Allowed

Sri Ramappa v. Smt Thimmakka

Karnataka HC19 Mar 2024WP/1812/2024

Case brief

AI extract

What is this about?

A plaintiff's Order VI Rule 17 CPC application to add a declaration-of-title prayer was rejected by the trial court on limitation and delay grounds. The High Court held amendments opposed on limitation grounds should be allowed without relating back, set aside the rejection, allowed the amendment from the application date, and directed completion of the suit by December 2024.

What did the court decide?

Impugned order set aside; I.A.No.13 allowed with amendment effective from 08.06.2023 (no relation back); liberty to file additional written statement; suit to be disposed by 20.12.2024.

Sri Ramappa Vs Smt Thimmakka — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:11723 WP No. 1812 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 1812 OF 2024 (GM-CPC)

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BETWEEN:

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SRI RAMAPPA S/O KRISHNAPPA AGED ABOUT 71 YEARS R/AT CHALAGATTA VILLAGE KASABA HOBLI KOLAR TALUK 563102.

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…PETITIONER

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(BY SRI. RAJESH GOWDA.,ADVOCATE)

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AND:

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SMT THIMMAKKA W/O LATE MUNISWAMAPPA AGED ABOUT 78 YEARS

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Digitally signed by VANDANA S

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Location: High Court of Karnataka

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LAKSHMAMMA D/O LATE MUNISWAMAPPA AGED ABOUT 43 YEARS

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SMT PADMA D/O LATE MUNISWAMAPAP AGED ABOUT 40 YEARS

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SRI NAGARAJ ALIS SHANKAR S/O LATE MUNISWAMAPPA AGED ABOUT 37 YEARS

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ALL ARE R/AT MAGERI VILLAGE KASABA HOBLI BANGARPET TALUK 563 114.

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…RESPONDENTS

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(BY SRI.R.S. RAVI., SENIOR COUNSEL FOR SRI. VENKATA REDDY.CM.,ADVOCATE)

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NC: 2024:KHC:11723 WP No. 1812 of 2024

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THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 25.10.2023, PASED BY THE II - ADDITIONAL CIVIL JUDGE AND JMFC AT KOLAR, IN O.S.NO.444/2015, PASSED ON IA-13, UNDER ORDER VI RULE 17 R/W SECTION 151 OF CPC, FOR AMEND THE PLAINT, VIDE ANNEXURE-A AND CONSEQUENTLY TO SET ASIE THE ORDER DTD 25.10.2023 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC AT KOLAR, IN O.S.NO.444/2015, PASSED ON IA 13, UNDER ORDER VI RULE 17 R/W SECTION 151 OF CPC, FOR AMEND THE PLAINT, BY ALLOWING THE IA 13, IN ITS ENTIRETY BY ALLOWING THE ABOVE PETITION.

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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 petition by the plaintiff in O.S.No.444/2015 on the file of the II Addl. Civil Judge & JMFC, Kolar is directed against the impugned order dated 25.10.2023 whereby the application I.A.No.13 filed by the petitioner-plaintiff under Order 6 Rule 17, CPC for amendment of the plaint by incorporating additional prayer for declaration and corresponding pleadings in this regard was rejected by the Trial Court.

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A perusal of the material on record will indicate that the petitioner-plaintiff instituted the aforesaid suit against the respondents-defendants for permanent injunction and other reliefs in relation to the suit schedule immovable properties. The said suit is being contested by the respondents-defendants.

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3 - NC: 2024:KHC:11723 WP No. 1812 of 2024

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After commencement of trial, petitioner-plaintiff filed the instant application seeking amendment of the plaint by incorporation of a additional prayer for declaration of title as well as corresponding pleadings in this regard. The said application having been opposed by the respondents-defendants, the Trial Court proceeded to pass the impugned order rejecting the application, aggrieved by which the petitioner-plaintiff is before this Court by way of the present petition.

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A perusal of the impugned order will indicate that the Trial Court has rejected the application on the ground that the additional prayer for declaration as barred by limitation and that the application amendment is barred by delay and latches. The Trial Court has also come to the conclusion that the petitioner had not exercised due to diligence in filing the application within the prescribed period. In my considered opinion, the said reasoning of the Trial Court and finding recorded by it is contrary to the judgment of the Apex Court in the case of Sampath Kumar v Ayyakannu and Ors. – AIR 2002 SC 3369 and L.C. Hanumanthappa v H.B. Shivakumar – (2016) 1 SCC 332 and reiterated in the case of Life Insurance Corporation of India v

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4 - NC: 2024:KHC:11723 WP No. 1812 of 2024

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Sanjeev Builders Private Limited and Ors – AIR 2022 SC 4256

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wherein it is held, the proposed amendment is sought to be opposed on the ground of limitation, delay and latches, the proper course of action would be to permit/allow the amendment by directing that the amendment shall not relate back to the date of the suit, but shall be reckoned/considered from the date of filing the application. In the instance case, it is an undisputed fact that the suit was filed in the year 2015 and application was filed on 08.06.2023 and consequently, rather than dismissing the application as barred by limitation, the proper course of action would be to allow the application and permit the amendment by directing the proposed amendment shall not relate back to the date of the suit but shall be reckoned/considered from 08.06.2023, from the date on which the application was filed and by leaving the question of limitation to be decided along with other issues in the suit.

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The Trial Court also committed an error in coming to the conclusion the proposed amendment was not relevant or necessary to decide the issues in controversy between the parties. In this context, in the light of the judgment of Apex Court in the

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5 - NC: 2024:KHC:11723 WP No. 1812 of 2024

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case of Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors –

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AIR 2006 SC 1647 wherein it is held while deciding application for amendment, the merits / demerits proposed amendment cannot be gone into, I am of the view that the Trial Court clearly erred in rejecting the applications by adverting that the merits of the contentions of the parties and on this ground also, the impugned order deserves to be set aside.

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The material on record discloses that the parties have been litigating from 1971 and present case falls within a category “Rarest of Rare / exceptional circumstances” which warrant exercise of my jurisdiction under the Article 227 of Constitution of India by directing the Trial Court to dispose of the suit within a stipulated time frame.

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In the result, I pass the following:

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ORDER

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(i) The petition is hereby allowed.

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(ii) The impugned order dated 25.10.2023 in

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O.S.No.444/2015 on the file of the II Addl. Civil Judge & JMFC, Kolar, is hereby set aside.

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NC: 2024:KHC:11723 WP No. 1812 of 2024

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(iii) I.A.No.13, stands allowed subject to the condition that

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the proposed amendment shall not relate back to the date of the suit but shall be reckoned/considered from the date of filing the application on 08.06.2023.

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(iv) Liberty is reserved in favour of the respondent to file additional written statement and take up all contentions including the defence of limitation.

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(v) All rival contentions on all aspects of the matter including the limitation, are kept open and no opinion is expressed on the same. Having regard to the long pendency between the parties which commenced in the year 1971, I deem it just and appropriate to direct the Trial Court to dispose of the suit in accordance with law on or before 20.12.2024.

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SD/JUDGE

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DHA List No.: 1 Sl No.: 11.2

Sri Ramappa v. Smt Thimmakka

Case brief

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Sri Ramappa v. Smt Thimmakka

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