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2023 Supreme(Online)(KAR) 15778
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WP No. 100113 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 100113/2023 (GM-CPC)
BETWEEN:
BHARATKUMAR S/O INDURAO RANGOLE,
AGE: 72 YEARS, OCC.: AGRICULTURE,
R/O. AKKOL-591211 TQ. CHIKKODI,
DIST.BELAGAVI.
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PETITIONER
(BY SRI. SHRIHARSH A NEELOPANT, ADVOCATE)
AND:
1.
SHARADKUMAR,
S/O INDURAO RANGOLE,
AGE: 79 YEARS,
OCC.: AGRICULTURE & PRIVATE SERVICE,
R/O. AKKOL-591211 TQ. CHIKKODI,
DIST.BELAGAVI.
2.
KERABA BHAVU KUNAKEKAR,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O MUGALI-416218, TQ: KAGAL,
DIST.: KOLHAPUR, MAHARASHTRA STATE.
3.
VIPIN S/O ASHOK KHAVALE,
AGE: 44 YEARS, OCC.: AGRICULTURE,
R/O. AKKOL-591211 TQ. CHIKKODI,
DIST.BELAGAVI.
4.
AJITKUMAR S/O INDURAO RANGOLE,
AGE: 81 YEARS, OCC.: RETIRED,
R/O CTS NO. 2392, PLOT NO. 3,
AMIT APARTMENT, KACHERI GALLI,
SHAHAPUR, BELAGAVI-590 003,
TQ/ DIST.: BELAGAVI.
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: High
Court of Karnataka,
Dharwad
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WP No. 100113 of 2023
5.
SMT. NANDA ABHAYKUMAR RANGOLE,
AGE: 79 YEARS, OCC.: HOUSEHOLD WORK,
R/O HOUSE NO. 28, WAGOLE GALLI,
KHANAPUR-591 302, TQ: KHANAPUR,
DIST.: BELAGAVI.
6.
SUDARSHAN ABHAYKUMAR RANGOLE,
AGE: 44 YEARS, OCC.: HOUSEHOLD WORK,
R/O HOUSE NO. 28, WAGOLE GALLI,
KHANAPUR-591 302, TQ: KHANAPUR,
DIST.: BELAGAVI.
7.
SMT. SUCHITRA SANJAY KULKARNI,
AGE: 46 YEARS, OCC.: HOUSEHOLD WORK,
R/O NEAR BASTI, SHAZI GALLI CORNER,
BELAGAVI-590 003, TQ/ DIST.: BELAGAVI.
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RESPONDENTS
(BY SRI. RAMESH I. ZIRALI, ADVOCATE FOR R1,
NOTICE TO R2, R3, R5 & R6 IS SERVED,
NOTICE TO R4 & R7 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 02.01.2023 PASSED BY THE SENIOR
CIVIL JUDGE AND JMFC, NIPANI IN O.S.NO.124/2017 (OLD
O.S.NO.90/2011) DISMISSING I.A.NO.XXIII, XXIV AND XXV FILED BY
THE PETITIONER SEEKING REOPENING OF THE EVIDENCE OF
DW-1 FOR CROSS EXAMINATION AS PER ANNEXURE-A & ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING ORDER.
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WP No. 100113 of 2023
This writ petition is directed against the impugned order
dated 02.01.2023 passed on I.A. Nos. 23, 24 and 25 in O.S. No.
124/2017 (old No. 90/2011) on the file of the Senior Civil Judge and
JMFC, Nipani, whereby the said applications filed by the petitioner-
defendant No.1 under Order XVIII Rule 17 CPC, Sec. 151 CPC
and Sec. 151 CPC respectively seeking reopening of the case,
recalling of DW1 for further examination-in-chief and for permission
to produce documents, was rejected by the trial Court.
I have heard learned counsel for the petitioner and the
learned counsel for respondent No.1 and perused the material on
record including the impugned order. Though notice of this petition
was served on the respondents No. 2, 3, 5 and 6, they have
remained unrepresented. Notice to respondents No. 4 and 7 is
dispensed with at the request of the petitioner.
Learned counsel for the respondent No.1 not opposed the
petition.
A perusal of the material on record will indicate that the
respondent No.1-plaintiff instituted the aforesaid suit for partition
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and separate possession of his alleged share in the suit schedule
properties. The petitioner is arrayed as defendant no.1 in the said
suit and he is contesting the same while the respondents No.2 to 7
are arrayed as the remaining defendants. After the respondent
No.1-plaintiff adduced oral and documentary evidence, the
petitioner examined himself as DW1 and was examined by the
respondents. Subsequently, the petitioner filed the instant
applications, I.A. Nos. 23 to 25 seeking reopening of the case,
recalling of DW1 and for permission to produce documents and the
said applications having been opposed by the respondent No.1-
plaintiff, the trial Court proceeded to pass the impugned order
rejecting the said applications aggrieved by which the petitioner is
before this Court by way of the present writ petition.
A perusal of the impugned order will indicate that the trial
Court has adopted a hyper-technical approach in not permitting the
petitioner to adduce further evidence without appreciating that the
delay on the part of the petitioner in seeking indulgence in the
matter was due to bonafide reasons, unavoidable circumstances
and sufficient cause. By adopting a justice oriented approach and
in order to provide one more opportunity to the petitioner, I deem it
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just and proper to set aside the impugned order and allow the
application filed by the petitioner.
For the foregoing reasons, I pass the following order.
ORDER
i)
Writ Petition is allowed;
ii)
Impugned order dated 02.01.2023 is set aside;
iii)
Consequently, applications I.A. Nos. 25, 26 and 27 filed by
the petitioner-defendant No.1 under Order XVIII Rule 17 CPC, Sec.
151 CPC and Sec. 151 CPC respectively seeking reopening of the
case, recalling of DW1 for further examination-in-chief and for
permission to produce documents, are allowed;
SD/-
JUDGE
BVV
List No.: 1 Sl No.: 59
