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2015 DIGILAW 1351 (KAR)

RAVI @ RAVINDRA S/O VENKARADDI BENNALLI v. LAXMAVVA W/O SUBHAS RADDI NERAGAL

2015-12-15

R.S.CHAUHAN

body2015
ORDER : The petitioner is aggrieved by the order dated 18/11/2015 passed by the Civil Judge and J.M.F.C. Yalburga, whereby the learned Civil Judge has allowed an application filed by the respondent under Order 16 Rule 1 of CPC. 2. Briefly, the facts of the case are that one Smt. Laxmavva, the plaintiff-respondent No.1 filed a suit for partition and separate possession. In the suit she had claimed that she has a right over 1/3rd share in the suit property, as property belongs to a joint Hindu Family. According to the plaintiff-respondent No.1, one Channappa was the owner of the suit property. He had three children namely, Venkareddy, plaintiff-Laxmavva and Timmappa respondent No.2 before this Court. She further claims that respondent Nos.3 and 4, Smt. Sumitravva and Smt. Shoba, were the legal representatives of her brother Venkareddy, who has expired. In the plaint, she further claims that the plaintiff and defendants constituted a Hindu Joint Family. Since the suit properties are ancestral properties, since there was difference of opinion between the parties, when the plaintiff demanded her share and the defendants refused to partition the property, she has no option, but to file the civil suit. 3. The defendants filed their written statements; they specifically denied the fact that the plaintiff-Laxmavva was the daughter of Channappa. They further claimed that they did not constitute a joint Hindu family along with the plaintiff. According to them Channappa had died on 13/9/1988. Therefore, Timmappa the son of Channappa, and respondent Nos.3 and 4 as the legal heirs of Venkareddy, have succeeded to the property. They further claim that after Channappa died there was rift between the Channappa’s wife, and their two sons. Therefore, a partition had taken place on 24/7/2000. 4. The plaintiff examined herself as PW-1. Subsequently, she filed an application, namely IA No. 16 under Order 16 Rule 1 CPC on 21/2/2015. She furnished a list of witnesses with the said application; she wanted to examine three persons witnesses. The said application was allowed by the learned Trial Court. However, out of three witnesses only one witness namely, Hanumanthareddy, filed his examination-in-chief by way of affidavit. He was subsequently examined as PW-2. 5. After examination of PW-2, the plaintiff again filed another interlocutory application, namely IA No.7 under Order 16 Rule 1 CPC on 5/6/2015. She again furnished the list of witnesses. She wanted to examine one more witness. However, out of three witnesses only one witness namely, Hanumanthareddy, filed his examination-in-chief by way of affidavit. He was subsequently examined as PW-2. 5. After examination of PW-2, the plaintiff again filed another interlocutory application, namely IA No.7 under Order 16 Rule 1 CPC on 5/6/2015. She again furnished the list of witnesses. She wanted to examine one more witness. The said application was allowed by the learned trial Court on 14/7/2015. This witness, as P.W.3, produced an affidavit dated 5/6/2015, by way of examination-in-chief. However, when this witness was subjected to the cross-examination, he did not support the case of the plaintiff. 6. After the examination of PW-3, the plaintiff again submitted an application, namely IA No. 8 under Order 16 Rule 1 CPC on 16/10/2015. According to this application, the plaintiff still wanted to examine two more witnesses. The said application, although objected to by the petitioner, was allowed by the order dated 18/11/2015. 7. Consequently, one of the witnesses namely, Pakkappa was also examined as PW-4. He has filed his examination-in-chief by way of affidavit dated 15/7/2015. Hence, this petition before this Court. 8. The learned counsel for the petitioner has pleaded that the plaintiff had thrice filed applications under Order 16 rule 1 CPC and thrice the applications were allowed. She was permitted to examine different witnesses repeatedly. But, this process has to end. Secondly, while allowing the application IA No.7 and IA No.8 and while examining the witnesses, interestingly their affidavits always pre-date the order by which they were permitted to be examined as witnesses. Thus, the conduct of the plaintiff is suspect. Lastly, the plaintiff is taking the Court out of a ride by examining different witnesses at different times. That she is taking the Court out for a ride is apparent from the fact that the applications were identical, and orders passed by the Court are identical. Thus, the order dated 18/11/2011 deserves to be interfered with. 9. Heard the learned counsel for the parties and perused the impugned order. 10. Needless to say, a litigant has to be given a full opportunity to establish his/her case. As the plaintiff, it is the duty of the respondent No.1 to establish her case. Since her very status as family member has been denied, if the plaintiff is prevented from establishing her case, it may even jeopardise her social status. 10. Needless to say, a litigant has to be given a full opportunity to establish his/her case. As the plaintiff, it is the duty of the respondent No.1 to establish her case. Since her very status as family member has been denied, if the plaintiff is prevented from establishing her case, it may even jeopardise her social status. Thus, even if the plaintiff has filed applications repeatedly for calling certain persons as her witnesses and even if the said application has been allowed, no illegality is being committed by the Court. 11. Although the learned counsel may be justified at this stage, to claim that the affidavit produced by the witnesses appears to be pre-dated to the date of passing of the order by the learned trial Court, but, the said contention may only cause a shadow of doubt on the trustworthiness of the witness. But, the fact that the affidavit may be pre-dated would not deny the right of the plaintiff-respondent from examining these witnesses on her behalf. 12. In her application, she has clearly mentioned the fact that the witnesses are being tampered with by the defendants: while some of the witnesses did not appear before the Court, Mallappa, PW-3 has not supported her case in his cross-examination. Considering the fact that there is possibility that the witnesses may be tampered with, an ample opportunity has to be given to the plaintiff-respondent to establish her case through witnesses in whom she has full faith. 13. In compliance of the order dated 18/11/2015 already Pakkappa has been examined as PW-4. Thus, part of the order has already been impleaded. Therefore, no fruitful purpose would be served by upsetting the order dated 18/11/2015. 14. Moreover, even if Gavisiddayya who is yet to be examined as PW-5, is produced and examined, no prejudice would be caused to the petitioner for the petitioner would have ample opportunity to cross-examine and demolish the testimony of PW-5. 15. It is indeed trite to state that the litigant must leave the Court, with the feeling that justice has not only be done to her, but appears to have been done to her cause. Thus, the learned trial Court was justified in giving ample opportunity to the respondent No.1 to establish her case through witnesses of her choice. 16. 15. It is indeed trite to state that the litigant must leave the Court, with the feeling that justice has not only be done to her, but appears to have been done to her cause. Thus, the learned trial Court was justified in giving ample opportunity to the respondent No.1 to establish her case through witnesses of her choice. 16. In case, the learned trial Court comes to a conclusion, in future, that these witnesses are untrustworthy, it is free to express its opinion while assessing the evidence produced by the respondent. But, merely because the respondent wished to produce certain witnesses, the trial Court cannot conclude, at the very threshold, that the witnesses are untrustworthy or unreliable. 17. For the reasons stated above, this Court does not find any illegality or perversity in the present petition. It is, hereby, dismissed.