Dismissed

Hanamant v. Sunil

Karnataka HC2 Dec 2022WP/109261/2016

Case brief

AI extract

What is this about?

This writ petition challenges the allowance by the First Appellate Court of an application to amend the plaint schedule in a partition suit remitted for deciding legacy issues. The High Court permitted the amendment, observing that re-examination on merits requires including properties purchased during the suit's pendency.

What did the court decide?

The appeal was dismissed; the impugned order allowing the amendment application was upheld.

Hanamant Vs Sunil — Partition | Karnataka HC (2022)

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WP No. 109261 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 109261 OF 2016 (GM-CPC)

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BETWEEN:

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HANAMANT, S/O BHIMAPPA KONNUR AGE: 40 YEARS, OCC: AGRICULTURE R/O: KAVATAGI VILLAGE, TQ: JAMAKHANDI, DIST: BAGALKOTE

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GHUSIRAPPA, S/O BHIMAPPA KONNUR AGE: 38 YEARS, OCC: AGRICULTURE R/O: KAVATAGI VILLAGE, TQ: JAMAKHANDI, DIST: BAGALKOTE

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…PETITIONERS

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(BY SRI. CHETAN T. LIMBIKAI, ADVOCATE)

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AND:

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SUNIL, S/O BALAPPA KONNUR AGE: 22 YEARS, OCC: STUDENT R/O: KAVATAGI VILLAGE,

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TQ: JAMAKHANDI, DIST: BAGALKOTE

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Digitally signed by SUJATA SUBHASH PAMMAR

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SMT.SUMITRA, W/O BALAPPA KONNUR AGED ABOUT 40 YEARS, OCC: AGRICULTURE R/O: KAVATAGI VILLAGE,

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TQ: JAMAKHANDI, DIST: BAGALKOTE

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BALAWWA, W/O BALAPPA KONNUR AGED ABOUT 70 YEARS, OCC: AGRICULTURE R/O: KAVATAGI VILLAGE,

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TQ: JAMAKHANDI, DIST: BAGALKOTE

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BALAPPA, S/O BHIMAPPA KONNUR AGED ABOUT 52 YEARS, OCC: AGRICULTURE R/O: KAVATAGI VILLAGE,

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TQ: JAMAKHANDI, DIST: BAGALKOTE

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WP No. 109261 of 2016

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P.L.D BANK JAMAKHANDI REPRESENTED BY ITS SECRETARY JAMAKHANDI

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BIJAPUR GRAMIN BANK, BRANCH BIDARI TALUKA JAMAKHANDI BIDARI

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VYAVASAY SEVA SAHAKARI SANGH LTD, BIDARI, TALUKA JAMAKHANDI

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…RESPONDENTS

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(BY SRI. MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER MADE ON I.A.NO.9/2016 DATED:21.10.2016 VIDE ANNEXURE-F PASSED BY THE FIRST APPELLATE COURT IN R.A.NO.88/2005 PENDING ON THE FILE OF 1^ST ADDITIONAL DISTRICT AND SESSIONS JUDGE BAGALKOT(TO SIT AT JAMAKHANDI).

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking for the following reliefs:

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i. Issue a writ, in the nature of certiorari and quash the impugned order made on I.A.No.9/2016 dated 21.10.2016 vide Annexure-F passed by the 1^st Appellate Court in R.A.No.88/2005 pending on the file of 1^st Addl. Dist. & Sessions Judge, Bagalkot (to sit at Jamakhandi) in the interest of justice and equity.

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ii. Issue any other order or direction in the facts and circumstances of the instant case as this Hon’ble Court deem it fit in the interest of justice and equity.

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WP No. 109261 of 2016

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The brief facts of the case are;

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2.1. O.S.No.113/1997 had been filed for partition and separate possession of the alleged joint family properties. The said suit having been decreed, R.A.No.88/2005 was filed, which came to be dismissed on 16.12.2006.

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2.2. Aggrieved by the same, Regular Second Appeal in RSA No.778/2007 had been filed and this Court vide order dated 04.12.2012 remitted the matter to the First Appellate Court to determine the issue as to whether respondents No.5 and 6 were legatees under the Will dated 16.09.2005 and to re-examine the matter on merits.

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2.3. Subsequent thereto, respondents No.1 and 2 in the said R.A.No.88/2005 filed an application under Order VI Rule 17 of the Code of Civil Procedure, seeking for amendment to the plaint Schedule-A to add two more properties by contending that the said properties had

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WP No. 109261 of 2016

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been purchased during the pendency of the suit from and out of the joint family funds.

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2.4. The said application being allowed, the petitioners who are the appellants in the Regular Appeal are before this Court challenging the said order.

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Sri. Chetan Limbikai, learned counsel appearing for the petitioners would submit that;

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3.1. In the Regular Second Appeal, the remittal was made only for limited purpose of ascertaining whether respondents No.5 and 6 therein were legatees under the Will. By seeking for amendment of the plaint schedule, the scope of the remittal is being expanded, which is not permissible.

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3.2. Further, such properties not having been included in the said suit could not have been brought on record after the remand to the First Appellate Court.

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3.3. As such, the impugned order passed by the First Appellate Court on the application under Order VI Rule 17 dated 21.10.2016 Is required to be set aside.

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WP No. 109261 of 2016

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Per contra, Sri. Mrutyunjaya Tata Bangi, learned counsel for the respondent submits that;

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4.1. The requirement of introducing new properties by way of amendment was on account of the said properties having been purchased during the pendency of the suit.

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4.2. The said properties could not have been included in the suit when it was filed by the respondents, since the said properties were not in existence on that date.

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4.3. The respondents, who are the plaintiffs in the suit have exercised reasonable care and due diligence and it is immediately after coming to know of the purchase of the properties that the amendment application has been filed.

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4.4. As such he submits that the introduction of the properties by way of amendment would not change the nature of the suit or character of the suit. Only the rights of the parties are required to be determined in the suit for partition by way of preliminary decree and

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WP No. 109261 of 2016

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all other aspects would be considered in the final decree proceedings.

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Heard Sri. Chetan Limbikai, learned counsel for the petitioners and Sri. Mrutyunjaya Tata Bangi, learned counsel for the respondents No.1 and 2. Other respondents though served chosen to remain unrepresented.

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The short question that is required to be considered by this Court would be as to whether the First Appellate Court would consider the application for amendment upon a remand made to it?

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As contended by the learned counsel Sri. Mrutyunjaya Tata Bangi and as observed above, the application under Order VI Rule 17 of the Code of Civil Procedure for amendment though filed before the First Appellate Court after trial, it has been categorically stated that the said properties, which were sought to be made part of the suit property, were purchased subsequent to the filing of the suit from and out of the joint family funds. Whether in fact they were purchased from joint family funds or not would have to be determined by the

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WP No. 109261 of 2016

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Court, if required, by considering additional evidence. The fact that the purchase has been made in the name of the petitioners is not in dispute. The only issue that would have to be considered is whether it is purchased from and out of joint family funds or not.

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As regards the remittal, though the learned counsel Sri.Chetan Limbikai, by relying upon paragraph 6 of the order dated 04.12.2021 passed in RSA No.778/2007 submits that, matter is remitted to hold an enquiry as regards the alleged Will and as such, the First Appellate Court could not have allowed the amendment application, I am of the considered view that, apart from paragraph 6, in paragraph 7, this Court has observed that the matter requires re-consideration on merits and the First Appellate Court was directed to reconsider the entire appeal after issue on the Will was decided.

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Thus, if any property is purchased during the pendency, then that would necessarily have to be made as a part of the plaint schedule. Thus, the observation made in the order

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WP No. 109261 of 2016

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dated 04.12.2012 would have to be read in conjunction with the observation made in paragraph No.7 thereof. Hence the said contention of Sri. Chetan Limbikai would have to be rejected.

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On enquiry as to the stage of the matter before the First Appellate Court, both the counsel submit that there is no particular issue which has been framed in respect of the alleged Will and of respondents No.5 and 6 being legatees under the Will. The First Appellate Court is directed to frame necessary issues in relation thereto and to proceed therefrom. Needless to say the petitioner is permitted to file additional written statement explaining the purchase made.

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Writ petition is disposed of accordingly.

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Sd/JUDGE

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gab

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List No.: 1 Sl No.: 15

Hanamant v. Sunil

Case brief

What is this about?

What did the court decide?

Hanamant v. Sunil

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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