Smt Savithramma @ Nanjamma Vs Sri Ramegowda

THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.04.2018 PASSED IN R.A.NO.5/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC., SRIRANGAPATNA AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel appearing for the appellants and the learned counsel for respondent Nos.3 and 10.

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This MSA is filed against the order passed by

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the First Appellate Court in R.A.No.5/2023 wherein the First Appellate Court allowed I.A.No.1 filed by the appellant/plaintiff under Order VI Rule 17 of CPC and remitted the matter to the Trial Court with a direction to permit the plaintiff for amendment in the plaint as sought in I.A.No.1 and to afford opportunity to defendant Nos.11 to 15 to file the written statement and additional written statement if any and provide an opportunity to both the parties to adduce additional evidence.

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This order is under challenge before this Court.

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The counsel for the appellants would vehemently contend that the First Appellate Court is not justified in entertaining

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an application for amendment of the plaint. The counsel would vehemently contend that no application is filed under Order 21 Rule 27 of CPC and also the counsel would vehemently contend that while remanding the matter, the Court has to keep in mind Order 41 Rule 23, 23-A and 25 of CPC and only if satisfies, then remand could be made. The counsel would vehemently contend that filing an application for permitting the amendment in the regular appeal that too after lapse of over two decades of lis between the parties is an erroneous and the First Appellate Court ought not to have allowed the said application. The counsel would vehemently contend that the suit was filed in the year 1992 and the matter was remanded twice and in both the occasions, the suit filed by the plaintiff was dismissed and being aggrieved by the dismissal of the suit, R.A.No.5/2013 is filed. The counsel would vehemently contend that when Sannamma passed away, an application was filed under Order I Rule 10(2) of CPC before the Trial Court and the Trial Court held an

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enquiry and given the definite finding that they are the legal representatives of Sannamma and continued to proceed in the matter. When such finding was given regarding relation between the legal representatives is concerned, same cannot be agitated once again by filing

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an application under Order VI Rule 17 of CPC before the First Appellate Court and the very approach of the First Appellate Court is erroneous and the First Appellate Court ought not to have remanded the matter. The counsel would vehemently contend that no point for consideration was considered by the First Appellate Court while remanding the matter and only entertaining the application filed under VI Rule 17 of CPC that too without production of any documents and only on mere say of pleading in the application for amendment, the same was allowed hence, the very approach of the First Appellate

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Court is erroneous and it requires interference.

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The counsel for respondent Nos.3 and 10 who are the defendants before the Trial Court would vehemently contend that the order passed by the Trial Court in O.S.No.129/1992 allowing the application filed under Order I Rule 10(2) read with Section 151 of CPC is challenged before this Court by filing the writ petition and the writ was dismissed affirming the order. However, made an observation in paragraph 2 that the plea of the applicants is that the deceased was the adopted son of the defendant Smt. Sannamma. Whereas the contention of petitioner is that Ninge Gowda was only a fostered son and since the law does not recognize the fostered son, his legal representatives cannot be impleded as defendants. He is not the legal son of Sannamma. The Trial Court has held that a prima facie case has been made out that Ninge Gowda is the adopted son of Sannamma, in view of the fact that the plaintiff has also not disputed the relationship between the applicants and the deceased Ninge Gowda. In the circumstances, the application is allowed. It is also

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further observed in paragraph 3 that I do not find any error committed by the Trial Court that calls for interference. Admittedly, the claim is being made which cannot be finally decided in the said application. It is only after trial that the status of the legal representative, their share or otherwise can be decided by the Trial Court and not at this stage. The applicant having made out a prima facie case, I do not find any error that calls for interference.

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The counsel referring this order would vehemently contend that this Court in the writ petition, in paragraph 3 made an observation with regard to the relationship as well as entitlement for share and matter to be considered at the time of very suit only. When such observation is made, the very reasoning given by the First Appellate Court in allowing the application filed under Order VI Rule 17 of CPC is correct and not committed any error and in detail, discussion was made in the appeal while entertaining the amendment application under Order

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VI Rule 17 of CPC. The counsel would vehemently contend that the First Appellate Court rightly remanded the matter giving an opportunity to file additional written statement to the defendants in view of amendment to the plaint and hence, it does not require any interference of this Court.

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The counsel for the plaintiff who filed the application under Order VI Rule 17 of CPC before the Trial Court is not present before this Court. This Court vide order dated 04.06.2025 made it clear that if the counsel for respondent No.1(a) to (d) does not appear on the next date of hearing, the matter will be heard in his absence.

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In reply to this arguments, the learned counsel for the appellants brought to notice of this Court to the detailed order passed by the Trial Court in O.S.No.129/1992 on IA filed under Order I Rule 10(2) read with Section 151 of CPC wherein, a discussion was made that there was a mortgage deed in favour of the

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plaintiff that was executed by Sannamma and also her adopted son in the year 1982 and document also marked before the Trial Court at Ex.D1 wherein also a reference was made in the document dated 26.02.1982 itself that the Sannamma is the adopted mother of Ningegowda. Apart from that taken note of documents at Ex.D2 as well as D6 and having considered all these materials only conducted an enquiry as contemplated under Order 22 Rule 5 of CPC and comes to the conclusion that defendant Nos.11 to 15 are the legal representatives of Sannamma. When such detailed discussion was made, the plaintiff cannot approbate or reprobate by filing an application under Order VI Rule 17 of CPC seeking for an amendment since the plaintiff was unsuccessful before the Trial Court twice when matter was remanded twice and adopted an ingenious method to make an application under Order VI Rule 17 of CPC in the appeal without production of any documents for amendment.

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Heard the learned counsel appearing for the

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appellants and the learned counsel appearing for respondent Nos.3 and 10 and no argument was canvassed by the plaintiff who filed an application under Order VI Rule 17 of CPC before the First Appellate Court. This Court has to look into the order passed by the First Appellate Court while permitting for amendment to the plaint. It is not in dispute that the suit was filed in the year 1992 and it is also not in dispute that earlier suit was dismissed and subsequently, the appeal was filed and matter was remanded to the Trial Court. The first remand was made with regard to frame the additional issues since the plaintiff pleaded that the property was acquired as well as set up the defence of adverse possession. It is settled law that there cannot be claim of ownership as well as adverse possession. However, the Trial Court, on remand also considered the matter giving an opportunity and ultimately having recorded the evidence, dismissed the suit and the said judgment was also challenged before the

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First Appellate Court in R.A.No.89/2000 and during the pendency of the proceedings, the said Sannamma passed away. Hence, an application was filed under Order I Rule 10(2) of CPC claiming that they are the legal representatives of Sannamma wherein also a dispute was raised by filing objection that the Ningegowda is not adopted son of Sannamma. Hence, the First Appellate Court once again remanded the matter to decide the issue recording the evidence by holding an enquiry. Accordingly, the Trial Court once again held the enquiry under Order 22 Rule 5 of CPC as contemplated.

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Having perused the material on record,

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particularly, taking into note of the material on record, in paragraph 15 of the order allowed on the application filed under Order I Rule 10(2) of CPC considering the document at Ex.D1 dated 26.02.1982 wherein the reference was made that Sannamma had executed the mortgage deed along with her adopted son Ningegowda and also there was a recital in the document itself that he was a adopted

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son and said document also came into existence on 26.02.1982 and suit was filed in the year 1992. Apart from that Ex.D2 and D6 were also taken note of to comes to a such conclusion that he was adopted son and allowed the application.

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It is important to note that the very document of mortgage is in favour of plaintiff who filed the suit for the relief of declaration and there is a force in the contention of the appellants’ counsel that the plaintiff cannot approbate or reprobate to the circumstances. Apart from that the suit was remanded twice and the second remand is also to decide the issue of LRs and same has been considered by passing an order and the said order has attained its finality and this decision was taken on 24.08.2011 and suit was dismissed on 30.11.2012.

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Being aggrieved by the said order, an appeal is filed. In the appeal, the plaintiff kept quiet when the order was passed on the application filed under Order I Rule 10

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and same was attained its finality and though a writ petition was filed in W.P.No.43507/2011, same was disposed of on 11.06.2012. The counsel for the respondent also brought to notice of this Court that admittedly, this Court held that the claim which was made cannot be finally decided in the said application and same has to be considered with regard to the representing a legal representatives and also an observation is made that after trial, the status of the legal representative, their share or otherwise can be decided by the Trial Court and not at this stage. No doubt, the observation is made that the Trial Court having considered the material on record in O.S.No.129/1992 after the remand, considered the matter on merits also. When such being the case, an application is filed belatedly in the appeal filed in R.A.No.5/2013 and kept quiet for a period of almost four years after the determination of the application filed under Order I Rule 10 of CPC and application is filed in the year 2016 that is an after thought that too seeking for amendment disputing

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the relationship and the First Appellate Court fails to take note of the nature of amendment sought in the plaint. The Trial Court also while considering the relationship between the parties particularly, the legal representatives, when an application under Order I Rule 10(2) of CPC was

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taken note of the fact that there is undisputed time of document of the year 1982 wherein the plaintiff itself is a beneficiary in the document of the year 1982 when the document was executed by the Sannamma along with her son who has been recited as adopted son. When all these material on record taken note of while disposing of application filed under Order I Rule 10(2) of CPC by the Trial Court, the First Appellate Court ought to have taken note of the same. But the First Appellate Court fails to take note of the fact that amendment is sought after unsuccessful before the Trial Court twice and the First Appellate Court has to take note of the fact that on what juncture, the application was filed for amendment. Hence, the very reasoning given by the First Appellate Court by

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allowing I.A.No.1 to give a sufficient opportunity to the appellant in the appellate stage cannot be a ground for allowing the application filed under Order VI Rule 17 of CPC. But the fact that the parties have represented before the Trial Court when an application was filed before it seeking permission to come on record and same was decided in the presence of the plaintiff as well as the defendants who are on record and they cannot agitate in the appeal that no opportunity was given while deciding the issue when the same has been considered by the Trial Court by giving an opportunity, even the evidence was recorded and enquiry was made as contemplated under Order 22 Rule 5 of CPC. The First Appellate Court fails to take of enquiry held under Order 22 Rule 5 of CPC by the Trial Court while determining the application filed under Order I Rule 10(2) of CPC and only in the presence of parties that is including the plaintiff as well as the defendants, the dispute was considered and enquiry was conducted and decision was taken. When such being the

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case, the First Appellate Court ought not to have considered the application filed under Order VI Rule 17 of CPC and committed an error in allowing the application which was filed after thought even though the suit was filed in the year 1992 i.e., after almost 2½ decades an application is filed for amendment without any documentary evidence and only on oral say of the plaintiff and the said fact also not taken note of by the First Appellate Court and hence, the First Appellate Court committed an error while entertaining the application filed under Order VI Rule 17 of CPC after two rounds of litigation and twice the suit was dismissed before the Trial Court. Hence, it requires interference of this Court.

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