Plaintiffs in a partition suit sought amendment of the plaint to include a property sold in 1987 and to implead its purchasers. The High Court held the plaintiff knew of the sale from the 2010 written statement yet applied only in 2015, failing due diligence after commencement of trial, and dismissed the writ petition.
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NC: 2024:KHC:20335 WP No. 46037 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 46037 OF 2016 (GM-CPC)
BETWEEN:
SRI. VENKATESHAPPA, S/O LATE MUNISWAMAPPA, AGED ABOUT 58 YEARS, R/AT BHUVANAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT.
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
(BY SRI.M.SUHAS GOWDA, ADVOCATE)
AND:
…PETITIONERS
2a. SMT.CHINNAMMA W/O.LATE CHIKKALAPPA AGED ABOUT 38 YEARS R/AT NARAYANAPURA KUNCHATTALLI TEKAL HOBLI, MALUR TALUK KOLAR DISTRICT
NC: 2024:KHC:20335 WP No. 46037 of 2016
AGED ABOAUT 51 YEARS,
RESPONDENTS 4 TO 9 ARE RESIDING AT BYRATHNAHALLI VILLAGE, TEKAL HOBLI, MALUR TALUK- 563 130
…RESPONDENTS
(BY SRI. S.VISWESWARAIAH, ADVOCATE FOR R3 SRI.H.M.KISHORE KUMAR, ADVOCATE FOR R4, R7 & R8 PRAPOSED R2A SERVED AND UNREPRESENTED V/O/DATED: 27.03.2024- NOTICE TO R2B IS HELD SUFFICIENT R2B- SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 20.07.2016 AT ANNEXURE-A PASSED BY THE PRL. CIVIL JUDGE (JR. DVN) & JMFC AT MALUR IN O.S.432/2006 REJECTING I.A.NOS.11 & 12 FILED BY THE PETITIONER AT ANNEXURE-D AND E RESPECTIVELY AND DIRECT THE TRIAL COURT OT CONSIDER THE APPLICATION MADE BY THE PETITIONER UNDER I.A. NOS.11 & 12.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present writ petition is filed aggrieved by the orders passed in I.A.Nos.11 and 12 in O.S.No.432/2006 on the file of the Principal Civil Judge (Jr. Divn) & JMFC at Malur.
the suit. The suit is filed for partition and separate possession of the suit scheduled properties. The original plaintiff died and the petitioners before this Court are the legal representatives of the original plaintiff. They have filed two applications. One
NC: 2024:KHC:20335 WP No. 46037 of 2016
application is filed under Order VI Rule 17 of CPC for the amendment of the plaint and the other application is filed under Order I Rule 10 of CPC to implead the subsequent purchases of
the joint family property as defendants to the suit. Both these applications came to be dismissed by the Court below.
NC: 2024:KHC:20335 WP No. 46037 of 2016
allowed, it would cause irreparable loss and hardship to the plaintiff.
observed that the property was alienated in the year 1987 itself and the suit is filed in the year 2006 and the proposed amendment is not within the law of limitation and further, the plaintiff has not mentioned any cogent reasons as to why he has not included the said property at an earliest point of time. This application is filed in the year 2015, after commencement of trial. The Court below had observed that the plaintiff could not make out any case of exercising due diligence in bringing the proposed pleadings at an earliest point of time and accordingly, rejected I.A.No.11 and consequently, I.A.No.12 was also rejected.
now by amending the plaint and by impleading the subsequent purchasers, no prejudice would be caused to the defendant. The Court below had failed to consider these facts. It is submitted that when he has made out a case, though the trial has commenced, still the Court below ought to have allowed the I.A. filed for amendment of the plaint. It is submitted that the Court below had failed to consider any of the grounds that are raised by the plaintiff in support of the said application.
perused the entire material on record. The application that is filed under Order VI Rule 17 seeking amendment of the plaint
on the ground that they are not aware of a particular sale transaction that has taken place in the year 1987 in respect of a joint family property. Now, they want to add that property which is sold in the year 1987 as part of the suit schedule property and also implead the purchaser of the said property. It is well settled legal position pertaining to the amendment of the plaint that after commencement of the trial, the amendment of the plaint cannot be allowed unless and until the Court is satisfied that in spite of the due diligence, the said facts could not be pleaded by the plaintiff. In this case, according to the plaintiff, in the affidavit that is filed in support of the I.A., it is submitted that they came to know about the said transaction recently and immediately they have come up with the application. This Court has perused the written statement filed by defendant No.3 wherein they have mentioned about the sale transaction in the written statement that is filed on 06.02.2010.
It is very clear that the plaintiff is aware of this transaction by
06.02.2010 itself. Why he has not taken any steps for amendment of the plaint right from the year 2010 to 2015 is not known and the affidavit that is filed by the plaintiff is silent. The Court below had rightly observed that the plaintiff could not satisfy the Court that in spite of due diligence, these facts could not be placed on record or such an amendment could not be sought at an earliest point of time.
i. Accordingly, the writ petition is dismissed. Pending
I.A.s, if any shall stand disposed off.
MEG List No.: 1 Sl No.: 8
SD/JUDGE
2 issues framed by the court
Whether the trial court rightly rejected the application to amend the plaint under Order VI Rule 17 CPC filed after commencement of trial without due diligence.
Whether subsequent purchasers of joint family property could be impleaded under Order I Rule 10 CPC.
2 provisions across 1 enactments
Sri Muniswamappa since deceased by his LRs (Venkateshappa, Bangappa)
Sri Thimmarayappa
Smt. Gangamma (since dead) represented by LRs
Smt. Sumangala
Sri Venkatappa
Sri Srinivasappa
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
