Full Judgment
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.887 OF 2024 (GM-CPC) BETWEEN:
1. SMT. JAYALAKSHMI W/O LATE JAYARAM, AGED ABOUT 51 YEARS,
2. SRI. SURESH J S/O LATE JAYARAM, AGED ABOUT 34 YEARS,
3. SRI. KIRAN J S/O LATE JAYARAM, AGED ABOUT 32 YEARS,
4. SMT. CHANDRAKALA J
D/O LATE JAYARAM, AGED ABOUT 33 YEARS, ALL ARE R/AT NO.404 (403), 1ST MAIN ROAD, CHANNAPPA GARDEN, (EARLIER KUPPANNA GARDEN), POORNAPURA VILLAGE, KASABA HOBLI, GOKULA POST, Digitally signed by BENGALURU-560 054. VANDANA S …PETITIONERS Location: High Court of Karnataka (BY SRI. C SHANKAR REDDY, ADVOCATE) AND:
1. SMT. SUMITHRA W/O LATE P RAMESH, AGED ABOUT 47 YEARS,
2. KUM. THANUSHREE D/O LATE P RAMESH, AGED ABOUT 27 YEARS,
3. SRI. MANOJ S/O LATE P RAMESH, AGED ABOUT 21 YEARS, -2- ALL ARE R/AT NO.75/3, ’NAVEEN NILAYA’, 4TH CROSS, 8TH MAIN, SBM COLONY, ’BRINDAVAN GARDEN’, MATHIKERE, BENGALURU-560 054.
4. SMT. GIRIJAMMA D/O LATE PAPANNA, AGED ABOUT 48 YEARS,
5. SRI. SUDHESHA S/O LATE PAPANNA, AGED ABOUT 47 YEARS,
6. SMT. LAKSHMI D/O LATE PAPANNA, AGED ABOUT 45 YEARS,
7. SRI. RAMA S/O LATE PAPANNA, AGED ABOUT 43 YEARS, RESPONDENTS 1 TO 7 ARE R/AT SY NO.27, KUPPANNA’ S GARDEN, POORNAPURA VILLAGE, KASABA HOBLI, BENGALURU NORTH TALUK-560 054.
8. SRI.T. NARAYANA AGED ABOUT 58 YEARS, S/O THIPPAIAH, R/AT KODIGEHALLI, YELAHANKA HOBLI, BENGALURU NORTH TALUK-560054 (SUIT IS ABATED AS PER ORDER DATED 20.03.2013)
9. SRI. MUNIHANUMAIAH MAJOR IN AGE, S/O PERUMAPPA WORKING AT INDIAN INSTITUTE OF SCIENCE, MALLESHWARAM, BENGALURU-560003 (SUIT IS ABATED AS PER ORDER DATED 20.03.2013) …RESPONDENTS (BY SRI. KRISHNAMURTHY FOR SRI. S.F. GOWTHAM CHAND, ADVOCATE) -3- THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD 02.01.2024 AT ANNEXURE-G MADE IN O.S.1120/1985 ON THE FILE OF THE HON’BLE 33RD ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-33) ON I.A.NO.24 ALLOW THE SAID APPLICATION AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this petition, petitioner has challenged the impugned order
at Annexures - K and G dated 24.05.2023 and 02.01.2024 passed in O.S.No.1120/1985 by the XXXIII Addl. City Civil & Sessions Judge, Bengaluru, whereby the application filed by the petitioners under Order 6 Rule 17 CPC for amendment of the plaint and I.A.No.24 filed under Section 26 Rule 10(A) of CPC to refer the admitted LTMs of the deceased plaintiff No.1 - Munivenkatamma with her disputed LTMs to Finger Print Expert / Court Commissioner were rejected by the Trial Court.
2. Heard learned counsel for the petitioners and learned counsel for the respondents and perused the material on record. -4-
3. The material on record discloses that initially suit for
partition and separate possession was filed by plaintiff No.1 - Munivenkatamma and plaintiff No.2 - Jayaram in the year 1985 for partition and separate possession of all their shares in the suit schedule immovable properties. In the said suit, the respondents who were arrayed as defendants are contesting the suit. In the first instance, the said suit came to be dismissed by the Trial Court vide the judgment and decree dated 12.11.2010 which was challenged in RFA No.829/2011, which was allowed by this Court vide
judgment and decree dated 13.09.2022 and the matter was
remitted back to the Trial Court for reconsideration, by holding as under: “14. In the result, I pass the following:
ORDER
(i) The appeal is hereby allowed.
(ii) The impugned judgment and decree dated 12.11.2010 passed in O.S.No.1120/1985 by the XXXIII Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside.
(iii) The impugned order on I.A.Nos.15 and 16
dated 19.10.2010 as well as the impugned order
on I.A.No.17 dated 27.10.2010 passed by the trial Court are hereby set aside and -5- consequently, the said applications stand allowed.
(iv) The matter is remitted back to the trial Court for reconsideration afresh in accordance with law.
(v) The parties undertake to appear before the trial
Court on 13.10.2022 without awaiting further notice from the trial Court, which is directed to dispose of the suit as expeditiously as possible and preferably, within a period of four months from the date of receipt of a copy of this order.
(vi) The trial Court is directed to procure the original
thumb impression register/book marked as Ex.P-10 from the office of the jurisdictional Sub- Registrar as expeditiously as possible and in terms of the order dated 21.04.2010 passed by the trial Court.
(vii) Liberty is reserved to adduce additional oral and documentary evidence in support of their respective claim. (viii) All rival contentions are kept open and no opinion is expressed on the same.”
4. Subsequently, petitioners’ filed an application under
Order 6 Rule 17 CPC which was dismissed by the Trial Court vide
impugned order dated 24.05.2023. Learned counsel for the petitioners’ on instructions submits that the petitioners would withdraw the challenge to the impugned order dated 24.05.2023 in the present petition and restrict the present petition only to the -6- impugned order dated 02.01.2024 passed on I.A.No.24 by the Trial Court.
5. The said submission is placed on record.
6. Subsequent to remand by this Court as stated supra,
the petitioners filed I.A.No.24 under Order 26 Rule 10(A) CPC to refer the admitted LTMs of the deceased plaintiff No.1 - Munivenkatamma contained in the plaint, vakalathnama and the records pertaining to LRF 176/1974-75 marked as exhibit P-73 with her disputed LTMs contained in the Thumb Impression Register marked as exhibit P-72 at P-72(a) to a Court Commissioner / Finger Print Expert to compare her admitted LTMs with her disputed LTMs and to submit a report in this regard. The said application having been opposed by the respondents, the Trial Court proceeded to pass the impugned order rejecting the application on the ground that the admitted LTMs of plaintiff No.1 - Munivenkatamma were not available for comparison with her admitted LTMs in the Thumb Impression Register and that the material available on record was sufficient for adjudication of the suit. In this context, it is relevant to state that the alleged registered Will dated 01.03.1985 said to have been executed by -7- Munivenkatamma, plaintiff No.1 in favour of plaintiff No.2 having been specifically disputed and denied by the respondents - defendants coupled with the fact that the original Will not being available on record and the disputed LTMs of Munivenkatamma contained in the Thumb Impression Register having been marked as exhibit P-72 at P-72(a), it was necessary to appoint a Court Commissioner / Finger Print Expert to compare the said disputed LTMs with the admitted LTMs of Munivenkatamma contained in the plaint, vakalathnama and the records pertaining to LRF 176/1974- 75 marked as exhibit P-73 for the purpose of effective and proper adjudication of the said issue / question that arose for consideration between the parties. In any event, no prejudice can be said to have caused to the respondents - defendants if the admitted LTMs of plaintiff No.1 - Munivenkatamma as stated supra are referred to a Finger Print Expert for comparison with her disputed LTMs especially when both parties would be entitled to file their objections to the Report of the Court Commissioner / Finger Print Expert and examine / cross-examine him, if they so desire.
7. Under these circumstances, I am of the view that the impugned order passed by the Trial Court rejecting I.A.No.24 has -8- occasioned failure of justice warranting interference by this Court in
the present petition and consequently, the impugned order
deserves to be set aside and the said application deserves to be allowed.
8. In the result, I pass the following:
ORDER
(i) The petition is hereby allowed-in-part.
(ii) In view of the submissions made on instructions
by learned counsel for the petitioners, the present petition insofar as it relates to challenging the impugned order at Annexure - K dated 24.05.2023 rejecting the application filed by the petitioners under Order 6 Rule 17 CPC stands dismissed as withdrawn.
(iii) The impugned order at Annexure - G dated
02.01.2024 passed on I.A.No.24 in O.S.No.1120/1985 by the XXXIII Addl. City Civil & Sessions Judge, Bengaluru City (CCH33) is hereby set aside and I.A.No.24 stands allowed.
(iv) The Trial Court is directed to refer the admitted
LTMs of plaintiff No.1 - Munivenkatamma contained in the -9- plaint, vakalathname and the records pertaining to LRF disputed LTMs contained in the Thumb Impression Register marked as exhibit P-72 at P-72(a) to a Court Commissioner / Finger Print Expert and to submit a report in this regard.
(v) Both parties agree that the Trial Court may refer
the aforesaid documents to the Court Commissioner / Finger Print Expert / Truth Labs, N-101/A, 1st Floor, Manipal Centre, Dickenson Road Bengaluru - 560042 and obtain a report in this regard as expeditiously as possible.
(vi) Liberty is reserved in favour of the parties to submit their memos of instructions to the Court Commissioner.
(vii) Liberty is also reserved in favour of the parties to
file objections to the Commissioner’s Report and examine / cross-examine him, if occasion so arises. (viii) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same. - 10 -
(ix) The Trial Court is directed to secure the report from the Court Commissioner within a period of two months from the date of receipt of a copy of this order. SD/- JUDGE SV List No.: 3 Sl No.: 5