WP21030-12-09-08-2012.Pdf

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE ON THE 9TH DAY OF AUGUST 2012 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH WRIT PETITION NO.21030 OF 2012(GM-CPC) AND WRIT PETITION NOS.27490-27491 OF 2012(GM-CPC) BETWEEN : RATANKUMAR KATTEMAR AGED ABOUT 70 YEARS S/O LATE NAGASWAMY DONGERKERI, MANGALORE. ...PETITIONER (BY SRI S R RAVIPRAKASH, ADVOCATE) AND : 1 SMT.C N PADMAVATHI MAJOR W/O UDAYAVARMA RAJA, MALALI KATTEMAR HOUSE, BADAGA ULLPADY VILLAGE, MANGALORE TALUK. 2 2 RAJENDRA MAJOR S/O M JAGATHPALAYYA RESIDING AT KELAGINA MANE, KONDE STREET, MOODABIDRE. 3 M VEERENDRA MAJOR S/O M JAGATHPALLAYYA RESIDING AT NO.122/B, GANGA REDDY STREET, EGMORE, CHENNAI - 8 4 VISHAL KEERTHI MAJOR S/O M JAGATHPALAYYA MANIPAL FINNCE, LIGHT HOUSE HILL, MANGALORE. 5 SMT KESARI MAJOR W/O RATHANARAJAYYA SRI PADMA NIVAS, 906, K R PURAM, HASSAN 6 SUNIL KEERTHI MAJOR S/O JAGATHAPALAYYA PANCHANN COMPLEX, OPP: KSRTC BUS STAND, BEJAI, MANGALORE 3 7 JWALA PRASAD MAJOR S/O JAGATHAPALAYYA PANCHAMI COMPLEX, OPP: KSRTC BUS STAND BEJAI MANGALORE. 8 NABHIRAJ MAJOR S/O JAGATHAPALAYYA PANCHAMI COMPLEX, OPP: KSRTC BUS STAND BEJAI MANGALORE. 9 PADMAPRASAD MAJOR S/O JAGATHAPALAYYA PANCHAMI COMPLEX, OPP: KSRTC BUS STAND BEJAI MANGALORE 10 SMT NIRMALA V RAJA MAJOR W/O LATE VIJAYA RAJ MOODABIDRI ARAMANE, MOODABIDRI. 11 KULADEEP MAJOR S/O VIJAYARAJ MOODABIDRI ARAMANE, MOODABIDRI 4 12 SMT ANITHA MAJOR W/O SURENDRA KUMAR DOOR NO.57, VITTAL MALLAYA ROAD, MOODABIDRI. 13 SMT USHA MAJOR W/O JAYAVEERA R/A HOSAMANE, NEAR THOUSAND PILLAR TEMPLE MOODABIDRI 14 SMT MAMATHA MAJOR W/O SUBHODH R/O BONDEL MANGALORE 15 SHWETHA MAJOR D/O JAYAVEER R/A HOSAMANE, NEAR THOUSAND PILLAR TEMPLE MOODABIDRI 16 ARAMANE VINOD KUMAR MAJOR S/O KATTEMAR GUMMANNA SHETTY ALANGAR MOODABIDRI. 5 17 SMT NIRMAL MAJOR D/O KATTEMAR GUMMANNA SHETTY ALANGAR MOODABIDRI. 18 SMT RAJKUMARI MAJOR D/O KATTEMAR GUMMANNA SHETTY ALANGAR MOODABIDRI. 19 MRS NAYANA KUMARI MAJOR W/O LATE NAGA KUMAR BALLALBAGH, MANGALORE. 20 ASHWIN MAJOR S/O LATE NAGA KUMAR R/A BALLAL BAGH MANGALORE – 3. 21 BHASKAR SHETTY MAJOR S/O LATE NAGA KUMAR ADVOCATE, MILAGRES MANSION HAMPANKATTA, MANGALORE. ...RESPONDENTS ****** 6 THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER DATED 26.8.2011 ON IA.NO.13, 14 AND 15 IN OS.NO.5/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), KARKALA, VIDE ANNEXURE-A TO THE WRIT PETITION. THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER The first respondent – plaintiff filed a suit for partition. During the pendency of the suit, the petitioner – defendant No.20 filed I.A.Nos.13, 14 & 15. The trial Court by the impugned order dismissed the same. Hence the present petitions. 2. The learned counsel for the petitioner contends that the impugned orders are bad in law and liable to be set aside. He further contends that the trial court has 7 unnecessarily gone into the relevancy of the documents produced. The documents are required for just and fair adjudication of the suit and hence, interference is called for. 3. I.A.No.13 has been filed under Section 151 of CPC to receive/accept the additional list of documents. I.A.No.14 has been filed under Order 16 Rule 1 & 2 read with Section 151 of CPC to summon the documents from the custody of the plaintiff to adduce further evidence. I.A.No.15 has been filed under Section 151 of CPC to summon the better particulars from the members of Kiriya Bhaga namely the defendants nos.1 to 14. A memo has been filed praying to allow him to give fresh publication for the notice of the general public of the suit. 4. While considering I.A.No.13, the trial Court was of the view that the genealogy sought to be produced, was 8 produced in O.S.No.68/1998 but it does not bear the signature of the person who gave the document. More so the relationship between the parties to the suit is not in dispute. Therefore, the genealogy that is sought to be produced is irrelevant and not the subject matter in issue. The second document is the affidavit of the grand mother in exhibits submitted to the Supreme Court in S.L.P.No.439/1955 showing the name of her husband, residence. There is no dispute about the name and residence of applicant’s grandfather. Therefore, the said document is also not relevant. Document no.3 is the souvenir of the silver jubilee which is also not relevant. Documents no.4, 5 and 6 are the letters received by Dharmasamrajaiah from Kattemar house. Those documents are also not relevant in deciding the subject matter in issue. Document no.7 is the original petition nos.89 and 127 of 1949 filed before the District Judge of 9 South Kanara by Dharmasamrajaiah. The matter covered therein is not the subject matter in the present suit and hence, it is not related. Similarly, documents no.8 to 15 are also not at all relevant to the subject matter in issue. It was further held that in a suit for partition, the defendants have set up a Will alleged to have been executed by Dharmasamrajaiah in favour of Jagathpala. Similarly, the partition deed dated 28.2.1961, Karar dated 21.3.1984 and gift deed dated 23.8.1960 which are the material documents produced by the parties. These are the documents upon which the decision of the suit is relied. Therefore, the proposed documents sought to be produced is not at all relevant to decide the subject matter in issue nor has he explained the relevancy of the said documents. Hence, the application I.A.No.13 seeking permission to produce the list of documents is rejected, which is just and proper. 10 5. The trial Court while considering I.A.No.14 was of the view that the applicant has sought to produce the snap photo from the custody of the plaintiff. It is stated therein that in the year 1952, he was staying with his grand father at Chouter Aramane in Moodbidri studying at Jain High School and a group photo was snapped at Aramane Courtyard with his grandfather while election was over along with rest of people who worked in the election. The said snap photo is in the custody of the plaintiff which is essential to give his further evidence. But, how it is relevant for the decision of the subject matter in issue is not explained. Hence, I.A.No.14 was rejected. 6. I.A.No.15 was filed to summon better particulars from the members of ‘Kiriya Bhaga’ namely defendants no.1 to 14. The trial Court rejected the application on the 11 ground that the application was vague and no such specific particulars are contained seeking better particulars from the defendants. Moreover ‘A’, ‘B’, ‘C’ ‘D’ schedule properties contain numerous items. RTCs are also produced which discloses persons who have purchased property from the defendants. He could have obtained certified copies of the said documents from the concerned Sub-Register’s office. In the absence of such documents, the application to summon the details and particulars from defendants no.1 to 14 cannot be allowed. Moreso the defendants did not admit that they belong to Kiriya Bhaga. Hence, the trial Court rejected IA No.15 also, which is just and proper and does not call for interference. 7. Even so far as the memo is concerned, the same was rejected by the trial Court on the ground that the same is not acceptable. It held that if any of the parties to the 12 suit alienates or transfers, the interest in the property to any third party, it amounts to lis pendens. The said alienations or transfers are subject to decision of the suit. Therefore, the question of giving of permission to the applicant for fresh news publication for the notice of the general public about the facts is not at all necessary and rejected the memo. 8. The detailed reasons assigned by the trial Court in rejecting I.A.Nos.13 to 15 are just and proper and does not call for any interference. On considering the reasons assigned by the trial Court, I ‘am of the considered view that each one of the applications have been considered by the trial Court and a detailed order has been passed with regard to the contentions advanced therein. The reasons assigned by the trial Court are in tune with the facts and circumstances of the case. The prayer sought for has no 13 nexus with the subject matter of the suit. For the aforesaid reasons, the Writ Petitions being devoid of merits are dismissed. Sd/- JUDGE PRS .

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