Dismissed

Smt Rathnamma v. Smt Annemma

Karnataka HC16 Dec 2024WP/33693/2024

Case brief

AI extract

What is this about?

Defendants in a partition suit sought to amend their written statement to allege a power of attorney and resulting sale deed were procured fraudulently. The trial court rejected the application as the defendants had already admitted executing the power of attorney. The High Court dismissed the writ petition, upholding the rejection.

What did the court decide?

None granted; liberty reserved to raise the same contentions in any appeal against the trial court's judgment.

Smt Rathnamma Vs Smt Annemma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:52051 WP No. 33693 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 33693 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. RATHNAMMA W/O LATE MUNIRAJU AGED ABOUT 55 YEARS

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SMT. SHOBHA D/O LATE MUNIRAJU AGED ABOUT 39 YEARS

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VENKATESH S/O LATE MUNIRAJU AGED ABOUT 32 YEARS

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SRI. KRISHNAPPA S/O LATE MUNISWAMAPPA AGED ABOUT 60 YEARS

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. RAMYA D/O KRISHNAPPA AGED ABOUT 33 YEARS

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SRI. AJAY S/O KRISHNAPPA AGED ABOUT 30 YEARS

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SRI. VIJAY S/O KRISHNAPPA AGED ABOUT 30 YEARS

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PETITIONERS NO.1 TO 7 ARE R/AT HUNSMARANHALLI VILLAGE, HUNSMARANHALLI POST, JALA HOBLI,

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NC: 2024:KHC:52051 WP No. 33693 of 2024

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BANGALORE NORTH TALUK, BANGALORE-562 157.

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…PETITIONERS

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(BY SRI. PUTTARAJA C.P., ADVOCATE)

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AND:

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SMT. ANNEMMA W/O LATE RAMAIAH D/O LATE MUNISWWAMAPPA AGED ABOUT 62 YEARS

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SRI. A. MANJUNATHA S/O ANJENAPPA AGED ABOUT 42 YEARS

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RESPONDENTS 1 AND 2 ARE R/AT KODAGALAHATTI VILLAGE JALA HOBLI, HUNSMARENAHALLI POST BANGALORE NORTH TALUK BANGALORE-562 157.

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SRI. MANOHAR K., S/O LATE KRISHNEGOWDA AGED ABOUT 38 YEARS R/AT NO.08, GROUND FLOOR, PARK ROAD, CHINNAPPA LAYOUT, HEBBAL KEMPAPURA, BANGALORE-560024.

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SRI. VENKATASWAMY S/O LATE MUNISWWAMAPPA AGED ABOUT 70 YEARS

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SRI. DEVARAJ S/O VENKATASWAMY AGED ABOUT 44 YEARS

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SRI. SRINIVAS S/O VENKATASWAMY AGED ABOUT 42 YEARS

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3 - NC: 2024:KHC:52051 WP No. 33693 of 2024

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SMT. JAYALAKSHMI D/O VENKATASWAMY AGED ABOUT 40 YEARS

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RESPONDENT NO.4 AND 7 ARE R/AT HUNSMARANHALLI VILLAGE, HUNSMARANHALLI POST, JALA HOBLI, BANGALORE NORTH TALUK, BANGALORE-562 157.

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…RESPONDENTS (BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR CAVEATOR/RESPONDENT NO.1)

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THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 05.12.2024 AT ANNEXURE-K PASSED LEARNED 1^ST ADDITIONAL SENIOR CIVIL JUDGE AT DEVANAHALLY ON I.A.NO.18 IN O.S.NO.4/2009 ON APPLICATION UNDER ORDER 6 RULE 17 OF CODE OF CIVIL PROCEDURE.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The legal representatives of the defendant No.2, namely, defendant Nos.2(a) to 2(c), defendant Nos.3, 8, 9 and 10 in O.S. No.4/2009 on the file of the I Additional Senior Civil Judge, Devanahalli, (henceforth referred to as 'the Trial Court') are before this Court challenging an order dated 05.12.2024, by which an application (I.A. No.XVIII) filed by the defendant

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NC: 2024:KHC:52051 WP No. 33693 of 2024

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Nos.1 to 10 under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') was rejected.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. Petitioner Nos.1 to 7 were defendant Nos.2(a), 2(b), 2(c), 3, 8, 9, 10 respectively while respondent Nos.1, 2, 3, 4, 5, 6 and 7 were the plaintiff, defendant Nos.11, 12, 1, 4, 5 and 6 respectively, before the Trial Court.

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The suit in O.S No.4/2009 was filed for partition of

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the suit schedule properties and to declare that the agreement of sale dated 28.02.2014 executed by the defendant Nos.1 to 10 in favour of defendant No.11 is not binding on the plaintiff’s share. The defendants contested the suit and claimed that the plaintiff is not entitled to any share in the suit schedule properties. They also claimed that there was an earlier partition dated 15.10.2008 and hence, the plaintiff is not entitled to any share. They also claimed that the plaintiff and defendant No.11 committed a fraudulent act in executing a sale deed in favour

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NC: 2024:KHC:52051 WP No. 33693 of 2024

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of defendant No.12 on 02.11.2022. They contended that the said sale deed is not binding upon them.

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Based on these contentions, the suit was set down for trial. During the course of the trial, the witness for the defendants i.e., DW.1 was confronted with a power of attorney dated 28.02.2014 executed by the defendant Nos.1 to 10 in favour of defendant No.11. The witness for the defendants admitted the execution of the power of attorney but contended that the same was concocted. It was based on this power of attorney that the sale deed dated 02.11.2022 was executed in favour of defendant No.12 in respect of suit item No.4 property.

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The defendant Nos.1 to 10 consequently filed an application (I.A No.XVIII) to amend their written statement to incorporate para No.17(b) to contend that the aforesaid power of attorney was obtained by defendant No.11 fraudulently and therefore, the same is not binding upon them. They also contended that the consequent sale deed dated 02.11.2022 executed in favour of the defendant No.12 was also fraudulent and did not bind their interest over the suit item No.4 property.

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NC: 2024:KHC:52051 WP No. 33693 of 2024

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The said application was contested by the plaintiff consequent to which the Trial Court rejected the application (I.A. No.XVIII) in terms of the impugned order.

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Being aggrieved by the impugned order, the legal representatives of the deceased defendant No.2, defendant Nos.3, 8 to 10 are before this Court in this writ petition.

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Learned counsel for the defendant Nos.2(a), 2(b), 2(c), 3, 8 to 10 contended that the defendant Nos.1 to 10 were not aware of the power of attorney dated 28.02.2014 until the said document was confronted to their witness during the course of cross-examination. He therefore contended that the defendant Nos.1 to 10 were entitled to question the power of attorney dated 28.02.2014 by raising additional pleadings in the written statement.

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Per contra, the learned counsel for the plaintiff contended that the plaintiff had filed an application – I.A. No.13 to delete the suit item No.4 in view of the sale deed executed on 02.11.2022. He submitted that in response to the said application, the defendant Nos.1 and 3 filed their objections admitting the execution of the power of attorney dated

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NC: 2024:KHC:52051 WP No. 33693 of 2024

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28.02.2014. Therefore, he contends that the defendants cannot now resile from that statement and contend that they were not aware of the power of attorney dated 28.02.2014 until it was confronted to their witness. He, therefore, contends that the application filed by the defendant Nos.1 to 10 was not genuine and bona fide but it was an attempt to protract the proceedings and delay the outcome of the suit.

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I have considered the submissions of the learned counsel for the defendant Nos.2(a), 2(b), 2(c), 3, 8 to 10 and the learned counsel for the plaintiff.

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It is not in dispute that the defendants admitted the execution of the power of attorney during the course of the cross-examination of their witness. It is also not in dispute that the defendant Nos.1 and 3 in their objections to I.A No.13 admitted the execution of the said power of attorney. Therefore, the defendant Nos.1 to 10 could not have waited the case to move on to the stage of final arguments to file an application (I.A No.XVIII) for amendment of the written statement to contend that the said general power of attorney executed in favour of defendant No.11 and the consequent sale

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NC: 2024:KHC:52051 WP No. 33693 of 2024

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deed dated 02.11.2022 executed in favour of defendant No.12 were not binding upon them. The Trial Court has considered the contentions of the parties in the right perspective and has held that the amendment sought by defendant Nos.1 to 10 in I.A. No.XVIII was not genuine and bona fide , but was designed to delay and protract the proceedings.

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Hence, this writ petition lacks merit and the same is dismissed. However, liberty is reserved to the petitioners herein to raise the contentions urged in this petition in any appeal that may be filed by them against any judgment that may be passed by the Trial Court.

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Sd/(R. NATARAJ) JUDGE

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SMA

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List No.: 1 Sl No.: 72

Smt Rathnamma v. Smt Annemma

Case brief

What is this about?

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Smt Rathnamma v. Smt Annemma

Case brief

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