Allowed

Smt. Honnamma v. Nijalingaiah

Karnataka HC8 Oct 2020WP/28006/2015

Case brief

AI extract

What is this about?

Petitioners sought certiorari to quash an order allowing IA-10 under Order 6 Rule 17 CPC filed by defendants in a suit for permanent injunction. The High Court held that the application lacked bona fides and did not make out grounds under the cited rule, quashing the lower court order and dismissing the amendment application.

What did the court decide?

Impugned order dated 23.06.2015 allowing IA-10 in O.S. No. 62/2011 is quashed; application under Order 6 Rule 17 CPC is dismissed.

Smt. Honnamma Vs Nijalingaiah — Property and Title | Karnataka HC (2020)

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W.P. No.28006 OF 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF OCTOBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.28006 OF 2015 (GM-CPC)

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BETWEEN:

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SMT. HONNAMMA W/O BASAVARAJAIAH AGED ABOUT 59 YEARS R/O MARUTHI NILARYA SUNKADAKATTE VISHWANEEDAM POST BANGALORE-560094

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SINCE DECEASED BY HER LRS' VIDE COURT ORDER DATED 2.11.2018

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H.S. BASAVARAJAIAH S/O LATE SIDDALINGAIAH AGED ABOUT 73 YEARS

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H.B. MAHESH KUMAR S/O H.S. BASAVARAJAIAH AGED ABOUT 43 YEARS

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SRI. H.B. NAGESH S/O H.S.BASAVARAJAIAH AGED ABOUT 41 YEARS

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SRI. H.B. SANJEEVEGOWDA S/O H.S. BASAVARAJAIAH

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AGED ABOUT 39 YEARS

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SMT. KAVITHA W/O D. VENKATESH AGED ABOUT 37 YEARS

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W.P. No.28006 OF 2015

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ALL ARE RESIDING AT MARUTHI NILAYA SUNKADA KATTE, VISHWANEEDAM POST BANGALORE. ... PETITIONERS

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(BY SRI.SHANMUKHAPPA, ADVOCATE)

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AND:

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NIJALINGAIAH S/O SIDDALINGAIAH AGED ABOUT 44 YEARS

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SMT. KUMARI W/O YDIYURAIAH AGED ABOUT 34 YEARS

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CHIKKAMARI

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S/O SIDDALINGAIAH AGED ABOUT 54 YEARS (DEAD) DELETED

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THOTAPPA S/O THOTAIAH AGED ABOUT 49 YEARS

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SIDDAPPA

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S/O A. ARIYANNA AGED ABOUT 54 YEARS

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CHIKKAIAH

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S/O KARIYAPPA AGED ABOUT 49 YEARS

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ALL ARE R/O KRISHNAPPANA KOPPALU H/O LAKKASHETTPURA VILLAGE HULIYURDURGA HOBLI

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KUNIGAL TALUK-571115 ... RESPONDENTS

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(BY SRI. LOHITH.R, ADVOCATE FOR

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SRI. N.SHANKARNARAYANA BHAT, ADVOCATES FOR R1 & R5; VIDE COURT ORDER DATED 17.02.2016;

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R3 - DELETED; R2, R4 & R6 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 23.06.2015 PASSED ON I.A.NO.10 FILED BY THE

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W.P. No.28006 OF 2015

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RESPONDENTS UNDER ORDER 6 RULE 17 OF THE CPC IN O.S.NO.62/2011 BY THE LEARNED ADDL. CIVIL JUDGE AND JMFC, KUNIGAL, VIDE ANNEXURE-A.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THROUGH VIDEO CONFERENCE THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for a certiorari to quash the order dated 23.06.2015 passed on IA-10 filed under Order 6 Rule 17 of CPC by the defendants in O.S.No.62/2011.

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The petitioner who was the plaintiff in O.S.No.62/2011 filed the said suit seeking for an order of permanent injunction restraining the defendants therein from interfering with their alleged possession by the plaintiffs. The defendants entered appearance and filed detailed written statement contending that the plaintiff has no right, title and interest on the said property inasmuch as the said property has already been acquired and allotted for the purpose of implementation of ‘Ashraya Scheme’, in furtherance thereto the Gram Panchayat had allotted the sites formed in the said survey numbers to the defendants therein and several others. It is on that basis claiming that the plaintiff has not been in possession and

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W.P. No.28006 OF 2015

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defendants are in possession have sought for dismissal of the suit. Issues were framed and the matter posted for trial. The plaintiffs had led evidence of three witnesses who were cross-examined and it is at that stage an application in IA-10 under Order 6 Rule 17 of CPC came to be filed seeking to place several facts and documents on record. The said application was objected to by the plaintiff but however came to be allowed by way of impugned order of the trial Court.

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Sri.Shankarappa, learned counsel for the petitioner would submit that the amendment sought for, are post trial, amendments and application as filed and affidavit in support of the application as filed does not make any ground to establish the bonafides on the part of the defendants in filing the said application. The averments contained in the amendment application are more in the nature of explaining the earlier averments made in the written statement which are only made in order to substantiate the earlier allegations and as such, the application of this nature filed in a delayed manner ought not to have allowed by the trial Court. The trial Court has

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W.P. No.28006 OF 2015

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not considered the aspect of delay, as also the aspect of trial having already commenced and on these grounds, Sri.Shanmukhappa seeks for allowing writ petition by quashing the impugned order.

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Per contra, Sri.Lohit for Sri.Shankarnarayana Bhat, learned counsel for the respondents No.1 to 5 would submit that the trial Court has rightly considered the application. The defendants being rustic villagers were unable to procure documents and place the details thereof for consideration of the trial Court in the written statement when the written statement was filed and hence, the application was filed as and when the defendants procured documents. On these grounds, he submits that the order passed by the trial Court is just and proper and does not require any interference.

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Heard Sri.Shanmukhappa, learned counsel for the petitioner and Sri.Lohith.R, learned counsel for Sri.N.Shankarnarayana Bhat, learned counsel for the respondents. Perused the impugned order of the trial Court and the application filed under Order 6 rule 17

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W.P. No.28006 OF 2015

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being IA-10 in O.S.No.62/2011 and also objections thereto.

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Though the affidavit filed in support of the application for amendment is around five pages, I find that the said affidavit is a repetition of the amendment which is sought for and there is no particular reason which has been furnished as to why the amendment is sought for, as also explaining the delay in filing the said application. Be that as it may, in order to consider whether the amendment is required, I have also perused the amendment sought for. The amendment sought for is only placing on record the schedules to various Hakku patras which are executed in favour of the defendants and it is on that basis, the defendants are contending that they are in possession of the suit schedule property. Apart therefrom, they have also made several averments as regards the acquisition of land, vesting of land with the Grama Panchayat and allotment made by the Grama Panchayat. Virtually all the statements made in the amendment sought for is only to substitute the averments already made by placing the documents on record which could have been

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W.P. No.28006 OF 2015

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produced by the defendants before the trial court as evidence, towards which Sri.Shanmukhappa, learned counsel very fairly submits that he would have no objection for those documents to be produced by the defendants in their evidence.

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In view of the same, application not making out any grounds under Order 6 rule 17, I find that the order passed by the trial Court dated 23.6.2015 cannot be countenanced and is therefore, quashed. The application under Order 6 rule 17 being IA-10 is dismissed with the above observations.

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The writ petition is accordingly allowed.

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Sd/JUDGE

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Smt. Honnamma v. Nijalingaiah

Case brief

What is this about?

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Smt. Honnamma v. Nijalingaiah

Case brief

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