Dismissed

Sri. Gangadharaiah v. Chandraiah

Karnataka HC4 Sept 2023WP/6367/2020

Case brief

AI extract

What is this about?

The High Court rejected the writ petition challenging the dismissal of applications to amend a plaint and produce additional documents. The Court held the petitioner lacked due diligence as he knew these facts prior to filing the suit and the order was not interfered with.

What did the court decide?

The writ petition was dismissed; the impugned order of the Trial Court rejecting the amendment and document production applications was upheld.

Sri. Gangadharaiah Vs Chandraiah — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:31795 WP No.6367 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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WRIT PETITION NO.6367 OF 2020 (GM-CPC)

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BETWEEN:

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SRI. GANGADHARAIAH S/O LATE GANGANNA AGED ABOUT 62 YEARS AGRICULTURIST

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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R/AT. BEERANAKULU VILLAGE SWANDENAHALLI POST KASABA HOBLI, TUMKUR TALUK.

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(BY SRI. ANJANEYA, ADV.,)

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AND:

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…PETITIONER

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CHANDRAIAH AGED ABOUT 67 YEARS S/O LATE RANGEGOWDA.

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RAJANNA AGED ABOUT 64 YEARS S/O RANGEGOWDA.

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GANGADHARAIAH AGED ABOUT 72 YEARS S/O LATE RANGEGOWDA.

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PARAMESH DEAD BY HIS LR'S

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4(a) KATHYAYINI AGED ABOUT 59 YEARS W/O LATE PARAMESH.

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4(b). SARANYA D/O LATE PARAMESH

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NC: 2023:KHC:31795 WP No.6367 of 2020

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AGED ABOUT 21 YEARS. BOTH ARE R/AT BEERANAKALLU VILLAGE KASABA HOBLI, TUMKUR TALUK.

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GURULINGAIAH AGED ABOUT 57 YEARS S/O LATE GANGEGOWDA.

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ALL ARE R/AT BEERANAKALLU VILLAGE KASABA HOBLI, TUMKUR TALUK-572101.

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…RESPONDENTS

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(BY SRI. R.V. JAYAPRAKASH, ADV., FOR R1 TO R3, R4(a), R4(b) AND R5)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.11.2019, ORDER PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND JMFC COURT, AT TUMAKURU ON IA U/O 6 RULE 17 AND U/O 7 RULE 14(3) OF CPC R/W 151 OF CPC IN OS 207/13 ANNX-E, AND ALLOW THE PETITION. GRANT AN INTERIM ORDER TO STAY THE ORDER PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND JMFC COURT, AT TUMAKURU, DATED 11.11.2019, ON IA U/O 6 RULE 17 AND U/O 7 RULE 14(3) OF CPC IN O.S.NO.207/13 ANNX-E, PENDING DISPOSAL OF THE W.P.

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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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This writ petition is filed under Article 227 of the Constitution of India seeking prayer to quash the impugned order dated 11.11.2019 passed by the II Addl. Sr. Civil Judge and JMFC, Tumakuru in O.S.No.207/2013 on an application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 and an application filed under Order VII Rule 14(3) of the CPC wherein the Trial Court has rejected both the applications.

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Brief facts giving rise to filing of this petition are that petitioner - plaintiff has filed a suit for declaration that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule A and B properties and further prayer of permanent injunction restraining the defendants from interfering with the suit schedule properties. In the said suit, the petitioner has filed an application seeking prayer to amend the plaint and an application to permit the applicant to produce the additional document. Both the applications

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were considered by the Trial Court and rejected vide impugned order dated 11.11.2019.

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Sri.Anjaneya, learned counsel appearing for the petitioner submits that the Trial Court has committed a grave error in rejecting the application filed by the petitioner. It is submitted that the petitioner has obtained the documents recently and based on the said documents, he is seeking to amend his plaint and sought to produce the documents. It is submitted that the amendment of the plaint can be allowed at any stage of the proceedings. However, contrary to the same, the Trial Court has rejected the said applications for amendment as well as the application for production of documents.

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Per contra, Sri.R.V.Jayaprakash, learned counsel appearing for the respondents supports the impugned order and submits that proviso to Order VI Rule 17 of the CPC is

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very clear that no application for amendment shall be allowed after the trial has been commenced unless the Court

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comes to the conclusion that, the party after the due diligence, could not secure the information of the documents. It is submitted that the petitioner by way of amendment to the plaint intends to bring certain new facts which were within the knowledge of the petitioner even prior to filing of the suit and the petitioner is not diligent in seeking amendment. It is submitted that the petitioner has not given any reason as to why he has not produced the documents which he intends to produce now. Hence, he seeks to dismiss the petition.

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I have heard the learned counsel for the petitioner,

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learned counsel for the respondent and perused the material on record. It is not in dispute that the petitioner has filed suit for declaration and permanent injunction. In the plaint, the petitioner has specifically stated that since from the date of partition, the father of the petitioner Ganganna was in possession and enjoyment of both A and B schedule properties. However, khata and pahani in respect of Schedule B property has not been accepted by the revenue

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authorities in the name of Ganganna and taking undue advantage of the same, the defendants having no manner of right, title and interest nor in possession of the Schedule B property, in collusion with the revenue authorities, have got the khata transferred in their name in their share in

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Sy.No.38/1A, new Sy.No.38/1A1 measuring 5 acres.

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On bare perusal of the proposed amendment sought by the petitioner, it is evident that the petitioner intends to bring the new fact that the father of the petitioner has sold portion of the property measuring 0.20 guntas in favour of Shivanna on 03.09.2003 and also sold portion of property to an extent of 24.8 guntas in favour of Shivanna on 03.11.2007 and remaining property is in possession and enjoyment of the plaintiff and his father and the first wife of the plaintiff has filed maintenance petition and daughter of the plaintiff has filed O.S.No.58/2003 for partition and separate possession and the said suit. The said suit has ended in compromise on 29.01.2005 and as per the family settlement of the plaintiff, plaintiff's first wife Susheelamma

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has got share in the said survey number to an extent of 23.08 guntas and the plaintiff's second wife by name Shakuntala got her share to an extent of 23.8 guntas and the plaintiff's daughter B.G.Ambika has also got her share to an extent of 15.08 guntas in the said survey number and the revenue records are accordingly standing in their names and the remaining property measuring 2.08 acre is in possession and enjoyment of the plaintiff. The defendants, in collusion with the revenue officials, have created documents and changed the khata in their name and hence, he seeks to add these aforesaid facts in the plaint. On perusal of the averments made in the application and the law governing the amendment of pleading. The petitioner, in the amendment application, has narrated the facts of the year 2003 and 2005 and the suit is filed in the year 2013 by the petitioner. The petitioner was having knowledge of above facts. The petitioner has not given any explanation for not incorporating these facts in the plaint initially, when it was filed. The petitioner was very much aware about the facts narrated in the proposed amendment on the date of filing of

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the suit. Hence, the attempts of the petitioner of filing an application for amendment is without any due diligence and is an attempt to protract the proceedings. The present application seeking amendment is filed by the petitioner after a period of six years from the date of filing of the suit and only when the matter is posted for further evidence of the defendants i.e. almost at the stage of closure of the trial. For the aforementioned reasons, I do not find any merit in the petition calling for interference with the order passed by the Trial Court insofar as rejecting the application filed under Order VI Rule 17 of CPC.

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The Trial Court has considered the application of the petitioner under Order VII Rule 14(3) of the CPC seeking prayer to produce additional documents and the same was rejected by the impugned order. On perusal of the application and accompanying affidavit, the petitioner has made averment that the petitioner is innocent person not having any worldly knowledge and due to that fact, at the time of filing the suit, he was unable to collect some of the

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important documents hence he sought to be produced now.

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The Trial Court has considered the same and rejected the application holding that the genealogical tree executed before the notary public on the stamp paper, unregistered document of partition deed which is not registered and duly stamped, cannot be looked into as evidence and another document i.e. partition deed which is a Xerox copy, cannot be marked as evidence on behalf of the plaintiff and further observed that the case is already posted for further evidence of the defendants and that the plaintiff was provided with sufficient opportunity to produce such documents during the course of his evidence and therefore, once again, production of the documents and marking of such documents cannot arise. I do not find any error in the aforesaid finding of the Trial Court. The petitioner / plaintiff, except saying that he is innocent person, not having any worldly knowledge, has not assigned any reason whatsoever as to why the petitioner has failed to produce the documents at the time of presentation of the plaint though they were within his knowledge and possession of the

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plaintiff. The plaintiff has not made any attempt to produce such document even during the course of his evidence. The filing of the present application for production of document is an after thought and filed with an intention to protract the proceedings.

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For the aforementioned reasons, I do not find any reason to interfere with the impugned order. The writ petition is devoid of merit and the same is hereby dismissed.

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Sd/JUDGE

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Sri. Gangadharaiah v. Chandraiah

Case brief

What is this about?

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Sri. Gangadharaiah v. Chandraiah

Case brief

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