Dismissed

Rudraiah v. Smt. Channamma

Karnataka HC1 Feb 2024WP/24966/2016

Case brief

AI extract

What is this about?

Plaintiff in a pending partition suit sought to reopen evidence, recall PW-1, produce a panchayath vibhaga patra, and amend the plaint to plead a family partition. The High Court held the unregistered, insufficiently stamped document was inadmissible and the pleas mutually destructive, and dismissed the writ petition.

What the court decided

AI extract

Rudraiah Vs Smt. Channamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:4374 WP No. 24966 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 24966 OF 2016 (GM-CPC)

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BETWEEN:

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RUDRAIAH, S/O. LATE MALE GOWDA, AGED ABOUT 59 YEARS, R/O GULAGHATTA VILLAGE, KASABA HOBLI, MALAVALLI TALUK,

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…PETITIONER

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(BY SRI: H.V. RAMACHANDRA RAO, ADVOCATE)

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AND:

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Digitally signed by PAVITHRA N Location: high court of karnataka

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SMT. CHANNAMMA, W/O MALE GOWDA, DEAD BY LRS,

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1(A) MAYAMMA, W/O LATE BASAVE GOWDA, AGED ABOUT 75 YEARS, R/AT GULAGHATTA VILLAGE, KASABA HOBLI, MALAVALLI TALUK,

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MAYAPPA, S/O LATE MALE GOWDA, AGED ABOUT 62 YEARS, R/AT GULAGHATTA VILLAGE, KASABA HOBLI, MALAVALLI TALUK,

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SMT. MARAGAMMA W/O KULLE GOWDA, AGED ABOUT 70 YEARS, R/AT GULAGHATTA VILLAGE, KASABA HOBLI, MALAVALLI TALUK,

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SMT. M. MAHENDRI W/O. M.K. GOPAL, D/O. MAYAPPA,

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NC: 2024:KHC:4374 WP No. 24966 of 2016

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AGED ABOUT 38 YEARS, R/AT MAKANAHALLI VILLAGE, T.N. PURA TALUK, MYSORE DISTRICT.

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…RESPONDENTS

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(R1 (A) IS SERVED AND UNREPRESENTED

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SRI: VEERESHA .K., FOR

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SRI: H.B. CHANDRASHEKAR, ADVOCATES FOR R2 TO R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.3.3.2016 PASSED BY THE SENIOR CIVIL JUDGE, MALAVALLI, ON I.A.NO.28 VIDE ANNEX-A, A1 TO A29 ANNEX-B, ANNEX-C-31, ANNEX-D 32 AND ANNEX-E 33 IN O.S.NO.21/2006 PASSED BY THE SENIOR CIVIL JUDGE, MALAVALLI, AND ALLOW THE SAID I.AS. AND PERMIT THE PETITIONER TO PLEAD THE SUBSEQUENT EVENT ADVERTED TO ALREADY AND ETC.,

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THIS WRIT PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The plaintiff in O.S.No.21/2006 on the file of the learned Senior Civil Judge and JMFC, Malavalli (hereinafter referred to as ‘the trial Court’ for brevity), is impugning the order dated 03.03.2016 passed on IA Nos.28, 29, 31 and 32 and also the order passed on IA No.33 dismissing all those applications.

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Heard Sri H.V.Ramachandra Rao, learned counsel for the petitioner and Sri Veeresha K., learned counsel for respondent Nos.2 to 4. Perused the materials on record.

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Learned counsel for the petitioner contended that the petitioner as plaintiff, filed the suit O.S.No.21/2006 for

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NC: 2024:KHC:4374 WP No. 24966 of 2016

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partition and separate possession of the suit properties. The plaintiff led his evidence by examining himself as PW-1. Later, since he came to know about the panchayath vibhaga patra entered into between the parties to the suit, filed I.A.Nos.28 and 29 to reopen the case and to recall PW-1 for the purpose of leading further evidence. Those applications came to be allowed by the trial Court vide order dated 04.01.2016. Cost of Rs.100/- was imposed on those applications and the cost is already paid. Thus, the order passed on I.A.Nos.28 and 29 has reached finality.

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Learned counsel submitted that the plaintiff filed I.A.Nos.31 to 33 by producing additional list of witnesses, to produce additional documents and to amend the plaint. These applications were again considered along with I.A.Nos.28 and 29 and the trial Court proceeded to dismiss all the five applications without any basis. When the trial Court already allowed I.A.Nos.28 and 29 vide order dated 04.01.2016 subject to payment of cost and even the cost is paid, the trial Court could not have rejected the same.

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Learned counsel submitted that an additional

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document styled as panchayth vibhaga patra is produced

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NC: 2024:KHC:4374 WP No. 24966 of 2016

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before the Court and on the basis of the same, the plaint was required to be amended. Therefore, I.A.No.33 was filed. The trial Court without assigning any reasons and without providing any opportunity to the plaintiff, rejected the application. Therefore, the plaintiff is before this Court.

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Learned counsel submitted that since rejection of these applications amount to refusing of an opportunity to the plaintiff to put forth his contention, the applications may be allowed by permitting him to lead additional evidence in the interest of justice. Accordingly, he prays for allowing the petition and to set aside the impugned order by allowing the said applications.

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Per contra, learned counsel for respondent Nos.2 and 4 opposing the petition submitted that the petitioner has filed the suit during 2006 taking specific contention that there was no partition in the family and he is entitled for share. Later, he filed the application seeking amendment of the plaint in I.A.No.33 contending that there was a partition entered into between the parties to which the plaintiff is also a party. The said partition deed was executed on 22.06.2004 i.e., much earlier to filing of the suit. Under such circumstances, the

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NC: 2024:KHC:4374 WP No. 24966 of 2016

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plaintiff was not entitled to file and maintain the suit for partition.

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Learned counsel further submitted that admittedly the said partition deed now relied on by the plaintiff is not a registered document. It is insufficiently stamped. Under such circumstances, the same is not admissible in evidence. When the plaintiff is not entitled to rely on the said document, nor he is entitled to amend the plaint which would amount to taking inconsistent plea. The trial Court rightly rejected all the applications.

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Learned counsel submitted that the order dated 04.01.2016 was a cryptic order without assigning any reason. But, the subsequent order passed by the trial Court is a well reasoned order where it is rightly held that when the plaintiff is not entitled for amendment, nor he is entitled to rely on the unregistered and unstamped document, PW-1 is not entitled for recalling for the purpose of leading further evidence. There are no reasons to interfere with the impugned order passed by the trial Court. Hence, he prays for dismissal of the petition.

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NC: 2024:KHC:4374 WP No. 24966 of 2016

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The plaintiff filed the suit O.S.No.21/2006 during 2006 with a specific contention that the suit properties are the family properties and he is entitled for a share in the same. Surprisingly, about ten years later, he filed applications I.A. Nos.28 and 29 seeking to reopen the case and to recall PW-1 for the purpose of further examination. The applications state that I.A.Nos.28 and 29 were filed by the plaintiff to adduce additional evidence only on the basis of the panchayath palupatti referred to by him in the subsequent applications. In the affidavit accompanying I.A.No.28 it is stated that there is panchayath vibhagha patra which was misplaced by him in his house and he found it recently and therefore, he is to be recalled to lead further evidence. It is not the contention of the plaintiff that he wanted to lead further evidence on any other document or any other fact.

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The plaintiff filed I.A.No.31 under Order VII Rule 14(3) of CPC on 07.01.2016, producing the said panchayath palupatti. I.A.No.33 was filed seeking amendment of the plaint contending that way back in 22.06.2004, there was a panchayath in the family to which, all the parties to the suit were parties. They mutually compromised the matter and the

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NC: 2024:KHC:4374 WP No. 24966 of 2016

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terms of the compromise were reduced into writing. Admittedly, the said document is neither registered, nor sufficiently stamped. Under such circumstances, learned counsel for the petitioner has not made it clear as to how he can rely on the said document.

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The contention taken by the plaintiff is to be considered from a different angle. When it is the contention now taken by the plaintiff that there was a panchayath vibhagha patra dated 22.06.2004, where all the parties to the suit have partitioned and consented for partition, how the plaintiff is entitled to maintain his suit for partition is not clarified by learned counsel for the plaintiff. On the other hand, the only contention that he has taken is, since the trial Court has already allowed I.A.Nos.28 and 29 and even the cost is already paid, the trial Court could not have proceeded to dismiss I.A Nos.28 and 29. But, on perusal of the contentions taken by the plaintiff in the affidavit accompanying all these applications, it is found that the plaintiff intends to depose only on this panchayath vibhaga patra dated 22.06.2004 which is prima-facie not admissible in law. If the said applications are allowed and the document is taken on record, the plaintiff could

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NC: 2024:KHC:4374 WP No. 24966 of 2016

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not maintain his suit for partition and separate possession. Under such circumstances, allowing production of the document and allowing the plaintiff to amend the plaint would amount to permitting the plaintiff to take inconsistent pleas which are mutual destructive in nature, which is not permissible under law. Therefore, I am of the opinion that the plaintiff cannot take such inconsistent and contradictory pleas by filing the applications either to produce the documents or to amend the plaint. When he cannot be permitted either to plead such facts in the pleading or to produce the documents, question of recalling the witness for the purpose of further evidence does not arise.

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It is relevant to state that the order dated 04.01.2016 passed initially on I.A.Nos.28 and 29 is a cryptic order without assigning any reason. But, the later order is a reasoned one. Therefore, I do not find any merit in the contention taken by the petitioner. Accordingly, petition is dismissed .

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PN: List No.: 1 Sl No.: 2

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Sd/JUDGE

Rudraiah v. Smt. Channamma

Case brief

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Rudraiah v. Smt. Channamma

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