Dismissed

Sri S Lokesh Reddy v. Smt Neelamma

Karnataka HC13 Feb 2024WP/4731/2016

Case brief

AI extract

What is this about?

In this writ petition under Article 226, the petitioner, who was a defendant in a partition suit filed in 1992, sought to quash the trial court's order rejecting an application to amend the written statement. The application, filed 23 years after the suit due to new documents, was dismissed for lack of legal basis and inordinate delay. The High Court, finding the delay unjustified and noting the a

What the court decided

AI extract

Sri S Lokesh Reddy Vs Smt Neelamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:6166 WP No. 4731 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 4731 OF 2016 (GM-CPC)

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BETWEEN:

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SRI S LOKESH REDDY S/O SRINIVASA REDDY AGED ABOUT 65 YEARS, R/AT NO.8/3, 'RAJESWARI NAILAYA', KAGGADASAPURA MAIN ROAD C.V.RAMAN NAGAR BENGALURU - 560 093.

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…PETITIONER

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(BY SRI. H.R. ANANTHA KRISHNA MURTHY, 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. NEELAMMA W/O SOMA REDDY, D/O LATE SRINIVASA REDDY AGED ABOUT 57 YEARS, R/AT DOOR NO.12/1, OLD POLICE STATION ROAD, 2ND CROSS, NEW MADIWALA, BENGALURU - 560 068.

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SMT. GOWRAMMA W/O LATE SRINIVASA REDDY AGED ABOUT 79 YEARS, R/AT GARVEBHAVAI PALYA, BEGUR HOBLI, BENGALURU SOUTH TALUK, BENGALURU - 560 068.

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NC: 2024:KHC:6166 WP No. 4731 of 2016

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USHA D/O LATE SRINIVASA REDDY AGED ABOUT 39 YEARS,

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SMT. KANTHAMMA D/O LATE SRINIVASA REDDY AGED ABOUT 56 YEARS,

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SMT. SUNANDA D/O LATE SRINIVASA REDDY AGED ABOUT 53 YEARS,

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SMT. SAROJA W/O SURESH REDDY D/O LATE SRINIVASA REDDY, AGED ABOUT 45 YEARS,

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RESPONDENTS NO.3 TO 6 ARE R/AT GARVEBHAVI PALYA, BEGUR HOBLI, BENGALURU SOUTH TALUK, BENGALURU - 560 068.

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SMT. VIMALA W/O AYAPPA REDDY, D/O SRINIVASA REDDY, AGED ABOUT 51 YEARS, R/AT DODDA BANASAWADI BENGALURU - 560 043.

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SMT. BHAGYA W/O MUNI REDDY, D/O LATE SRINIVASA REDDY, AGED ABOUT 49 YEARS, R/AT ALANAYAKANAHALLY, SARJAPURA HOBLI, BENGALURU SOUTH TALUK.

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SRI S SUNDARA RAM REDDY S/O LATE SRINIVASA REDDY AGED ABOUT 63 YEARS, R/AT NO. 68, SOUTH END MAIN ROAD, BASAVANAGUDI, BENGALURU - 560 004.

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SRI AYYAPPA REDDY S/O SRI VENKATA SWAMY, AGED ABOUT 69 YEARS, R/AT MANJUNATHA NILAYAM, NO.442, 10TH MAIN, 2ND CROSS, 1ST BLOCK, KALYANANAGARA, BENGALURU - 560 043.

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SRI K DEEPAK S/O A. KANNAIYA, AGED ABOUT 48 YEARS, R/AT 39/16, 3RD CROSS, KRISHNAMOORTHY LAYOUT, TAVAREKERE MAIN ROAD, BENGALURU - 560 029.

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SRI M.S. SRIVASTHSA S/O M.A. SATHYANARAYANA SETTY, AGED ABOUT 55 YEARS, R/AT NO.593, 4TH A CROSS, 9TH MAIN ROAD, RPC LAYOUT, VIJAYANAGAR II STAGE, BENGALURU - 560 040.

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SRI S N SRINIVASAN S/O LATE S. NARAYANAPPA, AGED ABOUT 67 YEARS, R/AT NO. 15, 4TH CROSS, DRC POST, S.G.PALYA, BENGALURU - 560 029.

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SRI PARSOTTAM BHIMJI PATEL S/O LATE BHIMJI PATEL AGED ABOUT 66 YEARS, R/AT NO. 46/1-9, SHAMANNA REDDY LAYOUT, GARVEBHAVI PALYA, HOSUR ROAD, BENGALURU - 560 068.

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SRI R A GUNASHEKAR S/O R. AYYASWAMY, AGED ABOUT 79 YEARS, R/AT NO.20, 5TH CROSS, SUDHAMNAGAR, BENGALURU - 560 027.

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SRI U N MANJUNATH S/O SRI NINGAIAH, AGED ABOUT 53 YEARS, R/AT NO.1, RANGAPPA STREET, CHIKKAMAVALLI, BENGALURU - 560 004.

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SMT. K. THULASI W/O SRI KARTHIKEYAN, AGED ABOUT 51 YEARS, R/AT NO.502, KRISHNAPPA LAYOUT, BEHIND VENKATESHWARA TEMPLE, KORMANGALA, BENGALURU - 560 095.

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SRI D NANDA KUMAR S/O SRI K.DORESWAMY, AGED ABOUT 58 YEARS, R/AT NO. NANJUNDESHWARA BAKERY HEBBUR, T.K.ROAD, TUMKUR - 572 120.

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SRI M ELUMALAI

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S/O SRI MUNISWAMY GOUNDER, AGED ABOUT 72 YEARS, R/AT NO. 9/22, 2ND MAIN, 1ST BLOCK, JAYANAGAR EAST, BENGALURU - 560 011.

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SRI G.C. ANAND S/O SRI G.N.RAMACHANDRAPPA, AGED ABOUT 66 YEARS, R/AT NO. 41, N.R. LAYOUT, GARVEBHAVIPALYA, HOSUR ROAD, BENGALURU - 560 068.

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SRI G.R. RAMACHANDRA S/O LATE RANGAPPA, AGED ABOUT 67 YEARS, R/AT GOLLHALLI VILLAGE, ATTIBELE HOBLI, ELECTRONIC CITY POST, ANEKAR TALUK, BENGALURU DISTRICT.

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SRI G.LAKSHMAN REDDY S/O GURAPPA REDDY, AGED ABOUT 83 YEARS,

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NC: 2024:KHC:6166 WP No. 4731 of 2016

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R/AT NO.50, MYLASANDRA, BEGUR POST, BENGALURU SOUTH TALUK, BENGALURU - 560 068.

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SRI N KUMAR AGED ABOUT 53 YEARS, R/AT NO.1, SHIVA KRUPA, RANGAPPA LANE, CHIKKAMAVALLI, BENGALURU - 560 004.

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…RESPONDENTS

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(BY SRI. M N MUNIRAJU, ADVOCATE FOR R1; SRI P.M. RAGHURAMA REDDY, ADV. FOR R2, R3, R7 & R8;

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SRI G.K. RAJANNA, ADVOCATE FOR R-5; SRI B.P. MAHENDRA, ADVOCATE FOR R-6; SRI VASANTHAPPA, ADVOCATE FOR R-10;

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SRI D.N. MANJUNATH, ADVOCATE FOR R11;

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SRI M.V. NANJUNDA GOWDA, ADVOCATE FOR R14;

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SRT M. SHIVA PRAKASH, ADVOCATE FOR R2,

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R4, 13, 16, 20, 22, 23 - SERVED UNREPRESENTED;

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R9 PETITION IS ABATED V/O DATED 4.1.2023;

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PETITION AGAINST R12, 15, 17 TO 19 ARE DISMISSED V/O DATED 16.1.2024)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE I ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH NO.2), IN O.S.NO.4203/1992, ON I.A.NO.33 DATED 18.11.2015, VIDE ANNEXURE-E.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Defendant No.9 in O.S.No.4203/1992 on the file of the learned I Additional City Civil and Sessions Judge, Bengaluru City, (CCH-2) (hereinafter referred to as 'the trial Court' for brevity), is seeking to quash the order dated 18.11.2015

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NC: 2024:KHC:6166 WP No. 4731 of 2016

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rejecting IA No.33 filed under Order VI Rule 17 r/w Section 151 of CPC seeking amendment of the written statement and to allow the application.

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Heard Sri H.R. Anantha Krishna Murthy, learned counsel for the petitioner and Sri P.M. Raghurama Reddy, learned counsel for respondent Nos.2, 3, 7 and R8. Perused the materials on record.

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Learned counsel for the petitioner contended that the plaintiff who is respondent No.1 herein filed the suit O.S.No.4203/1992 for partition and separate possession of the suit properties. During the pendency of suit, several documents came to be executed by the defendants. To place all those facts and circumstances and the documents on record, defendant No.9 filed IA No.33 under Order VI Rule 17 of CPC seeking permission to amend the written statement. The said application came to be dismissed by the trial Court solely on the ground that after amendment to CPC w.e.f. 01.07.2002, no application for amendment shall be allowed.

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Learned counsel placed reliance on the decision of the Hon'ble Apex Court in State Bank of Hyderabad Vs.

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Town Municipal Council¹ to contend that the proviso appended to Order VI Rule 17 of CPC came into force w.e.f. 01.07.2002 and therefore, it could not be made applicable to the suits prior to that date. When such is the position of law, the trial Court committed an error in rejecting the application which has resulted in great injustice to the petitioner. On the other hand, no prejudice would be caused to the other side, if the application is allowed. Accordingly, he prays for allowing the petition.

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Per contra, learned counsel for respondent No.9 submitted that respondent No.9 is the legal representative of deceased defendant No.8 before the trial Court. The suit O.S.No.4203/1992 was filed in the year 1992. After lapse of 23 long years, the application came to be filed. Defendant No.9 had examined himself as DW-5 on 27.01.2003. He has filed several applications including the application to produce the documents and he was further examined on various dates. Inspite of that, he had not sought for amending the written statement. There is absolutely no reasons for the inordinate delay in filing the application.

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1 (2007) 1 SCC 765

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NC: 2024:KHC:6166 WP No. 4731 of 2016

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Learned counsel further submitted that there are no

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details as to when the petitioner came to know about all those documents which are referred to in the proposed amendment. Under such circumstances, when the inordinate delay in filing the application is not explained, the petitioner is not entitled for any relief.

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Learned counsel also submitted that Section 52 of Transfer of Property Act could be made applicable to the case of the petitioner, if at all, it is his contention that the documents were executed during the pendency of suit. Hence, he prays for dismissal of the petition.

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Learned counsel for respondent No.11 submits that defendant No.11 is the subsequent purchaser of one of the item of the property from defendant No.17. He has no objection to allow the petition. Learned counsel submitted that all these documents came into existence subsequent to filing of the suit and therefore, the petitioner is entitled to seek amendment.

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The undisputed facts of the case are that, the plaintiff filed the suit O.S.No.4203/1992 in the year 1992 for

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9 - NC: 2024:KHC:6166 WP No. 4731 of 2016

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partition and separate possession. The present application was filed during 2015 i.e. about 23 years after filing of the suit. It is not in dispute that the petitioner examined himself as DW-5 on 27.01.2003. Later, he was examined on various dates. It is stated that the petitioner got marked Exs.D17 to D182 and now recording of evidence is already completed. At that stage, the application in question came to be filed.

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On perusal of the proposed amendment sought in the application, there is reference to as many as 36 documents. Even though learned counsel for the petitioner contended that all those documents came into existence during the pendency of the suit, I find the agreements dated 20.06.1990, 30.07.1990, 24.11.1987, the gift deed dated 08.05.1992 which are all admittedly before filing of the suit. Moreover, there are reference to morethan 30 documents which are said to be executed by the defendant in favour of third parties. If that is the case, the provision of Section 52 of the Transfer of Property Act will be aptly applicable and the effect of doctrine of lispendence, as envisaged in the said Section, will be applicable to such transactions effected by the parties to the suit, as it will render subservient to the rights of the parties thereto under the

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NC: 2024:KHC:6166 WP No. 4731 of 2016

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decree. When such is the position of law, the petitioner cannot seek amendment of the written statement to refer to as many as morethan 35 documents in the proposed amendment. Moreover, there is absolutely no explanation whatsoever as to why there is such inordinate delay in filing the application.

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Even if the contention of learned counsel for the petitioner that the amendment of CPC was w.e.f. 1.07.2002 and therefore, it could not apply to the suits prior to the said date is to be accepted, the petitioner is required to explain the delay in filing the application after filing the suit and the reason behind filing such application after conclusion of trial. Under such circumstances, I do not find any substance in the contention taken by the petitioner to seek amendment of the written statement, which would unnecessarily expand the scope of the suit for partition and separate possession. Accordingly, I proceed to pass the following;

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NC: 2024:KHC:6166 WP No. 4731 of 2016

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ORDER

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Petition is dismissed .

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The suit is of the year 1992. It is stated that same is now pending for arguments. The trial Court is directed to dispose off the suit expeditiously with co-operation of the parties.

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Sd/JUDGE

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Sri S Lokesh Reddy v. Smt Neelamma

Case brief

What is this about?

What the court decided

Sri S Lokesh Reddy v. Smt Neelamma

Case brief

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