Dismissed

Sri Bheemappa S/O Hanamappa Walikar v. Smt Shantavva S/O Mallappa Walikar

Karnataka HC18 Apr 2024WP/101663/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking to quash an order rejecting a belated application for amendment of a plaint in a partition suit. Observing the suit had proceeded to arguments without sufficient explanation for the delay and noting the application was incomplete, the court held the trial court's rejection was justified, dismissing the petition while reserving liberty to file a fres

What did the court decide?

Writ petition dismissed; liberty reserved to file fresh application for amendment of plaint.

Sri Bheemappa S/O Hanamappa Walikar Vs Smt Shantavva S/O… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:6530 WP No. 101663 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18^TH DAY OF APRIL, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V.HOSMANI WRIT PETITION NO. 101663 OF 2024 (GM-CPC)

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BETWEEN:

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SRI BHEEMAPPA S/O. HANAMAPPA WALIKAR, AGE: 73 YEARS, OCC: AGRICULTURIST,

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SRI CHANDRASHEKARAPPA @ SHEKARAPPA S/O. HANAMAPPA WALIKAR, AGE: 56 YEARS, OCC: AGRICULTURIST, BOTH ARE RESIDENT OF GATTIGANUR VILLAGE, TQ: HUNAGUND, DIST: BAGALAKOTE-587 101.

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…PETITIONERS

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(BY SRI B.C. JNANAYYA SWAMI &

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SRI BASAVARAJ PATIL, ADVOCATES)

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AND:

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SMT. SHANTAVVA S/O. MALLAPPA WALIKAR, AGE: 61 YEARS, OCC: AGRICULTURE,

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SRI SANGAPPA S/O. MALLAPPA WALIKAR, AGE: 38 YEARS, OCC: AGRICULTURE,

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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SRI HANAMAPPA S/O. MALLAPPA WALIKAR, AGE: 36 YEARS, OCC: AGRICULTURE,

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SRI SURESH S/O. MALLAPPA WALIKAR, AGE: 34 YEARS, OCC: AGRICULTURE,

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SRI SIDDALINGAPPA S/O. HANAMAPPA WALIKAR, AGE: 70 YEARS, OCC: AGRICULTURE,

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SRI BASAPPA S/O. HANAMAPPA WALIKAR SINCE DECEASED AND HIS LRS ON RECORD.

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SMT. YAMANAVVA W/O. BASAPPA WALIKAR, AGE: 63 YEARS, OCC: HOUSEHOLD, RESPONDENT NO.1 TO 6 ARE ALL R/O. GHATTIGANUR VILLAGE, TQ: HUNAGUND, DIST: BAGALAKOTE-587101.

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2 - NC: 2024:KHC-D:6530 WP No. 101663 of 2024

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SMT. RENUKA W/O. MALLIKARJUN GARAWAD, AGE: 38 YEARS, OCC: HOUSEHOLD, R/O. HOSUR, TQ: BADAMI, DIST: BAGALAKOTE-587101.

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SRI SHIVAKUMAR S/O. BASAPPA WALIKAR, AGE: 36 YEARS, OCC: AGRICULTURE,

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SMT. MANJULA W/O. KANTAPPA BHAGAVATI, AGE: 33 YEARS, OCC: HOUSEHOLD, R/O. HALKAVATAGI, TQ: LINGASAGUR, DIST: RAICHUR-584122.

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SRI PARASHURAM W/O. BASAPPA WALIKAR, AGE: 30 YEARS, OCC: AGRICULTURE,

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SRI MUTTAPPA S/O. HANAMAPPA WALIKAR, AGE: 63 YEARS, OCC: AGRICULTURE,

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SMT. HANAMAVVA W/O. BHEERAPPA GURIKAR, AGE: 78 YEARS, OCC: HOUSEHOLD,

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SMT. MUTTAVVA W/O. YAMANAPPA GADDAD, AGE: 34 YEARS, OCC: HOUSEHOLD, THE RESPONDENT NO.10 TO 13 ARE ALL R/O. GHATTIGANUR VILLAGE, TQ: HUNAGUND, DIST: BAGALAKOTE-587101.

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SMT. MALLAVVA W/O. MUTTAPPA HUTAKANNAVAR, AGE: 32 YEARS, OCC: HOUSEHOLD, R/O. MURATAGERI VILLAGE, TQ: ILKAL, DIST: BAGALAKOTE-587101.

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…RESPONDENTS

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(BY SRI S.K. KULKARNI & SRI SANTOSH BIRANGI, ADVOCATES FOR R1-5 & 11; SRI N.R. KUPPELUR, ADV. FOR R12; R6, R7, R9 & R10 ARE SERVED; R8 - POSTAL SHARA “NO SUCH PERSON”)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE IN THE WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 1.2.2024 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC HUNAGUND IN O.S.NO.55/2016 (ARISING OUT OF IA NO.15) VIDE ANNEXURE-F, IN THE INTEREST OF JUSTICE AND EQUITY.

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3 - NC: 2024:KHC-D:6530 WP No. 101663 of 2024

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is filed seeking for following relief:

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“Issue in the writ in the nature of certiorari to quash the impugned order dated 01.02.2024 passed by the Senior Civil Judge and JMFC Hunagund in O.S.no.55/2016 (arising out of IA no.15) vide Annexure-F, in the interest of justice and equity.”

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Sri B.C.Jnanayya Swami, learned counsel for

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petitioners submits petitioners were plaintiffs no.1 and 2 in O.S.no.55/2016 on file of Senior Civil Judge and JMFC, Hungund. It was submitted suit was filed for partition and separate possession. And in said suit, petitioner had filed I.A.no.15 under Order VI Rule 17 read with Section 151 of CPC for amendment. In said application, it was stated that certain properties, which were not included in plaint were required to be added, as petitioners were not aware of same earlier. Under impugned order, trial Court rejected application. It was submitted, reason assigned by trial Court that there was no diligence on part of plaintiffs, would not be justified. On above grounds, sought for quashing of order.

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4 - NC: 2024:KHC-D:6530 WP No. 101663 of 2024

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On other hand, Sri S.K. Kulkarni, learned counsel for respondents no.1 to 5 and 11 submits that application was filed after conclusion of trial i.e., at stage of arguments without proper explanation for delay and need for amendment. Therefore, rejection was fully justified.

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In reply, learned counsel for petitioners submits that presently suit is at stage of cross-examination of PW.1.

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Heard learned counsel and perused writ petition records.

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From above, it is seen that petitioners are challenging order rejecting application for amendment of plaint. Perusal of order impugned would reveal that trial Court on thorough consideration of averments in application and contents of affidavit held that there is lack of diligence on part of plaintiff. In written statement filed by defendants no.8 and 9, they have disputed suit schedule. As observed, thereafter trial proceeded up to stage of arguments. At that stage, application was filed for

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5 - NC: 2024:KHC-D:6530 WP No. 101663 of 2024

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amendment. There is no dispute that suit had proceeded

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up to stage of arguments.

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Hon’ble Supreme Court in Life Insurance Corporation of India vs. Sanjeev Builders Pvt. Ltd., reported in 2022 SCC OnLine SC 1128, has held that normally, application for amendment is to be considered liberally, except suit has reached stage of trial or after conclusion of trial, in which case, unless person seeking amendment establishes that despite due diligence he was not aware of subject matter of amendment and there was need for amendment for bringing out true controversy between parties and to avoid multiplicity of proceedings.

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Perusal of I.A.no.15 at Annexure-F would indicate that plaintiff has sought to amend plaint for inclusion/exclusion of properties in schedule-A, B and C and for addition of schedule–D properties. But, schedule–D is not made part of application. As rightly observed, application for amendment was incomplete. Further, in affidavit filed in support of application, only assertion is

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6 - NC: 2024:KHC-D:6530 WP No. 101663 of 2024

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that amendment could not be sought, due to oversight and on account of non-availability of records at time of filing of suit. There is no other pleading to substantiate due diligence. In fact, above assertion would indicate knowledge about suit properties by plaintiff. If reason for amendment was non-availability of records, suit being filed in year 2016, application could not have been filed after 8 years i.e., 24.01.2024. Application would be belated. However, it is to be noted that without enclosing scheduleD properties to application, plaintiff has filed I.A.no.15. Therefore, rejection of application by trial Court on that count would be justified.

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Accordingly, writ petition stands dismissed, reserving liberty to petitioners to file fresh application for amendment.

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All contentions are kept open.

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Sd/JUDGE

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Psg*:List No.: 1 Sl No.: 10

Sri Bheemappa S/O Hanamappa Walikar v. Smt Shantavva S/O Mallappa Walikar

Case brief

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Sri Bheemappa S/O Hanamappa Walikar v. Smt Shantavva S/O Mallappa Walikar

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