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Karnataka High Court · body

2017 DIGILAW 610 (KAR)

M. v. Tejashri VS Nagendra M. N.

2017-03-17

B.VEERAPPA

body2017
ORDER : B. Veerappa, J. 1. The legal representatives of the 3rd defendant in O.S. No.625/2011 filed the present writ petition against the order dated 18.7.2016 rejecting the memo for issuance of summons. 2. The plaintiffs/Respondent Nos.1 and 2 filed O.S. No.625/2011 for partition and separate possession of the suit schedule properties contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and therefore, they are entitled to the share in the said properties etc. 3. The defendant Nos.1 and 3 filed the written statement denying the plaint averments and contended that the suit schedule properties are the self acquired properties of the 1st defendant, the grand-father of the plaintiff and the 1st defendant has executed a registered Will in respect of the suit schedule properties in favour of the 3rd defendant. Therefore, they sought for dismissal of the suit. 4. When the matter was posted for defendant's evidence, defendant Nos.3(b) & 3(c) filed an application under Order 16, Rules 1 & 2 r/w Section 151 of Code of Civil Procedure, 1908 to condone the delay in filing the witness list. It is the case of defendant Nos.3(b) & 3(c) that the deceased defendant No.1' "Maribasavaiah had executed a Will in respect of the suit schedule properties in favour of father of the defendant Nos.3 (b) & 3(c) and the said Will is already marked as Exhibit and the witness in the Will and the scribe of the Will have to be examined to prove the said Will. It is further contended that one of the witness Ningegowda s/o Kenchegowda died in the year 2010 leaving behind his son B. N. Satish. The scribe of the above said Will M.S. Srinivasa Rao has also died in the year 1992 leaving behind his son Sanjeevaiah. One of the witness Kempegowda s/o Honnegowda, Hosahalli village is only living. Therefore, B.N. Satish s/o late Ningegowda, Sanjeevaiah s/o late M.S. Srinivas Rao and Kempegowda s/o Honnegowda are the necessary witnesses to give evidence to prove the Will. It is further contended that there is delay in searching the above witnesses and giving evidence list before the Court and the delay is not intentional. The said application was allowed. 5. Thereafter the counsel for the defendant Nos.3(b) & 3(c) filed process Memo on 21.6.2016 to issue summons to the witnesses in the Witness list. It is further contended that there is delay in searching the above witnesses and giving evidence list before the Court and the delay is not intentional. The said application was allowed. 5. Thereafter the counsel for the defendant Nos.3(b) & 3(c) filed process Memo on 21.6.2016 to issue summons to the witnesses in the Witness list. The said memo was objected by the plaintiffs on the ground that the witnesses are not parties to the suit and they are not official witnesses and therefore, defendant Nos.3(b) & (c) are not entitled to the prayer sought for in the memo. Moreover, the burden of proving the alleged Will is not on them. If they want to prove, they can bring the witnesses directly before the Court. Hence the prayer for issuance of witness summons has to be rejected. 6. The trial Court by the impugned order rejected the said memo on the ground that no material is produced before the Court to show that the witnesses have refused to appear before the Court when a request is made to them to give evidence before the Court to prove the Will. 7. I have heard the learned counsel for the parties to the lis. 8. Sri. Pramod R. learned advocate for the petitioners/defendant Nos.3(b) & (c) fairly submits that already one witness was examined before the Court and cross-examination was done by the other side. Two other witnesses Kempegowda and B. N. Satish are not appearing before the Court in spite of the request made by the plaintiffs. Therefore he sought to issue summons to the said witnesses as contemplated under the provisions of Code of Civil Procedure, 1908 by allowing the present writ petition. He further submitted that if the Court permits defendant Nos.3(b) & (c), they will examine the said two witnesses on the next date of hearing i.e., 23.3.2017. 9. Per contra, Sri. Gangadhar, learned advocate for respondent Nos.1 and 2 sought to justify the impugned order and contended that in the absence of any material before the Court to show that the witnesses have refused to appear before the Court, the trial Court is justified in passing the impugned order. 10. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 11. 10. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 11. In the facts and circumstances of the present case, without adverting to the merits and demerits of the case, it is suffice to direct the trial Court to permit the defendant Nos.3(b) & 3(c) to examine two witnesses viz., Mr. Kempegowda s/o Honnegowda and Mr. B. N. Satish s/o late Ningegowda, on the next day of hearing i.e., on 23.3.2017. It is for the defendants 3(b) & 3(c) to take necessary steps to bring and examine the said witnesses on the next date of hearing and the plaintiffs can cross-examine them on the said date. 12. With the above observations, the writ petition is disposed of with liberty to the petitioners to examine the two witnesses’ "Mr. Kempegowda s/o Honnegowda and Mr. B. N. Satish s/o Late Ningegowda on the next date of hearing i.e., 23rd March, 2017 or any other date on or before 30th March, 2017 and thereafter the trial Court shall proceed with the suit in accordance with law. Accordingly, the impugned order passed by the trial Court is modified to the above extent.