Allowed

Mr Chan Pasha v. Mrs Dilshad

Karnataka HC1 Feb 2024WP/6760/2021

Case brief

AI extract

What is this about?

Defendant No.2 challenged the trial court's order permitting plaintiffs to amend their plaint five years after the written statement disclosed a registered partition deed and gift deed. The High Court held there was no reasonable explanation for the delay and valuable rights had accrued, quashed the order and dismissed the amendment application.

What did the court decide?

Impugned order dated 23.03.2021 set aside; IA No.17 seeking amendment of plaint dismissed.

Mr Chan Pasha Vs Mrs Dilshad — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:4373 WP No. 6760 of 2021

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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. 6760 OF 2021 (GM-CPC)

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BETWEEN:

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MR. CHAN PASHA, AGED ABOUT 50 YEARS, S/O ABDUL NABHI URF, DADA SABH BASHA, R/AT BEHIND KSRTC BUS DEPOT AND BEHIND PARIVARTHANA OFFICE MYSURU ROAD, SITUATED AT SY. NO.86/4, MUKANAHALLI VILLAGE, KASABA HOBLI, HUNSUR TALUK.

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…PETITIONER

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(BY SRI: MOHANA CHANDRA .P., ADVOCATE)

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AND:

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Digitally signed by PAVITHRA N Location: high court of karnataka

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MRS. DILSHAD, AGED ABOUT 68 YEARS, W/O PASHA SABH, D/O ABDUL NABHI URF DADA SABH BASHA R/AT MAHADEVAPURA VILLAGE, SRIRANGAPATNA TALUK.

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MRS. MAMTAZ BEGAM, AGED ABOUT 66 YEARS, W/O PASHA SABH, D/O ABDUL NABHI URF DADA SABH BASHA R/AT MUSLIM BLOCK, K.R. NAGAR TOWN, K.R. NAGAR TALUK.

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MRS. MEHARUNNISA, W/O MOHAMMAD BHASHA, AGED ABOUT 64 YEARS, D/O ABDUL NABHI URF DADA SABH BASHA, R/AT YEMME KOPPALU,

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KASABA HOBLI, HUNSUR TALUK.

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MRS. GULZAR BHANU, AGED ABOUT 62 YEARS, W/O SYED NOOR, D/O ABDUL NABHI URF DADA SABH BAHA R/AT AZAD NAGAR, KASABA HOBLI, HUSNUR TALUK.

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MR. MOHAMMAD RAZIK, AGED ABOUT 21 YEARS, D/O SHATAK BHANU AND SYED ISMAIL,

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ANISHA BHANU, AGED ABOUT 20 YEARS, D/O SHATAK BHANU AND SYED ISMAIL,

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NO. 5 AND 6 ARE R/AT YEMME KOPALU, KASABA HOBLI, HUNSUR TALUK.

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MRS KAMRUNNISA, AGED ABOUT 52 YEARS, W/O ABDUL NABHI URF DADA SABH BSHA, R/AT BEHIND KSRTC BUS DEPOT AND BEHIND PARIVARTHANA OFFICE MYSURU ROAD, SITUATED AT SY.NO.86/4, MUKANAHALLI VILLAGE, KASABA HOBLI, HUNSUR TALUK.

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MR. THIMMEGOWDA H.V. AGED ABOUT 80 YEARS, S/O LATE VENKATARMANA GOWDA, R/AT LASKHMI NIVASA, 8^TH CROSS, 3^RD MAIN, HEMAVATHI NAGAR, HASSAN.

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MRS. GULZAR BANU AGED ABOUT 50 YEARS, W/O MOHAMMAD CHAND PASHA,

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MR. SADDAM HUSSAIN, S/O MOHAMMAD CHAND PASHA, AGED 28 YEARS,

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MR. MOHAMMAD KALANDAR AGED ABOUT 26 YEARS, S/O MOHAMMAD CHAND PASHA

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ASMA BHANU, AGED ABOUT 25 YEARS, D/O MOHAMMAD CHAND PASHA,

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NO.9 TO 12 ARE R/AT SY.NO.86/4, MUKANAHALLI VILLAGE, NEAR BUS DEPOT, KASABA HOBLI, HUNSUR TALUK.

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…RESPONDENTS

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(BY SRI: AKARSH KUMAR GOWDA, FOR

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SRI: SUNIL .K.N., ADVOCATE FOR R1, R2 & R4 TO R6.

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R3, R7 & R8 ARE SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 23.03.2021 PASSED BY THE COURT OF ADDL. SENIOR CIVIL JUDGE AND JMFC, I.A.NO.17, HUNSUR IN O.S.NO.142/2015 I.E., ANNEXURE-F AND ETC.,

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

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ORDER

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Defendant No.2 in O.S. No.142/2015 on the file of the learned Additional Civil Judge (Sr.Dn.), Hunsur (hereinafter referred to as 'the trial Court' for brevity), is seeking issuance of writ of certiorari to quash order dated 23.03.2021 allowing

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IA No.17 filed by plaintiff No.3 under Order 6 Rule 17 r/w

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NC: 2024:KHC:4373 WP No. 6760 of 2021

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Section 151 of CPC and permitting the plaintiffs to amend the plaint.

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Heard Sri Mohana Chandra P., learned counsel for the petitioner and Sri Akarsh Kumar Gowda, learned counsel for respondent Nos.1, 2 and 4 to 6. Respondent Nos.3, 7 and 8 are served, unrepresented. Perused the materials on record.

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Learned counsel for the petitioner contended that the respondents as plaintiffs have filed the suit O.S.No.142/2015 for partition and separate possession. It is a simple suit for partition by the plaintiffs contending that the suit property is the family property and they are entitled for share. Defendant No.1 is the mother of the plaintiffs. Defendant No.2 is her son. He is the contesting defendant. Defendant No.2 has filed his written statement originally on 21.03.2016. In the written statement he has categorically stated that there was a registered partition deed dated 11.03.2004 in the family to which, the plaintiffs and defendant No.1 are the parties. Thereafter, defendant No.1 executed the registered gift deed on 06.07.2011 bequeathing the suit property in favour of defendant No.2. Under such circumstances, it is contended that

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the plaintiffs are not entitled for any share. Even though such a specific defence was taken in the written statement that was filed on 21.03.2016, the plaintiffs have not taken any further steps. Issues were framed by the Trial Court on 27.02.2018. Both parties have led their evidence and the matter is now listed for arguments. At that stage, the application IA No.17 under Order 6 Rule 17 R/w Section 151 of CPC was filed on 15.03.2021 to plead that the plaintiffs were not aware of the contents of the document to which they subscribed their signatures and thumb impression and they are not bound by its contents. Accordingly, they wanted to amend the plaint seeking declaration that the plaintiffs are entitled for respective shares and also to declare that the registered gift deed dated 06.07.2011 executed by defendant No.1 in favour of defendant No.2 is null and void and it does not bind the plaintiffs and also to declare that the registered sale deed dated 06.11.2005 executed by defendant No.2 in favour of defendant No.3 is null and void and it does not bind the plaintiffs.

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Learned counsel further submitted that when the

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plaintiffs are parties to the registered partition deed dated 11.03.2004, the plaintiffs cannot be permitted to seek relief in

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respect of the same after lapse of about 18 years, atleast from the date of filing of the written statement on 21.03.2016, five years have lapsed. Therefore, the amendment could not have been allowed.

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Learned counsel further submitted that originally the suit was a simple suit for partition and separate possession. The amendment would change the cause of action as well as the nature of the suit where they are seeking declaration about many registered documents. Further, no declaration is sought in respect of the registered partition deed dated 11.03.2004 to which, the plaintiffs are parties. Under such circumstances, the plaintiffs are not entitled for the relief of seeking amendment of the plaint. The trial Court without considering any of these facts, proceeded to allow the application only to meet the ends of justice. It has not taken into consideration the right accrued to defendant No.2 by lapse of time. Hence, the impugned order is liable to be set aside. Accordingly, prays for allowing the petition.

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Per contra learned counsel for the respondents

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opposing the petition submitted that plaintiff No.3 is an

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uneducated lady and she was not aware of the registered paluparikath dated 11.03.2004. She was misrepresented by defendant No.1 under the guise of gifting 2 guntas of land. Therefore, she has subscribed her signature to the registered paluparikath dated 11.03.2004. But subsequently, defendant No.1 proceeded to execute the registered gift deed in favour of defendant No.2 on 06.07.2011 that was not within the knowledge of the plaintiffs. Therefore, there was no pleading to that effect.

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Learned counsel submitted that even though defendant No.2 has filed the written statement on 21.03.2016 referring to the registered partition deed and registered gift deed referred to above, that may at the most amounts to bringing it to the notice of the counsel for the plaintiffs, but it will not amount to notice to the plaintiffs. Therefore, it cannot be contended that the documents were within the knowledge of the plaintiffs and hence, question of limitation does not arise.

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Learned counsel also submitted that in view of Section 63 of Mohammedan Law, immediately after the death of the father, there was a partition of the property and share of

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the plaintiffs is already determined. Under such circumstances, there was no question of entering into the registered partition deed on 11.03.2004. Accordingly, subsequent gift deed dated 06.07.2011 is also not binding on the plaintiffs. Therefore, they have sought for amendment of the plaint about the subsequent developments and the trial Court rightly allowed the same. There are no reasons to interfere with the same. Hence, prays for dismissal of the petition.

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The plaintiffs filed the suit seeking partition and separate possession of their 5/7^th share in the suit property. It is stated that their father died during 2001 leaving behind the plaintiffs and the defendants as his only legal representatives and after his death, defendant Nos.1 and 2 have colluded together and concocted the documents and therefore, they are seeking partition and separate possession.

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The contentions now urged are that there was a partition in accordance with Section 63 of Mohammedan Law immediately after the death of their father and there was no necessity for seeking partition. If such contention is to be accepted even now, the plaintiffs cannot maintain the suit for

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partition and separate possession as according to them, there was already partition as per Section 63 of Mohammedan Law. Entering into a partition deed was never the contention of the plaintiffs when they filed the suit.

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It is pertinent to note that while filing the suit, the plaintiffs have made allegation that defendant Nos.1 and 2 have colluded with one another and concocted the documents. But the details of the said documents are not forthcoming in the plaint. Admittedly, defendant No.2 appeared before the Court and filed written statement on 21.03.2016. In the said written statement, there is reference to the registered partition deed entered into between the plaintiffs and defendant No.1 and subsequent registered gift deed dated 06.07.2011 executed by defendant No.1 in favour of defendant No.2. Even thereafter, the plaintiffs have not thought it fit to amend the plaint and to have their say about the registered partition deed to which, they are parties and to the registered gift deed under which defendant No.2 claimed right over the property. It is only on 15.03.2021 i.e., after lapse of morethan five years, IA No.17 was filed seeking permission to amend the plaint.

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NC: 2024:KHC:4373 WP No. 6760 of 2021

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On going through the proposed amendment sought

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to be made in IA No.17, there is reference to the registered paluparikath dated 11.03.2004 and also registered gift deed executed by defendant No.1 in favour of defendant No.2.

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It is the contention of the plaintiffs that they were not aware of the contents of the registered partition deed for which, they are parties and as there was misrepresentation and the signatures were obtained by playing fraud. But strangely, no relief is claimed in respect of the said registered partition deed even though they were parties. The relief seeking declaration was proposed to be taken only with regard to the registered gift deed dated 06.07.2011 executed by defendant No.1 in favour of defendant No.2. There is absolutely no reasonable explanation as to why the plaintiffs have not chosen to seek any relief in respect of the registered partition deed dated 11.03.2004 to which they are admittedly parties and according to them, it is a collusive document obtained fraudulently.

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The contention of learned counsel for the plaintiffs that the facts stated in the written statement by defendant

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No.2 on 21.03.2016 was not a notice to the plaintiffs but it was only notice to the counsel for the plaintiffs cannot be accepted. There is no reasonable explanation for the inordinate delay in seeking amendment and in the meantime, valuable right had accrued in favour of defendant No.1 who categorically pleaded about these registered documents in his written statement on 21.03.2016 itself. When the right is accrued in favour of the defendants, the plaintiffs cannot be permitted to seek the amendment in the plaint and also the relief of declaration regarding the registered gift deed after lapse of five years.

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In respect to the registered partition deed, till today, no relief is sought for, even though admittedly the plaintiffs subscribed their signatures to the document dated 11.03.2004. In view of the same, I do not find any merit in the prayer made by the plaintiffs before the trial Court.

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I have gone through the impugned order passed by the trial Court. The trial Court has committed an error in ignoring all these facts and circumstances and allowing the application. Hence, the same calls for interference by this Court. Accordingly, I proceed to pass the following;

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NC: 2024:KHC:4373 WP No. 6760 of 2021

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ORDER

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i. Writ petition is allowed .

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ii. The impugned order dated 23.03.2021 passed in O.S.No.6760/2021 by the learned Additional Civil Judge (Sr.Dn.), Hunsur, is set aside.

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iii. Consequently, IA No.17 filed by plaintiff No.3 under Order 6 Rule 17 r/w Section 151 of CPC, seeking amendment of the plaint, is dismissed.

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The observation made herein is only for the purpose of disposal of this petition. The same shall not bind the Trial Court to form an opinion independently, while deciding the suit on merits.

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Sd/JUDGE

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PN List No.: 1 Sl No.: 4

Mr Chan Pasha v. Mrs Dilshad

Case brief

What is this about?

What did the court decide?

Mr Chan Pasha v. Mrs Dilshad

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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