Karnataka High Court
Smt.Sarja W/O Late Prabhudas Chavan vs Sunil And Ors on 29 May, 2024
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NC: 2024:KHC-K:3395
WP No. 205703 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO. 205703 OF 2019 (GM-CPC)
BETWEEN:
SMT.SIRAJ
W/O LATE PRABHUDAS CHAVAN
AGED ABOUT 70 YEARS, OCC: RETIRED NURSE,
R/O VIDYA NAGAR COLONY,
NEAR BALAJI MANGAL KARYALAYA,
SANGLI ROAD, MIRAJ,
TQ: MIRAJ, DIST: SANGLI (MAHARASTRA).
...PETITIONER
(BY SRI. RAVI B. PATIL, ADVOCATE)
AND:
1. SUNIL,
S/O LATE TULSIRAM CHAVAN,
Digitally signed AGED ABOUT 53 YEARS,
by RENUKA OCC: GOVT. SERVANT.
Location: High
Court Of 2. SMT. KAMALA W/O GOVIND PANDHARE
Karnataka
AGED ABOUT 74 YEARS,
OCC: HOUSE HOLD,
BOTH ARE RESIDENT OF KAMAL NAGAR,
TQ: AURAD-B, DIST: BIDAR-585326.
3. ANUPAMA W/O BHANUDAS KHATGAONKAR
AGED ABOUT 69 YEARS, OCC: HOUSE HOLD,
R/O RANDYAL, TQ: AURAD-B,
DIST: BIDAR-585326.
4. SMT. RUDHA W/O JEORGE STEPHEN
AGED ABOUT 40 YEARS, OCC:SERVICE
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WP No. 205703 of 2019
5. SMT.VIPOLATHA W/O KAMLESH LOKHANDE
AGED ABOUT 38 YEARS, OCC:SERVICE,
6. PRASHANTH S/O LATE PRABHUDAS CHAVAN
AGED ABOUT 34 YEARS, OCC:SERVICE,
RESPONDENT 4 TO 6 ARE
R/O VIDYA NAGAR COLONY,
NEAR BALAJI MANGAL KARYALAYA
SANGLI ROAD, MIRAJ, TQ: MIRAJ,
DIST: SANGALI (MAHARASTRA)
...RESPONDENTS
(BY SRI MAHANTESH PATIL, ADVOCATE FOR R1;
V/O DATED 06/01/2020 NOTICE TO R4 TO R6
ARE DISPENSED WITH;
V/O DATED 27/5/2024 NOTICE TO R2 AND R3
ARE DISPENSED WITH)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT OF
CERTIORARI ANY OTHER WRIT OR DIRECTION TO QUASH THE
IMPUGNED ORDER DATED-05.12.2019 PASSED ON I.A.NO.10
FILED UNDER ORDER 8, RULE 1(A) OF CODE OF CIVIL
PROCEDURE IN O.S.NO.11/2013 PASSED BY COURT OF CIVIL
JUDGE AND JMFC AT AURAD-B AS AT ANNEXURE-J, AND
CONSEQUENTIALLY TO SET ASIDE THE ORDER PASSED ON
I.A.NO.11 AND 12 PASSED BY THE COURT BELOW AND TO
ALLOW THE SAID APPLICATIONS THEREBY PERMITTING THE
PETITIONER TO LEAD FURTHER EVIDENCE BY RELYING ON THE
DOCUMENTS.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The defendant No.1 in O.S.No.11/2013 on the file of the
Civil Judge and JMFC, Aurad - B (henceforth referred to as
'Trial Court') has filed this petition challenging an order dated
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05.12.2019 by which, an application (I.A.No.X) filed by her
under Order VIII Rule 1A read with Section 151 of CPC, was
rejected. She has also challenged the order dated 05.12.2019
passed on I.A.Nos.XI and XII, by which the said applications
were rejected.
2. The suit in O.S.No.11/2013 was filed for partition
and separate possession of the plaintiffs' share in the suit
schedule property. The plaintiffs claimed that the suit property
was owned and possessed by their father and upon his death,
they and the husband of the defendant No.1 as well as father of
the defendant Nos.2 to 4 were entitled to an equal share. They
claimed that their father had sold the cattle belonging to the
family and out of the proceeds, had purchased the suit property
in the name of the husband of the defendant No.1. They
therefore, claimed that they were entitled to an equal share in
the suit property as the husband of the defendant No.1 was
only an ostensible owner of the property.
3. The defendant No.1 contested the suit and claimed
that her husband had independent source of income and also
claimed that she was beneficially employed and was
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contributing her income to her husband to purchase the suit
property.
4. Based on these contentions, the Trial Court framed
issues and set down the case for trial. After the evidence of the
parties was adduced, the defendant No.1 filed an application
(I.A.No.X) under Order VIII Rule 1A read with Section 151 of
CPC to place on record the documents to indicate that she was
also beneficially employed. She also filed application
(I.A.No.XI) to reopen the evidence of the defendants and
application (I.A.No.XII) to recall DW.1 for further chief
examination.
5. This application was contested by the plaintiffs, who
claimed that the defendant No.1 ought to have produced the
documents at the earliest point in time and that the reason
mentioned in the application to produce the documents was not
genuine. The application filed by the defendant No.1 to recall
DW.1 for further examination was also contested by the
plaintiffs, who contended that the defendant No.1 had produced
those documents earlier but collected them back but failed to
produce the same at the relevant point in time and therefore,
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there was no reason as to why she should be granted an
opportunity to produce these documents.
6. Based on these contentions, the Trial Court in terms
of the impugned order rejected the application filed by the
defendant No.1 to produce the documents and the application
to reopen the evidence of defendants as well as the application
filed to recall DW.1 for further chief examination.
7. Being aggrieved by the same, the defendant No.1
has filed this petition.
8. The learned counsel for the defendant No.1
contended that the substance of the defence of the defendant
No.1 was that the suit property was not ostensibly held by her
husband but he was the real owner of the suit property as he
had income from his employment and also that she was
contributing her income to her husband and had helped him in
purchasing the property in question. Learned counsel
contended that the defendant No.1 had specifically contended
so in the written statement and therefore, the defendant No.1
must be given an opportunity to establish her defence by
allowing her to produce documents and mark them in evidence.
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9. Per contra, the learned counsel for the plaintiffs
contended that the documents on which the defendant No.1
intended to rely upon were earlier produced before the Court
but the defendant No.1 took it back to but failed to produce
them at the time of her chief examination. He further contends
that the defendant No.1 did not establish any bonafide reasons
for not producing these documents at the time of her evidence.
Therefore, no indulgence can be shown to the defendant No.1
to produce these documents. Hence, he contends that the
order passed by the Trial Court was just and proper and does
not warrant interference.
10. I have considered the submissions made by the
learned counsel for the defendant No.1 and the learned counsel
for the plaintiffs.
11. The purpose of any judicial exercise is to arrive at
the truth. Therefore, the parties to a litigation have to be
provided ample opportunity to establish their case beyond
doubt. In the case on hand, the plaintiffs claimed that the suit
property was held ostensibly by their father in the name of the
husband of defendant No.1. They contended that the
consideration for purchase of the suit property was arranged by
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their father, who sold the cattle belonging to the family and
purchased the property in the name of the husband of the
defendant No.1. Per contra, the defendant No.1 contended to
the contrary and claimed that her husband purchased the suit
property out of his own funds and that she also helped him in
some measure. Therefore, the defendant No.1 ought to have
been provided with an opportunity to adduce all the available
evidence to establish her claim that she had also contributed to
purchase the suit property in the name of her husband. No
doubt the application was filed at a belated stage but yet, the
Trial Court lost sight of the fact that not allowing the defendant
No.1 to produce these documents would throw up a ground to
challenge any decree that may be passed. Therefore, in order
to liquidate the ground that the defendant No.1 may raise in an
appeal that may be filed against the judgment that may be
passed in the suit, the Trial Court must have exercised
jurisdiction by permitting the defendant No.1 to produce the
documents and also to lead further evidence by recalling the
stage of the case. This could have been done by placing the
defendant No.1 on terms for the delay caused.
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12. In that view of the matter, this petition is allowed.
The impugned orders dated 05.12.2019 passed by the Trial
Court rejecting I.A.Nos.X, XI and XII are set aside and the
applications (I.A.Nos.X, XI and XII) filed by the defendant No.1
are allowed subject to payment of cost of Rs.5,000/- (Rupees
Five Thousand only) payable by the defendant No.1 to the
plaintiffs before the Trial Court on the next date of hearing.
13. Since the suit is filed in the year 2013, the Trial
Court is requested to expedite the suit at the earliest in
accordance with the Karnataka (Case Flow Management in
Subordinate Courts) Rules, 2005.
14. It is made clear that the defendant No.1 shall lead
evidence on the next fixed before the Trial Court without taking
any further adjournment.
Sd/-
JUDGE
PMR
CT:SI
