEGUM
SINCE DECEASED
THROUGH LRS (LRS ARE ALREADY ON RECORD)

9) ZAKIYA BEGUM
W/O SYED RAZAK HUSSAIN,
AGE. 46 YEARS,
OCC. HOUSEHOLD,

10) NAJMA BEGUM
D/O SYED RAZAK HUSSAIN
AGE. 38 YEARS,
OCC. HOUSEHOLD,

11) NASEEM BEGUM
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D/O SYED RAZAK HUSSAIN
AGE. 54 YEARS,
OCC. HOUSEHOLD,
ALL ARE R/O. GADIKHANA,
ROZA-B, KALABURAGI.

12) MOHD. SABBIR
S/O RAHMATULLA
AGE. 42 YEARS,
OCC. BUSINESS,
R/O. NEAR PEER BANGALI DARGA,
RING ROAD,
KALABURAGI.

13) UMAPATI
S/O NAGAPPA
AGE. 54 YEARS,
OCC. AGRICULTURE,
R/O. NANDOOR (K) VILLAGE,
TQ. AND DIST. KALABURAGI.

                                         ...RESPONDENTS

      THIS WRIT PETITION FILED UNDER ARTICLES 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED
19.08.2021 PASSED IN O.S. NO. 166/2014 BY THE PRINCIPAL
SENIOR CIVIL JUDGE AT KALABURAGI REJECTING THE I.A. NO.
33 FILED BY THE PETITIONER U/SEC. 43 OF EVIDENCE ACT AS
PER THE ANNEXURE-E; AND ETC.

    THIS PETITION IS COMING FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:-
                                     4




                             ORDER

Petitioner has assailed the Order dated 19th August, 2021

passed on IA.XXXIII in OS No.166 of 2014 by the Principal

Senior Civil Judge at Kalaburagi dismissing the application.

2. For the sake of convenience, the parties in this petition

are referred to with their status and rank before the trial Court.

3. Petitioner is the plaintiff in OS No.166 of 2014 before

the trial Court. The suit is filed seeking relief of declaration of

title and injunction. The plaintiff has filed IA No.XXXIII under

Section 43 of Evidence Act, requesting the Court to send Exhibit

P23, plaint in OS No.256 of 1994, plaint in OS No.37 of 1971

and vakalat filed by one Ahmed Hussain in OS No.288 of 1994

and OS No.37 of 1997 to compare the signature of late Syed

Ahmed Hussain on Exhibit P73. The trial Court dismissed the

said application and being aggrieved by the same, the petitioner

has presented this writ petition.

4. Sri Gopalakrishna B. Yadav, learned Counsel appearing

for the petitioner contended that the trial Court ought to have

referred the signature of late Syed Ahmed Hussain for expert

opinion to adjudicate the suit in the right perspective. He further

contended that the opinion of the handwriting expert is required

to discern the truth.

5. In the light of the submission made by the learned

counsel for the petitioner, I have carefully considered the

impugned order. Perusal of the same would indicate that the

trial Court, after summoning the entire file in OS No.256 of

1994, 37 of 1971 and vakalat filed in those suits by late Syed

Ahmed Hussain, are relevant in OS No.166 of 2014. The trial

Court, considering the fact that Exhibit P73 is only an agreement

though it is stated as Sale Deed, and same is an unregistered

document and therefore, has come to the conclusion that the

opinion of the handwriting expert is not required to adjudicate

the suit on merits. The finding recorded by the trial Court at

paragraphs 8 and 9 of the impugned judgment does not warrant

interference in this writ petition. It is also well established

principle that the jurisdiction of this Court to interfere with the

order impugned under Article 227 of the Constitution of India is

limited, unless the impugned order suffers from infirmity. On

perusal of the finding recorded by the trial Court, I am of the

view the trial Court is justified in rejecting IA.XXXIII.

In the result, petition stands dismissed.

Sd/-

JUDGE

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