Dismissed

Smt. Manjula v. Sri. M. C. Chandrashekaraiah

Karnataka HC10 Aug 2023WP/13198/2021

Case brief

AI extract

What is this about?

Writ petitioner challenged the rejection of an amendment to her written statement filed at the stage of arguments, seeking to introduce a 1994 Will. The High Court held that the amendment was belated, changed the suit's nature, and failed the due diligence requirement of CPC Order VI Rule 17 proviso.

What did the court decide?

Writ petition stands rejected; impugned order is not interfered with.

Smt. Manjula Vs Sri. M. C. Chandrashekaraiah — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON’BLE MR.JUSTICE S.G.PANDIT

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WRIT PETITION No.13198/2021 (GM-CPC)

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BETWEEN:

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SMT. MANJULA S/O. LATE PRABHU, HINDU, AGED ABOUT 33 YEARS, R/AT NO.12, BOMMASANDRA, 2^ND CROSS, 1^ST MAIN ROAD, VIDYARANYAPURA POST, BANGALORE-560 097. (BY SRI RAVISHANKAR S, ADV.)

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...PETITIONER

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AND:

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SRI. M. C. CHANDRASHEKARAIAH S/O. LATE CHANNABASAPPA AND HUSBAND OF LATE GOWRAMMA, AGED ABOUT 76 YEARS, R/AT NO.16-B, 2^ND MAIN ROAD, 4^TH CROSS, BEHIND RENUKAMBA TEMPLE, DODDABOMMASANDRA, VIDYARANYAPURA POST, BANGALORE-560 097.

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SMT. M. C. MANJULA W/O. MAHANTHESH ARADYA, AGED ABOUT 49 YEARS,

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D/O. LATE GOWRAMMA AND M.C. CHANDRASHEKARAIAH, R/AT KONGADIYAPPA COLLEGE ROAD, ISLAMPURA, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT.

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SRI. M. C. SHIVAPRASAD S/O. LATE GOWRAMMA AND M.C. CHANDRASHEKARAIAH, AGED ABOUT 46 YEARS, R/AT BEHIND VENUGOPALASWAMY TEMPLE, DODDABOMMASANDRA, VIDHYARANYAPURA POST, BANGALORE-560 097.

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SMT. M. C. NAGARATHNAMMA W/O. D. B. SUBRAMANI, AGED ABOUT 53 YEARS, D/O. LATE GOWRAMMA AND M.C. CHANDRASHEKARAIAH, R/AT NO. 72, JALAHALLI, BANGALORE-560 013.

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SMT. LALITHAMMA W/O. S. SURESH, AGED ABOUT 41 YEARS, D/O. LATE GOWRAMMA AND M.C. CHANDRASHEKARAIAH, R/AT THAMMANAYAKANAHALLI VILLAGE, ANEKAL TALUK, BANGALORE RURAL DISTRICT.

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SMT. M. C. RAJESHWARI W/O. CHIDANANDA, AGED ABOUT 30 YEARS, D/O. LATE GOWRAMMA AND

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M.C. CHANDRASHEKARAIAH, R/AT CHOWDESHWARI LAYOUT, VIDYARANYAPURA POST, BANGALORE-560 097.

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SRI. MAHADEVAIAH S/O. N. RUDRAIAH AND AKKAYYAMMA, HINDU, AGED ABOUT 62 YEARS, R/AT NO.50, 2^ND MAIN ROAD, 3^RD CROSS, GORAGUNTEPALYA, TUMKUR ROAD, BANGALORE-560 022.

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…RESPONDENTS

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(BY SRI NANJUNDARADHYA B.G., ADV. FOR R7 V/O DATED 26.07.2021 NOTICE TO R1-R6 IS WAIVED)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE ANNEXURE-A, THE ORDER ON I.A.NO.11 UNDER ORDER VI RULE 17 R/W SECTION 151 OF CPC DATED 22.04.2021, PASSED BY THE XXXIX ADDL CITY CIVIL AND SESSION JUDGE (CCH 40) AT BANGALORE CITY IN O.S.NO.9288/2013 BY ALLOWING THIS WRIT PETITION AND PASS ORDER ALLOWING I.A.NO.11 AS PRAYED FOR.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 01/08/2023 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner/defendant No.2 in

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O.S.No.9288/2013 on the file of XXXIX Additional City

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Civil and Sessions Judge, Bangalore City (for short, ‘Trial Court), is before this Court under Article 227 of the Constitution of India questioning the correctness and legality of order dated 22.04.2021 rejecting I.A.No.11 filed under Order VI Rule 17 of CPC for amendment of written statement.

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Learned counsel for the petitioner/defendant No.2 would submit that the suit in O.S.No.9288/2013

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was filed praying for a judgment and decree of partition and separate possession of ½ share in the suit schedule property along with defendants. The written statement was filed on 24.01.2018. When the suit was set down for arguments of defendant No.2, petitioner/defendant No.2 filed application under Order VI Rule 17 of CPC to amend the written statement to introduce certain facts

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i.e., to introduce a Will said to have been executed by Akkayyamma, mother of defendant No.1; to claim that said Akkayyamma bequeathed property in favour of her sons. Defendant No.2 is the wife of late Prabhu who is the brother of defendant No.1. The petitioner/defendant No.2 herein is wife of Prabhu, brother of defendant No.1. The other defendants are sisters of defendant No.1 and sisters of husband of defendant No.2. The said application for amendment was opposed by first defendant by filing objections contending that suit schedule property is the self-acquired property of mother of defendant No.1 i.e., Akkayyamma and having love and affection, she executed registered gift deed dated 07.09.2000 in favour of first defendant. Further, it is objected on the ground that the amendment application filed at the stage of arguments would not be maintainable and the petitioner/defendant No.2 has not satisfied the proviso to Rule 17 of Order VI of CPC. Thus, he prayed for

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dismissal of the application. The Trial Court on consideration of rival contentions of the parties, under impugned order rejected the application of the petitioner/defendant No.2 for amendment of written statement. Against which, petitioner/defendant No.2 is before this Court.

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Learned counsel Sri.Ravishankar.S., for the petitioner would contend that the Trial Court committed grave error in dismissing the application of the petitioner/defendant No.2 for amendment of written statement to introduce the fact of execution of registered Will dated 22.06.1994 by Smt.Akkayyamma, mother of first defendant as well as mother of husband of petitioner/defendant No.2. Learned counsel would submit that the registered Will dated 22.06.1994 was not within the knowledge of petitioner and immediately on coming to know about execution of Will,

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petitioner/defendant No.2 filed application for

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amendment of written statement.

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Learned counsel would further submit that

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under registered Will, the mother of defendant No.1 had bequeathed the suit schedule property in favour of first defendant and husband of petitioner/defendant No.2. Learned counsel for the petitioner/defendant No.2 would submit that if the amendment application is allowed, no prejudice would be caused to the plaintiff and other defendants. On the other hand, it would assist in proper adjudication of the dispute as well as it would avoid multiplicity of proceedings.

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Per contra, learned counsel

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Sri.Nanjundaradhya.B.G., for respondent No.7 would

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submit that the suit is at the stage of argument by defendant No.2 on completion of trial. The defendant No.2 had filed written statement on 24.01.2018 and the

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present application for amendment of written statement is filed on 30.01.2021, belatedly. Learned counsel would submit that in the affidavit accompanying application, petitioner/defendant No.2 has failed to explain as to why amendment could not be sought early, though it is claimed that it is a registered Will. Learned counsel would submit that belated application which changes the nature of the suit cannot not be entertained. Further, learned counsel would also submit that nature of amendment sought is in the nature of counter claim, which cannot be allowed at this stage of the proceedings. Learned counsel would further submit that if the amendment is allowed, it would introduce new cause of action and the entire complexion of the suit would change. Thus, he prayed for dismissal of the writ petition.

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Order VI Rule 17 of CPC empowers the Court

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to allow either of the parties to alter or amend the

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pleadings at any stage of the proceedings in such manner and on such terms as may be just, which are necessary for the purpose of determining the real questions in controversy between the parties. Proviso to Order VI Rule 17 would state that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

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The Hon’ble Apex Court while considering

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proviso to Order VI Rule 17 of CPC in the case of VIDYABAI AND OTHERS VS. PADMALATHA AND

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ANOTHER¹ at paragraph 10, it is held as follows:

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“ 10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:

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1 (2009) 2 SCC 409

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“Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

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It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

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The Hon’ble Apex Court in yet another decision in the case of M.REVANNA VS. ANJANAMMA (DEAD) BY LEGAL REPRESENTATIVES AND

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OTHERS² which was also considering a case of

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2 (2019) 4 SCC 332

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amendment of pleadings under Order VI Rule 17 of CPC at paragraph 7, held as follows:

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“ 7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in

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the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money. ”

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9. Keeping in mind the principles laid down by

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the Hon’ble Apex Court, facts of the present case will have to be examined.

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The suit is one for partition and separate possession of the suit schedule property. The petitioner/defendant No.2 is wife of one late Prabhu, bother of first defendant. The defendant No.2 filed written statement on 24.01.2018 and after recording of evidence, the suit was at the stage of arguments of defendant No.2, I.A.No.11 was filed by defendant No.2 under Order VI Rule 17 of CPC to amend the

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written statement to add paragraph 4(a) and 4(b) to the written statement to state that the mother of defendant No.1 and mother of husband of petitioner/defendant No.2, executed registered Will dated 22.06.1994 bequeathing suit schedule property to her children; further, to state that first defendant has set up the gift deed to grab entire property. If the amendment to written statement is allowed, it would change the entire complexion of the suit and cause of action. Moreover, the belated application filed by petitioner/defendant No.2 would not satisfy the pre-condition laid down under the proviso to Rule 17 of Order VI of CPC. No person can claim amendment of pleading as a matter of right under all circumstances, as held by the Hon’ble Apex Court. Normally amendments are allowed to avoid multiplicity of litigation. But, in the instant case, petitioner/defendant No.2 has not made out any ground to allow the amendment application that

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too when the suit is at the stage of final argument of defendants. The averment that a registered document of the year 1994 came to the knowledge of the petitioner/defendant No.2 only in the year 2021 cannot be believed in the facts and circumstances of the case. Thus, I am of the view that no ground is made out to interfere with impugned order.

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Accordingly, writ petition stands rejected.

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Sd/JUDGE

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NC. CT:bms

Smt. Manjula v. Sri. M. C. Chandrashekaraiah

Case brief

What is this about?

What did the court decide?

Smt. Manjula v. Sri. M. C. Chandrashekaraiah

Case brief

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