Smt. Mahadevi W/O. Gangadhar ... vs Smt. Akkamahadevi W/O. Gangadhar ...
2022 Latest Caselaw 374 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 10th DAY OF JANUARY 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

           Writ Petition No.100067/2022 (GM-CPC)

Between

Smt. Mahadevi, W/o Gangadhar
Jeeragal, Age: 64 years,
Occ: Household Work & Agriculture,
R/o: C/o Bourawwa Kadakol,
At: Bidari, Tq: Jamkhandi,
Dist: Bagalkot-587301.                        ...Petitioner

(By Sri. Girish A.Yadwad, Advocate)

And

1. Smt. Akkamahadevi, W/o Gangadhar
    Jeeragal, Age: 64 years,
   Occ: Government Servant,
   R/o Halagali, Tq: Mudhol,
   Dist: Bagalkot-587116.

2. Veeranna, A/F Gangadhar
   Jeeragal, Age: 32 years,
   Occ: Agriculture,
   R/o Halagali, Tq: Mudhol,
   Dist: Bagalkot-587116.                  ...Respondents
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      This Writ Petition is filed under Articles 226 & 227 of the
Constitution of India praying to issue a writ in the nature of
certiorari to quash the impugned order dated 29.11.2021
passed by the I Additional District & Sessions Judge, Bagalkot
to sit at Jamkhandi on I.A. No.1 in R.A.No.102/2018 vide
Annexure-J.

      This Writ Petition coming on for Preliminary Hearing this
day, the Court made the following:

                            ORDER

The petitioner is the appellant in R.A. No.102/2018 on

the file of the I Additional District & Sessions Judge, Bagalkot,

sitting at Jamkhandi, (for short, 'the appellate Court'), and in

this appeal the petitioner has impugned the judgment and

decree dated 1st August 2018 in O.S. No.72/2016 on the file of

the Additional Senior Civil Judge & JMFC, Mudhol. The first

respondent's suit for a declaration declaring that the first

respondent is the exclusive owner of the immoveable property

bearing No.17/A/2 situate in Ward No.4-A of Halagali Village

and restraining the petitioner from interfering with the first

respondent's possession is partly decreed.

2. The petitioner has filed her application [I.A. No.I[

under Order VI Rule 17 of the Code of Civil Procedure, 1908 in

the aforesaid appeal for leave to amend the written statement.

The appellate Court has rejected the petitioner's application

observing that the petitioner has not sought for the

amendment at the first instance and if the petitioner is

permitted to carry out the amendment, it would tantamount to

setting the clock back and permitting a fresh trial. The

appellate Court has also observed that the present application

is filed to fill up the lacunae in the pleadings.

3. Shri. Girish A.Yadwad, the learned counsel for the

petitioner, submits that the petitioner though has filed the

application for amendment to include paragraph 12a in the

written statement to justify that her husband had sufficient

income to purchase the subject property from his vocation as a

tailor and his part-time vocation as a milk vending person, the

petitioner has also sought to raise a legal ground that the first

respondent's suit is barred by limitation. The appellate Court

should have considered at least the petitioner's application to

amend the written statement to include the defence that the

first respondent's suit was barred by limitation. The learned

counsel also submits that the question of limitation is a

question of law which has to be considered notwithstanding

the absence of a plea in this regard.

4. If the learned counsel for the petitioner is

categorical that the petitioner would not pursue the application

insofar as the inclusion of paragraph 12a and wants to contend

that that the other amendment is only to urge the question of

limitation as a question of law, this Court is of the considered

view that the petition could be disposed of with leave to the

petitioner, notwithstanding the impugned order, to persuade

the appellate Court to decide on the question of limitation as a

pure question of law based on the evidence on record, and the

appellate Court shall consider the same strictly in accordance

with law.

The petition stands disposed of accordingly.

Sd/-

JUDGE Kms