Karnataka High Court

Smt Byramma vs Sri Narayanappa on 2 February, 2022

Bench: Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 2ND DAY OF FEBRUARY 2022

                      BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

  WRIT PETITION NO.2165 OF 2022 (GM-CPC)

BETWEEN:

1 . SMT. BYRAMMA
    W/O SRI NAGARAJAPPA
    D/O NARAYANAPPA
    AGED ABOUT 46 YEARS
    R/AT VISWANATHAPURA VILLAGE
    NARASAPURA HOBLI
    KOLAR TQ AND DIST.

2 . SMT. JAYALAKSHMAMMA
    W/O LATE NARAYANASWAMY
    D/O NARAYANAPPA
    AGED ABOUT 53 YEARS
    R/AT JANGALAHALLI VILLAGE
    KASABA HOBLI
    KOLAR TQ AND DIST.
                                     ...PETITIONERS
(BY SRI. SHIVASHANKAR K, ADVOCATE)

AND:

1 . SRI. NARAYANAPPA
    S/O LATE KENCHAPPA
    AGED ABOUT 78 YEARS
                            2




2 . SRI. NAGARAJA
    S/O SRI. NARAYANAPPA
    AGED ABOUT 54 YEARS

3 . SRI. DEVAPPA @ DEVANNA
    S/O SRI. NARAYANAPPA
    AGED ABOUT 42 YEARS

   RESPONDENTS No.1-3 ARE
   R/AT VISHWANATHAPURA VILLAGE
   NARASAPURA HOBLI
   KOLAR TQ AND DIST.

4 . SRI MALAKONDAIAH K
    S/O SRI. LAKSHMAIAH
    AGED ABOUT 57 YEARS
    R/AT UDDAPANAHALLI VILLAGE
    NARASAPURA HOBLI
    CHAKARASANAHALLI POST
    KOLAR TQ AND DIST.
                                   ....RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 13.12.2021 PASSED ON IA
NO.25 IN O.S.NO.11/2013 PENDING ON THE FILE OF THE
1ST ADDITIONAL SR. CIVIL JUDGE AT KOLAR VIDE
ANNEXURE-G

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


                    ORDER

The petitioners being aggrieved by the order

dated 13.12.2021, passed on I.A.No.25 in O.S.No.

11/2013 by the Principal Civil Judge (Sr.Dn.) & CJM,

Kolar have filed the present writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

The petitioners have filed a suit for partition and

separate possession in respect of the suit schedule

properties against the respondents. The respondents

No.2 and 3 have filed written statement. The Trial

Court framed issues. Both the parties have lead

evidence and closed their side. Case was posted for

arguments on merits. At that time, the petitioners

filed an application seeking for amendment of plaint.

In support of the application, the petitioner No.2 filed

an affidavit contending that the petitioners and their

family members have purchased item No.5 of the suit

schedule property from one S. Ravikumar, S/o H.

Sathyanarayana Reddy under registered sale deed

dated 01.06.2001, in the name of their father who is

respondent No.1 herein. The respondent No.1 along

with the petitioners and other respondents

approached one Smt. Anusuyamma, W/o Muniyappa

for loan amount of Rs.2,00,000/-. The said

Anusuyamma and her husband agreed to pay the said

amount with condition that they should execute

document for the security of loan amount.

Accordingly, respondent No.1 executed a registered

sale deed dated 26.02.2007, in favour of

Anusuyamma as a security to the loan amount. The

respondent No.1 repaid the loan amount to Smt.

Anusuyamma. She, in turn, executed a registered

sale deed in favour of the elder brother of petitioner

No.2 with the consent of other family members.

Respondent No.1 has produced the registered sale

deed. It is contended that non-inclusion of the

proposed property in the suit was purely bona fide and

not intentional one. Hence, prayed to allow the

application.

Respondent No.4 filed objections denying the

averments made in the application and prayed to

dismiss the application.

The Trial Court, after hearing the parties,

dismissed the application filed by the petitioners.

Hence this writ petition.

3. Heard learned counsel for petitioners.

4. Learned counsel for the petitioners submits

that the proposed amendment does not change the

nature of case. He further submits that the Trial

Court has committed an error in dismissing the

application. He further submits that if the application

is allowed, no injustice would be caused to the

respondents. Hence, on these grounds, he prays to

allow the writ petition.

5. Perused the records and considered the

submissions made by learned counsel for the

petitioners.

6. The petitioners have filed a suit for partition

and separate possession in the year 2013. The

respondents No.2 and 3 have filed written statement

on 06.08.2016. Respondent No.1 has filed a memo

adopting the written statement filed by respondents

No.2 and 3 on 06.08.2016. Respondent No.4 filed a

written statement on 26.08.2019. The Trial Court

framed the issues. Thereafter matter was listed for

petitioners' evidence. The petitioners have lead

evidence and thereafter respondents have lead

evidence and matter was posted for arguments. At

that stage, the petitioners have filed an application

seeking for amendment of plaint. The petitioners

prior to the filing of the application for amendment of

plaint, had filed two applications seeking for

amendment of plaint i.e., for insertion of para

Nos.4(a) and 4(b). The said applications came to be

allowed and the petitioners have carried out

amendment and furnished an amended plaint. The

petitioners are filing application after application for

amendment of plaint. If the petitioners are permitted

to file application after application, then there will be

no end for litigation. If really the petitioners are bona

fide in filing an application for amendment of plaint,

the petitioners would have included the property in

the earlier application for amendment of plaint.

7. In this regard, it is necessary to consider

Order VI Rule 17, which reads as under:

"Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

As per the above proviso, no application for

amendment shall be allowed unless the parties could

not have raised the matter before the commencement

of trial. In the present case, the petitioners have not

explained due diligence that they could not raise the

matter before the commencement of trial.

8. The Hon'ble Apex Court in the case of ABDUL

REHMAN & ANR. VS. MOHD. RULDU & ORS., reported in

2012 AIR SCW 5419, has held at paragraphs 12, 13 &

16, as under:

"12) It is also brought to our notice that respondent Nos. 2 and 3 herein - transferees under the sale deed, are the nephews of the appellants herein and the transferors and the purchase of the suit land by them is void to their knowledge as they were equally bound by the judgment dated 20.12.1971 and compromise deed dated 04.07.1972 declaring that under the applicable customary law of inheritance to the parties therein, widows and daughters have no right of inheritance in the presence of the sons. It is the claim of the appellants that in view of the same, respondents -

transferees are not bona fide purchasers of

the suit land. Learned counsel for the appellants again brought to our notice that these facts were specifically stated in the un-amended plaint and, therefore, amendment seeking incorporation of relief of declaration that the sale deeds are void does not change the nature of the suit. Because of those allegations in the un- amended plaint, the same was denied by the defendants in their written statement and we are satisfied that the necessary factual matrix as regards the relief of cancellation was already on record and the same was an issue arising between the parties.

13) In view of the stand taken by the respondent Nos. 1-3 herein/Defendant Nos. 1-3 in their written statement and the observation of the High Court in the application filed for injunction, we are of the view that the proposed amendment to include a relief of declaration of title, in addition to the permanent injunction, is to

protect their interest and not to change the basic nature of the suit as alleged.

16) In the light of various principles which we have discussed and the factual matrix as demonstrated by learned counsel for the appellants, we are satisfied that the appellants have made out a case for amendment and by allowing the same, the respondents herein (Defendant Nos. 1-3) are in no way prejudiced and they are also entitled to file additional written statement if they so desire. Accordingly, the order of the trial court dated 06.06.2007 dismissing the application for amendment of plaint in Suit No. 320 of 2003 as well as the High Court in Civil Revision No. 4486 of 2007 dated 13.11.2007 are set aside. The application for amendment is allowed. Since the suit is of the year 2003, we direct the trial Court to dispose of the same within a period of six months from the date of receipt of copy of the judgment after affording opportunity to all the parties concerned. The appeal is allowed. No order as to costs."

9. It is clear from the said decision of the

Hon'ble Apex Court that if the application for

amendment is filed after the commencement of trial,

the parties have to explain due diligence that they

could not able to raise the matter before the

commencement of trial. In the present case, as

observed above, the petitioners have not explained

the due diligence that they could not have raised the

issue before the commencement of trial. As observed

above, the petitioners have already filed similar

applications and the same came to be allowed by the

Trial Court and petitioners were permitted to amend