Dismissed

Kolipaka alias Puligilla Rajeshwari v. Kolipaka Sharada, (Died)

Telangana HC9 Feb 2024CRP/3690/2023

Case brief

AI extract

What is this about?

Plaintiff in a 2006 partition suit challenged dismissal of her second amendment application under Order VI Rule 17 CPC, which sought fresh declarations after her earlier amendment had been allowed and the defendants' revision dismissed. The High Court held she failed to plead due diligence and that repeated interlocutory applications in an old suit warranted no interference.

What did the court decide?

None granted; Civil Revision Petition dismissed with no order as to costs and pending miscellaneous petitions closed.

Kolipaka alias Puligilla Rajeshwari Vs Kolipaka Sharada, (Died) — Partition | Telangana HC (2024)

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[³¹⁶⁸¹

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IN THE HIGH COURT^{FORTHE STATE OF TELANGANA} AT HYDERABAD

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FRIDAY THE^{NINTH DAY OF FEBRUARY} TWO THOUSAND^ANDTWENWFOUR

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PRESENT

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THE HONOURABLE^{SRI JUSTICE K.LAKSHMAN}

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CIVIL REVISION^{PETITION NO:3690 0F 2023}

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Petition Under^{Article227 constitution of lndia againstthe orderdated} 1gt1012023 in l.A.^{No.336 0l 2023 in o.S.No. 228 0t 2006, on the file of the court} of the Additional Senior^{Civil Judge Court at Hanamkonda'}

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Between:

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Kolipaka @ Puligilla^{Rajeshwari,Wo'Pradeep, aged about 46. years'. Occ'} iiit'."n"rol nyo ii.r.ro.^{i'aill,' Balasamudram, t{anamkonda,Hanamkonda} district.

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...PETITIONER/PETITIONER

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AND

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Kolipaka Sharada,^(DIED)

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' Pendval Rama Rani, hil;ti;il: riL. n.t i".^Wo ib-o^{Subramanyam, aged} -ia35ri,s.N. illurthv^about rhota,^{61 years'} Mamindlagudem'^o.cc' Khammam Town^{and District'}

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-' 3. Pendyala Subramayam, ituio.'c'Jut.-s;n;i, ruo. u.t'to.^{S/o Narayana} 10-6-18/3/5/d, -syqlly'4-g9d s'N' Murthv Thota,^{about& years' occ'} iriiminoiaguOem,^{Kharnmam Town and Diskict'}

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The sub-Registrar,^{Joint-|,Warangal,.officeof Districl Registration offlce of} ' A;;wa;;aitoo tt' road, Hanamlionda city and district'

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...RESPONDENTS

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IA NO 1oF 2023

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Petition under section^{151 CPC praying that in the circumstances statedin} the affidavit^{filed in support of the petition, itre-Hign Court may be pleasedto grant} op"ration ot tne iuagment^{and qq9t"9q1{1"don 1 9th day of October'2023} "i"V i"in. "t N'". 336. of 2O2i^{in"O.S. No. 228 ot 2eOG on the file of the Court of the} Additional senior civil^{Judge,at Hanamkonda, HanamkondaDistrict, pending} disposal of the above^{Civil Revision Petition'}

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lA NO: 2 OF 2023

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Petition under Section 151 cPc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to grant'the stay of further proceedings in o.S. No.228 of 2006 on the filed of court oJ the Additional Senior civil Judge, at Hanamkonda, Hanmakonda Distinct, pending disposal of the above Civil Revision Petition, in the interest of justice.

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Counsel for the Petitioner

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:Sri T. Dayananda Rao

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Counsel for the Respondent Nos. 2 &3 : Smt. P. Sarada

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The Court made the following:

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HON'BLE SRI^{JUSTICEK. LAKSHMAN}

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CTVIL REVI^{SION PETITION No.3690 0F 20.23}

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ORDER:

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Heard Sri T.^{Dayananda Rao, learnedcounsel} appearing for^{the revision petitionerand Smt' P' Sarada'} learned counsel^{appearingfor respondentNos'2 and 3'} Perused the^record.

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This Civil^{Revision Petitionis filed under Article 227} of the Constitution^{of India challengingthe order dated} tg.lO.2O23 in^{I.A'No.336 of 2023 in O'S'No'228of 2006'} passed by the learned^{Additional Senior Civil Judge at} Hanumakonda.

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The^{petitionerherein had filed a suitvide} O.S.No.228 of^{2006 against the respondentsherein} seeking partition and^{separate possession of the suit} schedule properQl,^{to declareher as sole legal heir of late} Kolipaka Rajeshwar^{Rao and late KolipakaSharada} (defendant No.l), to declare^{her as absoluteowner and} possessor of the suit schedule^{property and to declare the}

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KL, J CR;' No.3690 of2023

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registered sale deeds bearing Document Nos.713 and714 of 2008 both dated 31.O1.2008, executed by defendant No.1 in favour of defendant No.2, as null-and-void, etc.

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During the pendency of the said suit, the petitioner/plaintiff had filed a petition under Order VI Rule 17 read with Section 151 of C.P.C. vide I.A.No.336 of 2O23 seeking the following amendments:

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"That in additional para in the plaint after para No.lV as under

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para No,IV(1A| That due to the death of the Defendant No.1, the plaintiff may be declare as sole Iegal heir of the deceased Defendant No. 1

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para No.IV(lBf That the cause of action arose within the limitation from the date of disposal of CRP No.l478l2016 dt:28- 1 I-2O22

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para No.fVllCl That the defendant No. I has already gifted her share of the property in Door No. 6-4-1O6 & 6-4-107 to her sister Shyamala long back much prior to filing of this suit and this fact is not in the knowledge of the Petitioner/ Plaintiff at the time of frling of the suit or till 31-01-2O08 or filing of the I.A. No. 8O2/2015 dt:O7-01-2016. Therefore the Petitioner/ Plaintiff may be declared as full & absolute owner of the suit schedule property.

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Prayer Column: Amendment after "a(3)" para as under:

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a(4) That Defendant No.2 has no rights in the Suit Schedule Property

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KL' J CRP No.369O^o12023

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a(5) The Plaintiff^{is only entitled to entire suit schedule property} Door No. 6-4-109^{& 6-4- 108 extent of 36o 0OSq'yds& 25'00sq'yds} situated at Brahmanwada,^Hanumakonda'

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a(6t That the^{DefendantNo.2is not entitled any share in the suit} schedule^{property due to the transferof half share of the defendant} No.l to Shyamala,^{alienation/giftby the Defendant No' 1 hasno} share in the suit^{scheduleproperty'"}

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The petitioner^{sought for the aforesaid amendments} on the following^grounds:

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I Petitioner is adoptive^{daughterof defendantNo'1} and Sri KoliPaka^{RajeshwarRao'}

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Her adoptive father^{has left the house and did not} return till the death^{of her adoptive motheri'e''} defendant^No.1.

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Her adoptive father^{and natural father a-re own} brothers with common^ancestors'

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lv. During the^{pendency of the suit, her adoptive} mother had executed^{two registeredgift settlement} deeds bearing Document^{Nos.713and 714 of 2008} both dated 31.01.2008,^{in favour of defendant No'2'} to defeat her claim^{in the suit.}

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Her adoptive^{mother died on 13'05'2013during} pendency of the said^{suit.The said fact was} brought to the notice^{of the trial Court' Petitioner}

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KL, J CRP No.3690 of 2023

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herein is the only surviving legal heir to defendant No.1.

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vl Defendant No.1, in collusion with defendant Nos.2 and 3, executed the said documents to defeat her claim.

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vll. She filed I.A.No.8O2 of 2015 for amendment and the sarne was allowed.

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vtll. A revision filed by the defendants challenging the order in I.A.No.8O2 of 2015 vide C.R.p.No.l4Z8 of 2016, was dismissed by this Court on 2g.II.2022.

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lx The said documents are created and brought to defeat her claim.

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x. Therefore, it is just and necessary to amend the plaint in the manner stated supra.

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The said I.A.No.336 of 2023 was opposed by respondent Nos.2 ald 3 contending that the earlier application filed by the petitioner vide I.A.No.go2 of 2o15 seeking amendment, was a_llowed vide order dated O7.OL.2OL6. The revision filed by them vide C.R.p.

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No. 1478 of 2016 was dismissed by this Court vide order dated 28.11.2022.

<br>

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KL, J CRP No.369O of 2023

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The petitioner has a-lso hled I.A.No.97 of 2OO9 under Order I Rule 10 of C.P.C., to add the proposed parties as defendant Nos.2 to 4. The same was a-llowed vide order dated 2O.IO.2O|4. Even then, she frled the present application, after (7) years of allowing the earlier I.A.No.802 of 2015 frled by her seeking amendment and after almost (1) year of dismissal of C.R.P.No.L478 of 2016 on 28.11.2022, w'ithout mentioning satisfactory reasons.

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Vide impugned order, trial Court dismissed the said application holding that despite having knowledge of allowing the earlier I.A.No.802 of 2015 and dismissal of C.R.P.No. 1478 of 2016 lrJed by respondents, petitioner has filed the present application without mentioning valid and^justifiable reasons. The prayer sought by the petitioner is contrar5r to the procedure laid down under Order VI Rule 17 of C.P.C. She has not mentioned satisfactory reasons, more particularly, that despite due diligerrce, she is not in a position to mention the said

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KL, J CRP No.369O of 2023

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facts in the^{plaint and also in the earlier amendment} application. With^{the said observations, the trial Court} dismissed the said^aPPlication.

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Sri T. Dayananda^{Rao, learned counsel appearing} for the petitioner^{would contend that an application} under Order VI Rule^{17 of C.P.C. cal be filed at any time'} The petitioner herein^{came to know about the said facts} d.uring the hearing^{of the a-foresaid C'R'P'No' 1478 af} 2016 before this Court.^{Though the said aspects were} speciircally^{pleadedin the I.A., the tria'l Court dismissed} the said I.A. erroneouslY.

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g. Learned counsel appearing^{for the petitioner placed} reliance on following^judgments:

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i) Life Insurance^{Corporationof India v' Sanjeev} Builders Private Limited^{and anotherl,}

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ii) Kallam Mangamma^{(Died) and another v'} Bonthu Laksfmi Sarada^{and others2, ar'd}

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iii) Tatavarthu Sirisha and^{anotherv. Sri Lakshmi} Venkateswara Educational Society^{rep., by its}

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I erR 2022 sc +256

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2 zozl 1ty N-o t+z 1et1

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KL, J CRP No.369O of 2023

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Correspondent Sri Ramasani Thippa Reddy and anothe13.

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Whereas, Smt. P. Sarada, learned counsel appearing for respondent Nos.2 and 3 would contend that the petitioner herein failed to mention valid and satisfactory reasons in seeking amendment, there is abnormal delay 1n filing the present application and that the earlier application filed by her seeking amendment was allowed. An Interlocutory Application filed by the petitioner under Order I Rule 1O vide I.A.No.97 of 2OO9 was a-llowed on 2O.lO.2Ol4. On consideration of said aspects only, the trial Court dismissed the present application hled by the petitioner vide I.A.No.336 of 2023.

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The afore-stated facts and submissions would reveal that the suit is of the year 2006. Petitioner/plaintiff filed the aJoresaid suit seeking partition and separate possession of the suit schedule propert5r. She has filed I.A.No.97 of 2OO9 under Order I Rule 1O read with

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I 2023 (6) ALT 814 (s.B.)

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KL, J CRP No.3690 of2023

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Section 151 of C.P.C. to implead proposed respondents as defendant Nos.2 to 4. The said application was ordered on 20.lO.2Ol4.

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L2. The petitioner herein has also filed another application vide I.A.No.802 of 20 15 to amend the plaint with a prayer, to declare her as sole legal heir as late Kolipaka Rajeshawar Rao and late Kolipaka Sharada (defendant No.1), to declare Document Nos.713 and 714 of 2008, both dated 31.O1.2008 executed by defendant No.1 in favour of defendant No.2 as null-ald-void and to declare her as absolute owner and possessor of the suit schedule property. The said application was a-llowed on 07.0l.2016. Challenging the said order, respondent Nos.2 and 3 herein have frled a revision vide C.R.P.No.L478 of 2016. The said C.R.P. was dismissed by this Court on28.11.2022.

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Thereafter, the petitioner herein had hled I.A.No.336 of 2023 seeking the aforesaid amendments only on

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KL, J CRP No.369O of2023

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(

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06.07.2023 arrd respondent Nos.2 and 3 herein have filed their counter on I8.O7.2023.

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Though Sri T. Dayananda Rao, learned counsel appearing for the petitioner contended that the petitioner came to know about the said facts during the course of hearing of the aforesaid C.R.P, there is no specilic averment in the affrdavit frled in support of I.A.No.336 of 2023 filed by the petitioner seeking amendment.

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There is no dispute with regard to the legal proposition that an application under Order VI Rule 17 of C.P.C., seeking amendment, can be filed at any time. But at the same time, the petitioner herein has to specifically plead and prove that despite due diligence, she could not have raised the matter before the commencement of trial. In the present case, the petitioner herein failed to plead and prove the sarne. There is no assertion in the afhdavit that she came to

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KL, J CRP No.369O of2023

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know about the said facts only^{during the courseof} hearing of the C.R.P.

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It is relevant to note that^{the said C.R'P. was} dismissed on 28.11.2022 and^{the petitioner has hled the} present application on 06.07.2023 t.e-, after a^{lapse of} almost 7Yz lrronths.

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As discussed supra, the suit is^{of the year 2Oa6-} Having hled the said suit, the^{petitioner/plaintiffcannot} file one Interlocutor Application or^{the other. This is} On second amendment application filed^{by her.} consideration of the entire^{material, more particularly,} Order VI Rule 17 of C.P.C., the^{trial Court dismissed the} said I.A. hled by the^{petitioner hereinvide impugned} order dated 19.10.2023. It is a^{reasoned order and it} does not require interference by this^{Court in exerciseof} its supervisory power under Article 227^ofthe

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Constitution of India. Thus, viewed from any angle, the revision is liable to be dismissed.

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KL, J CRP No.369O of 2023

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Accordingly, this Civil Revision Petition is dismissed.

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There sha]l be no order as to costs.

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As a sequel, miscellaneous petitions, if any, pending

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in the revision shall stand closed.

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Sd/. G.SIRE HA ASSISTANT TRAR

//TRUE COPY//

sEcTto OFFICER

To,

1 . The Additional Senior Civil Judge Court at Hanamkonda. 2. One CC to Sri T. Dayananda Rao, Advocate IOPUC] 3. One CC to Smt. P. Sarada Advocate [OPUC] 4. Two CD Copies DUg h

-D,^

HIGH COURT

DATED:09102/2024

ORDER

CRP.No.3690^{ot 2023}

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