High Court dismissed a writ petition challenging the trial Court's rejection of an application to amend a plaint. The Court upheld the trial Court's finding that the plaintiffs were not due diligent in discovering the properties earlier.
Writ petition rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:36227 WP No.12919 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF OCTOBER, 2023 BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.12919 OF 2021 (GM-CPC)
BETWEEN:
Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA
…PETITIONERS
(BY SRI. KUMBAR VASANT FAKEERAPPA, ADV.,)
AND:
NC: 2023:KHC:36227 WP No.12919 of 2021
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 02.06.2021 PASSED BY THE HONBLE CIVIL JUDGE AND JMFC HEGGADADEVANAKOTE ON I.A.NO.IX FILED UNDER ORDER 6 RULE 17 R/W SECTION 151 OF CODE OF CIVIL PROCEDURE IN O.S.NO.235/2010 VIDE AT ANNEXURE-H. GRANT AN INTERIM ORDER OF STAY, STAYING ALL FURTHER PROCEEDINGS OF O.S.NO.235/2010 PENDING ON THE FILE OF CIVIL JUDGE AND JMFC, HEGGADEVANAKOTE PENDING DISPOSAL OF THE ABOVE WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the petitioners-plaintiffs under Article 227 of the Constitution of India praying to quash the order dated 02.06.2021 passed on I.A.9 in O.S.No.235/2010 on the file of Civil Judge and JMFC, Heggadadevanakote (hereinafter referred to as, ' the trial
Court' ).
2. Brief facts giving rise to filing of this petition are that the petitioners-plaintiffs have filed the suit for permanent injunction and separate possession against their brothers in respect of the suit schedule properties by contending that the suit schedule properties are the joint
family properties. The said suit is opposed by the respondents-defendants by filing the written statement. During the pendency of the said suit, the defendant No.1 has died issueless and the defendant No.2 has also died. The petitioners-plaintiffs have filed an application for transposition of petitioner No.3-plaintiff No.3 as defendant in the pending suit, which came to be rejected. During the interregnum, the respondent herein claiming to be the legal heir of defendant No.2 has filed a memo to come on record, which was accepted and he was allowed to come on record. During the pendency of the suit, the petitioners-plaintiffs have filed an application under Order VI Rule 17 of CPC seeking for amendment of the plaint by adding certain paragraph in the plaint and by adding two items of the properties in the schedule to the plaint. The said application was opposed by the respondent. The trial Court vide impugned order dated 02.06.2021 has rejected the said application. Under the said facts and
NC: 2023:KHC:36227 WP No.12919 of 2021
circumstances of the case, the present petition is filed assailing the order dated 02.06.2021.
3. Sri.Kumbar Vasant Fakeerappa, learned counsel
for the petitioners submits that the trial Court has committed grave error in rejecting the application seeking amendment of the plaint as the petitioners-plaintiffs have specifically contended that the respondent herein is stranger to the family of the petitioners-plaintiffs and his claim that he is an adopted son of defendant No.2 is without any basis and such contention has been raised in the rejoinder filed by the petitioners-plaintiffs to the written statement filed by the respondent herein i.e., defendant No.2(a). It is submitted that the petitionersplaintiffs have now came to know that two more properties i.e., land bearing Sy.No.506/2 measuring 30 guntas situated at Poorigali Village, B.G.Pura Hobli, Malavalli Taluk, Mandya District and house property bearing Khatha No.861/4, 309/4 measuring 15 feet X 40 feet and vacant site situated at 7th Ward, Saragur Hobli, Saragur Taluk
and Town on Kurubahundi Road are the joint family properties, hence they have moved an application for amendment of plaint by adding those properties into the plaint. It is submitted that without considering the material evidence on record, the trial Court has erroneously came to the conclusion that the application is filed at a belated stage and rejected the said application. Hence, he seeks to allow the writ petition.
4. Per contra, Sri.Shivananda R., learned counsel for the respondent supports the impugned order of the trial Court and submits that the respondent is an adopted son of defendant No.2, considering this aspect the trial Court has allowed the respondent to participate in the suit. It is submitted that the respondent has filed additional written statement in the suit by contending that the respondent is the adopted son of defendant No.2 and he has right in the suit schedule properties. It is submitted that the respondent has filed objections to the application filed seeking amendment of the plaint by contending that
the present application is filed with an ulterior motive to incorporate the two properties in the suit schedule and those properties are self-acquired properties of the respondent and hence, he seeks to dismiss the writ petition.
5. Having heard the learned counsel for the petitioners, learned counsel for the respondent and perusing the material available on record, it is not in dispute that the petitioners-plaintiffs have filed the suit for partition and separate possession against their brothers and during the pendency of the said suit the defendant Nos.1 and 2 died and the present respondent claiming to be an adopted son of defendant No.2 was brought on record and defending the suit.
6. The contention of the petitioners-plaintiffs that
the two properties referred supra are the joint family properties and they were not aware about those properties
at the time of filing of suit hence moved an application for
NC: 2023:KHC:36227 WP No.12919 of 2021
amendment of the plaint to include those two properties in the suit for the purpose of partition. On perusal of the material available on record, more particularly the judgment and decree passed in O.S.No.190/2003, wherein the civil Court has recorded the finding that the property i.e., land bearing Sy.No.506/2 is neither ancestral nor the joint family property. Hence, the contention of the petitioners that they were not aware about the properties has no merit consideration and is accordingly rejected. Insofar as the property bearing Khatha Nos.861/4 and 309/4, the house properties, the material on record clearly indicates that the said properties were purchased by defendant No.2 in the year 2003 i.e., after filing of the suit. Hence, the contention of the petitioners that the said properties are joint family properties or ancestral properties has no merit consideration. The trial Court at paragraph Nos.13 to 15 has recorded categorical finding that the petitioners-plaintiffs are not due diligent in filing the application and the present application is filed
belatedly with an intention to drag-on the proceedings. Further, it has reasoned that the petitioners-plaintiffs have assigned the reason that due to Covid-19 Pandemic they cannot take steps for amendment is not a ground to allow the application. This Court is of the considered opinion that the finding recorded by the trial Court is based on the material available on record and the said finding is neither perverse nor erroneous calling for interference in the present petition.
7. For the reasons recorded supra, this Court does not find any merit in the contentions urged by the petitioners, hence, the present petition is devoid of merits and is accordingly, rejected .
Sd/JUDGE
BSR
2 issues framed by the court
Whether the Writ Court should interfere with the trial Court's order rejecting the application for amendment of plaint to add properties discovered later.
Whether the delay in filing the amendment application justifies quashing the trial Court's order.
2 provisions across 2 enactments
SMT. USHA D/O LATE K.H. SHIVANAGAPPA
SMT. LATHA D/O LATE K.H. SHIVANAGAPPA
SMT. SHAKUNTHALA D/O LATE K.H. SHIVANAGAPPA
SRI. H.K. SANTOSH KUMAR
VIJAYKUMAR A. PATIL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
