Dismissed

Vijayalaxmi W/O Vishwanath Gogi v. Kamalabai W/O P Nagashetty and Ors.

Karnataka HC3 Jan 2024WP/216417/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka rejected a Writ Petition challenging the Trial Court's order dismissing an application to amend a written statement. The Court held that the amendment lacked merits as the essential facts regarding a gift deed were not pleaded timely.

What did the court decide?

The Writ Petition filed under Articles 226 and 227 of the Constitution of India was rejected.

Vijayalaxmi W/O Vishwanath Gogi Vs Kamalabai W/O P… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-K:97 WP No. 216417 of 2020

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 3^RD DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.216417 OF 2020 (GM-CPC)

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BETWEEN:

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VIJAYALAXMI W/O VISHWANATH GOGI, AGED ABOUT: 58 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, R/O: JEWARGI, TQ: JEWARGI, DIST: KALABURAGI. (BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)

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…PETITIONER

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AND:

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Digitally signed by VARSHA N RASALKAR Location: HIGH COURT OF KARNATAKA

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KAMALABAI W/O P.NAGASHETTY, AGE: 68 YEARS, OCC: RETIRED EMPLOYEE, R/O H. NO.1-80 MAHAVEER NAGAR, BEHIND KOTHARI BHAVAN, JEWARGI ROAD, KALABURAGI-585 102.

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DEVAKKI W/O APPASAHEB SIROOR, AGE: 64 YEARS, OCC: HOUSEHOLD, R/O H NO 2-910, DOCTOR’S COLONY, JAYANAGAR, SEDAM ROAD, KALABURAGI-585 102.

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SMT. SIDDAMMA W/O BASANAGOUDA, AGE: 73 YEARS, OCC: AGRICULTURE,

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NC: 2024:KHC-K:97 WP No. 216417 of 2020

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R/O JEWARGI-B TQ. JEWARGI, DIST. KALABURAGI-585 310.

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MANJUNATH S/O VISHWANATH GOGI, AGE: 38 YEARS, OCC: PRIVATE EMPLOYEE, R/O JEWARGI, DIST. KALABURAGI-585 310.

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SUHASINI @ PUTTAMMA, D/O VISHWANATH, W/O SHARANAGOUDA JAVALAGI, AGE: 36 YEARS, OCC: HOUSEHOLD, R/O JEWARGI, DIST. KALABURAGI-585 310.

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…RESPONDENTS

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(BY SRI.B.BHIMASHANKAR., ADVOCATE FOR R2; NOTICE TO R1, R3 AND R4 SERVED & UNREPRESENTED; NOTICE TO R5 DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.

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THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri.Shivakumar Kalloor., learned counsel for the petitioner, and Sri.B.Bhimashankar., learned counsel for respondent No.2 have appeared in person.

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Emergent notice to respondents was ordered on 13.02.2020. A perusal of the office note depicts that

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3 - NC: 2024:KHC-K:97 WP No. 216417 of 2020

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respondents 1, 3 & and 4 are served and unrepresented. They have neither engaged the services of an advocate nor conducted the case as a party in person. Hence, this Court proceeds to pass orders on the merits of the case.

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3. The brief facts are these:

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Respondents 1 and 2 being the plaintiffs before the Trial Court, filed a suit seeking the relief of Partition and Separate Possession in respect of suit schedule properties on the file of Senior Civil Judge, Jewargi in O.S.No.38/2018. After the service of the suit summons, the petitioner - Vijayalaxmi being the second defendant appeared through her counsel and filed a written statement on 05.09.2018 and denied the contents of the plaint averments and sought for dismissal of the suit.

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During the pendency of the suit, the second defendant applied to Order 6 Rule 17 R/w Section 151 of CPC to permit her to amend the written statement. She sought the amendment as under:

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NC: 2024:KHC-K:97 WP No. 216417 of 2020

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“PROPOSED AMENDMENT

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It may be inserted in para No.4 of the written statement in the fifth line of said para after the word Basavantraya it may be added “It is submitted that deceased Basavantraya S/o.Shanmukhappa Gogi during his lifetime in the year 1970 voluntarily executed a Regd. Gift Deed bearing Doc. No.727/1970-71 dated 08.10.1970 in respect of suit property items No.1 & 2 in favor of Vishwanath Gogi who is the husband of defendant No.2 and also the natural father of defendant No.3 & 4 by Regd. Gift Deed deceased Vishwanath Gogi was in the enjoyment of said suit property, now after his demise defendant No.2 who is the legally wedded wife of deceased Vishwanath Gogi became the absolute owner and possessor of Item No.1 & 2 of suit schedule properties with least concerned to anybody”.

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The plaintiffs filed objections to the application and contended that the case had been posted for the defendant’s evidence and among other grounds they sought for the dismissal of the application. The Trial Court vide order dated

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5 - NC: 2024:KHC-K:97 WP No. 216417 of 2020

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09.12.2019, rejected the application. It is this order that is called into question in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition.

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Learned counsel for the petitioner and respondent No.2 have urged several contentions. Heard the contentions urged on behalf of the respective parties and perused the Writ papers with utmost care.

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Learned counsel Sri.Shivakumar Kalloor placed reliance on the decision in USHA BALASAHEB SWAMI AND OTHERS Vs. KIRAN APPASO SWAMI AND OTHERS reported in 2007 SAR (Civil) 431.

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The point that requires consideration is whether the Trial Court is justified in rejecting the application.

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The facts are sufficiently stated and do not require reiteration. Suffice it to note that the suit is one for Partition and Separate Possession. The second defendant filed a detailed written statement. The true copy of the written statement is furnished in the Writ Petition and the same is marked as Annexure-B. A perusal of the contents of the written statement depicts that a detailed written statement has been filed by the

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second defendant and except for denying the plaint averments, nothing has been stated by her.

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It is relevant to note that the second defendant filed a written statement on 05.09.2018. On 15.07.2019, she moved an application under Order 6 Rule 17 R/w Section 151 of CPC to permit her to amend the written statement to add that her father-in-law Sri.Basavantraya during his lifetime has executed a registered Gift Deed in favor of her husband and also her children on 08.10.1970 in respect of suit Item Nos.1 and 2 and contended that she is the legally wedded wife of Sri.Vishwanath Gogi and after his demise, she has become the absolute owner of Item Nos.1 and 2 of suit schedule properties. The application is furnished along with Writ Petition and the same is marked as Annexure-C. A perusal of the same would reveal that Smt.Vijayalaxmi – the second defendant has sworn an affidavit. Perused the affidavit with utmost care. She has sworn to a declaration of facts stating that she intends to carry out some amendment in paragraph No.4 of the written statement. It is also stated by her that after obtaining certain documents in respect of the suit properties, it is essential for her to carry out amendments in the written statement as proposed in a

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NC: 2024:KHC-K:97 WP No. 216417 of 2020

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separate petition. Except for saying that it is essential for her to carry out the amendment, there is no whisper about the Gift Deed and the date of knowledge of the deed.

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The law is well-settled that whenever the application moved by a party for the amendment of the pleadings specifically shall set out which portion of the original pleadings were sought to be deleted and what were the averments which were sought to be added or substituted in the original pleadings. Simply giving a vague idea of the nature of the intended amendment and then annexing a new written statement with the application to be substituted in place of the original written statement is not enough. Such a course is strange and unknown to the procedure of amendment of pleadings. Needless to say, when the execution of the document is within the knowledge of the party, the same has to be pleaded at the time of filing of the pleadings.

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Reverting to the facts of the case, the second defendant contends that she is the legally wedded wife of Sri.Vishwanath Gogi and her father-in-law Sri.Basavantraya executed a Gift Deed in favor of Vishwanath Gogi and

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defendants 3 & 4 back in the year 1970-71 i.e., on 08.10.1970. There is nothing on record to show that the execution of the Gift deed was not within the knowledge of the second defendant. She has not even pleaded the execution of the Gift Deed was not within her knowledge. Furthermore, the application was filed at the time of the defendant’s evidence. The Trial Court extenso referred to the material on record and rightly rejected rejecting the application. I find no grounds to interfere with the order passed by the Trial Court.

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Learned counsel for the petitioner has placed reliance on the decision referred to supra. I do not think that the law is in doubt. Each decision turns on its facts. The present case is also tested in light of the aforesaid decision.

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For the reasons stated above, the Writ Petition is devoid of merits and it is liable to be rejected.

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Resultantly, the Writ Petition is rejected.

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TKN/VNR

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List No.: 2 Sl No.: 13

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Sd/JUDGE

Vijayalaxmi W/O Vishwanath Gogi v. Kamalabai W/O P Nagashetty and Ors.

Case brief

What is this about?

What did the court decide?

Vijayalaxmi W/O Vishwanath Gogi v. Kamalabai W/O P Nagashetty and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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