Chandrashekhar S/O Sidram ... vs Smt. Gangawwa S/O Basagouda Darur ...
2022 Latest Caselaw 12274 Kant

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                                     WP No. 103604 of 2022



IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

     DATED THIS THE 10TH DAY OF OCTOBER, 2022

                      BEFORE
     THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
     WRIT PETITION NO. 103604 OF 2022 (GM-CPC)


BETWEEN

CHANDRASHEKHAR S/O. SIDRAM GALAGALI
SINCE DECEASED BY HIS LRS

1)   VIMALAWWA W/O. RAMAPPA BAWACHI,
     AGE, 44 YEARS OCC. HOUSEHOLD
     R/O HIDAKAL TQ. RAIBAG
     DIST. BELAGAVI-591317

2)   CHANDRAWWA W/O. AJIT MAYANNAVAR,
     AGE. 39 YEARS OCC. HOUSEHOLD
     R/O HIDAKAL TQ. RAIBAG
     DIST. BELAGAVI-591317

3)   SAYAWWA W/O. BHARAMAPPA BIDARI,
     AGE. 36 YEARS OCC. HOUSEHOLD
     R/O HIDAKAL TQ. RAIBAG
     DIST. BELAGAVI-591317

4)   KARISIDDA S/O. CHANDRASHEKHAR GALAGALI,
     AGE. 36 YEARS OCC. AGRICULTURE
     R/O HIDAKAL TQ. RAIBAG
     DIST. BELAGAVI-591317.

5)   VASANT S/O. CHANDRASHEKHAR GALAGALI,
     AGE. 42 YEARS OCC. AGRICULTURE
     R/O HIDAKAL TQ. RAIBAG
     DIST. BELAGAVI-591317.           ...PETITIONERS

(BY SRI K.ANANDKUMAR    AND    SRI   MAHESH    WODEYAR,
ADVOCATES)
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                                     WP No. 103604 of 2022



AND:

SMT. GANGAWWA W/O. BASAGOUDA DARUR
SINCE DIED BY HER LRS.

1)     PARAGOUDA S/O. MURAGEPPA DARUR,
       AGE. 34 YEARS OCC. SSTUDENT
       R/O R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317.

2)     PAWADI S/O. MURAGEPPA DARUR,
       AGE. 40 YEARS OCC. AGRICULTURE,
       R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317

       BABU S/O. PARAPPA DARUR,
       SINCE DECEASED BY HIS LRS,

3)     SMT. PRABHAVATI W/O. BABU DARUR,
       AGE. 63 YEARS OCC. HOUSEHOLD WORK,
       R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317.

4)     SMT. JAYASHREE W/O. SUDHAKAR KHOT,
       AGE.49 YEAR OCC. HOUSEHOLD WORK,
       R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317.

5)     SMT. BHARATI W/O. NAGESH KHOT,
       AGE. 42 YEARS OCC. HOUSEHOLD WORK,
       R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317

6)     MAHANTESH S/O. BABU DARUR
       AGE. 37 YEARS OCC. AGRICULTURE,
       R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317.

7)     SIDDAPPA S/O. PARAPPA DARUR,
       AGE. 72 YEARS OCC. AGRICULTURE,
       R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317
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                                    WP No. 103604 of 2022



MALLAPPA S/O. PARAPPA DARUR
SINCE DECEASED BY HIS LRS

8)    SMT. GANGAWWA W/O. MALLAPPA DARUR,
      AGE. 59 YEARS OCC. HOUSEHOLD WORK,,
      R/O HIDAKAL TQ. RAIBAG
      DIST. BELAGAVI-591317

9)    SMT. NINGAVVA W/O. PRABHU HALOLLI
      AGE. 44 YEARS OCC. HOUSEHOLD WORK,,
      R/O HIDAKAL TQ. RAIBAG
      DIST. BELAGAVI-591317.

10)   DAREPPA S/O. MALLAPPA DARUR,
      AGE. 40 YEARS OCC. AGRICULTURE,
      R/O HIDAKAL TQ. RAIBAG
      DIST. BELAGAVI-591317.

11)   CHANNAPPA S/O . MALLAPPA DARUR,
      AGE. 36 YEARS OCC. AGRICULTURE,
      R/O HIDAKAL TQ. RAIBAG,
      DIST. BELAGAVI-591317.

SHIVAGOUDA BHIMAPPA DARUR,
SINCE DECEASED BY HIS LRS.

12)   SMT. INDRAWWA W/O. SHIVAGOUDA DARUR
      AGE. 90 YEARS OCC. NILL,
      R/O HIDAKAL TQ. RAIBAG
      DIST. BELAGAVI-591317.

13)   SHRISHAIL S/O. SHIVAGOUDA DARUR
      AGE. 69 YEARS OCC. AGRICULTURE,
      R/O HIDAKAL TQ. RAIBAG,
      DIST. BELAGAVI-591317.

14)   SANGAPPA S/O. SHIVAGOUDA DARUR
      AGE. 64 YEARS OCC. AGRICULTURE,
      R/O HIDAKAL TQ. RAIBAG
      DIST. BELAGAVI-591317.
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                                           WP No. 103604 of 2022



15)    NINGAPPA S/O. SHIVAGOUDA DARUR
       AGE. 62 YEARS OCC. AGRICULTURE,
       R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317.

16)    BHIMAPPA S/O. SHIVAGOUDA DARUR
       AGE. 70 YEARS OCC. AGRICULTURE,
       R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317.

17)    BASAPPA S/O. SHIVAGOUDA DARUR
       AGE. 69 YEARS OCC. AGRICULTURE,
       R/O HIDAKAL TQ. RAIBAG
       DIST. BELAGAVI-591317.
                                    ...          RESPONDENTS

(BY SRI R.L.MULLA ADV. FOR CAVEATOR/RESPONDENT NO.1)
(BY SRI S.A.NEELOPANT, ADV. FOR CAVEATOR/RESPONDENT
NO.1)

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A

WRIT    OR   ORDER   OR   DIRECTION    IN    THE   NATURE    OF

CERTIORARI QUASHING THE IMPUGNED ORDER DATED 16-08-

2022 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND

JMFC AT RAIBAG ON I.A.NO. 34 IN O.S.NO.82/2008 VIDE

ANNEXURE-A TO THE WRIT PETITION AND CONSEQUENTLY

DISMISS THE I.A.NO. 34      FILED     BY    THE RESPONDENTS

HEREIN.

       THIS PETITION COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT MADE THE FOLLOWING:
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                                          WP No. 103604 of 2022



                           ORDER

In a suit for declaration, an application filed by

respondents/plaintiffs to amend their plaint has been allowed

and this is questioned by way of this writ petition.

2. Learned counsel Sri Mahesh Wodeyar appearing for

petitioners/defendants submits that on an earlier occasion a

similar application for amendment putting forth the plea that

plaintiffs had succeeded to property under Will was refused

by trial Court and was also confirmed by this Court in Writ

Petition No.103040/2014(GM-CPC). It is stated, thereafter

an application was filed seeking permission to withdraw the

suit reserving liberty to file fresh suit and this application

was rejected by the trial Court, as against which, both

plaintiffs and defendants approached this Court in Writ

Petition Nos.113399 and 114766 of 2015 (GM-CPC). It is

submitted that in the operative portion of the said writ

petition the application for withdrawal of suit with liberty to

file fresh suit was actually dismissed and therefore a fresh

application for amendment could not have been entertained

by trial court.

WP No. 103604 of 2022

3. On the other hand, learned counsel for respondents

submits that as a matter of fact in Writ Petition No.113399

and 114766 of 2015(GM-CPC), this Court had set aside the

order on IA.No.XXX and specifically reserved liberty in favour

of petitioners (plaintiffs) to urge all contentions on merits

including Will dated 22.01.1990 and in view of this liberty,

the application for amendment was made was rightly allowed

by trial Court.

4. It is to be stated here that though in operative

portion, I.A.No.XXX is stated to have been dismissed,

however, in earlier portion of the operative order itself it is

clearly stated that impugned order dated 04.11.2015 by

which I.A.No.XXX was dismissed was set aside. The body of

Judgment also indicates that the order passed on I.A.No.XXX

was illegal and it had occasioned failure of justice and it

deserved to be set aside.

5. Since writ petition filed by plaintiffs challenging

refusal by the trial Court to reserve liberty to file fresh suit

was set aside and this Court further specifically reserved

liberty to petitioners/plaintiffs to urge all contentions on

WP No. 103604 of 2022

merits including Will dated 22.01.1990, the trial Court was

justified in granting amendment.

6. It is to be stated that order passed in Writ Petition

Nos.113399 and 114766 of 2015 has been accepted by

defendants and has attained finality. Thus, plaintiffs cannot

be denied the right to urge all contentions on merits of suit

including Will dated 22.01.1990 that they have set up.

7. In my view, impugned order is just and proper and

does not call for interference. As has been permitted in Writ

Petition Nos.113399 and 114766 of 2015, both

petitioners/plaintiffs are at liberty to urge all contentions on

merits including Will dated 22.01.1990 and

respondents/defendants are also at liberty to set up all

defenses that are available them in accordance with law.

With above observations, writ petition is dismissed.

SD JUDGE

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