Karnataka High Court

M. E. Chandrappa vs M. E. Basavaraj on 18 December, 2023

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                  WP No. 20479 of 2022




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 18TH DAY OF DECEMBER, 2023

                                         BEFORE

                         THE HON'BLE MR JUSTICE S.G.PANDIT

                     WRIT PETITION NO. 20479 OF 2022 (GM-CPC)

                BETWEEN:

                M. E. CHANDRAPPA
                S/O. LATE M. ESHWARAPPA,
                AGED ABOUT 66 YEARS,
                RESIDING AT NISARGA,
                MIG 68, KHB COLONY,
                GOPAL GOWDA EXTENSION,
                SHIVAMOGGA-577 205.
                                                            ...PETITIONER
                (BY SRI. S SREEVATSA, SR.COUNSEL A/W
                 SRI LEELESH KRISHNA, ADV.)

                AND:

                1.    M. E. BASAVARAJ
Digitally
signed by A K         S/O. LATE ESHWARAPPA,
CHANDRIKA             AGED ABOUT 62 YEARS,
Location:             R/AT SUDARSHAN NILAYA,
HIGH COURT
OF                    SHIVAPPA NAIKA EXTENSION,
KARNATAKA
                      2ND CROSS, VINOBHA NAGAR,
                      SHIVAMOGGA-577 205.

                2.    SMT. NARMADA
                      W/O. LATE M. E. RUDRESH,
                      AGED ABOUT 51 YEARS,

                3.    KUM. AISHWARYA
                      D/O. LATE M. E. RUDRESH,
                      AGED ABOUT 28 YEARS,
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                                    WP No. 20479 of 2022




     R2 AND R3 ARE
     R/AT NO.1640/2,
     OPP. TO KEB OFFICE,
     HADADI ROAD,
     DAVANAGERE-577 001.

4.   SMT. ANNAPURNA
     W/O. LATE MRUTHUNJAYA,
     AGED ABOUT 71 YEARS,

5.   SRI. SANJAY
     S/O. LATE MRUTHUNJAYA,
     AGED ABOUT 50 YEARS,

     R4 AND R5 BOTH ARE PRESENTLY
     R/AT B2, VICEROY APARTMENTS,
     BEHIND MOTHERHOOD HOSPITAL,
     SARJAPUR ROAD,
     BENGALURU-560 035.

6.   SRI. RAVI
     S/O. LATE MANJUNATH,
     AGED ABOUT 45 YEARS,

7.   SRI. RAJU @ VIRUPAKSHA
     S/O. LATE MANJUNATH,
     AGED ABOUT 38 YEARS,

8.   SMT. DAKSHAYANI
     D/O. LATE MANJUNATH,
     AGED ABOUT 50 YEARS,

9.   SMT. SHASHI
     D/O. LATE MANJUNATH,
     AGED ABOUT 48 YEARS,

     R6 TO 9 ARE CURRENTLY R/AT
     AGARADAHALLI VILLAGE,
     HOLEHONNURU HOBLI,
     SHIVAMOGGA TALUK-577 227.
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                                 WP No. 20479 of 2022




10. SRI. M. E. MALLESH
    S/O. LATE M. ESHWARAPPA,
    AGED ABOUT 54 YEARS,
    R/AT SREE SHAILA,
    HOUSE NO.155, 3RD CROSS,
    RAJENDRANAGAR EXTENSION,
    SHIVAMOGGA-577 205.

11. SMT. M. E. SHARADAMMA
    D/O. LATE M. ESHWARAPPA,
    W/O. SRI. G. SOMASHEKARAPPA,
    AGED ABOUT 68 YEARS,
    R/AT NO. 318, SHIVA NILAYA,
    NEAR OLD WATER TANK 1ST STAGE,
    VINOBHA NAGAR,
    SHIVAMOGGA-577 204.

12. SMT. M. E. NETRAVATHI
    D/O. LATE M. ESHWARAPPA,
    W/O. SRI. K. C. RAJAPPA,
    AGED ABOUT 60 YEARS,
    R/AT NO.185, BASAVAKRUPA,
    3RD CROSS, KANAKA LAYOUT,
    VINOBHA NAGAR,
    SHIVAMOGGA-577 204.

13. SMT. M. E. LEELA
    W/O. DR. Y. S. MANJUNATHA,
    D/O. LATE M. ESHWARAPPA,
    AGED ABOUT 43 YEARS.
    C/O. BASAVESHWARA NURSING HOME,
    TILAK NAGAR,
    SHIVAMOGGA-577 204.

14. SMT. M. E. PUSHPA
    W/O. SHIVU,
    AGED ABOUT 43 YEARS,
    R/O. LOS ANGELES, USA,
    C/O. BENAKAPPA,
    RETIRED ENGINEER,
    OPP. GANDHINAGAR,
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                                        WP No. 20479 of 2022




     FOREST OFFICE, TILAK NAGAR,
     SHIVAMOGGA-577 204.
                                                ...RESPONDENTS

(BY SRI. VIGHNESHWARA SHASTRY, SR. COUNSEL A/W
 SRI K.A. PRAKASH, ADV. FOR R10
 SRI N VENKATARAMAN, ADV. FOR R1 TO R3 AND R6
 V/O DATED 20.10.2022 SERVICE OF NOTICE TO
 R4 TO R9 AND R11 TO R13 STANDS D/W)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 01.09.2022 ANNEXURE-A PASSED
BY THE I ADDL. SR. CIVIL JUDGE AND CJM SHIVAMOGGA IN
O.S.NO.222/2006 (TRIAL COURT) AND ALLOW THE IA NO.36
(ANNXURE-F1) FILED BY THE DEFENDANT NO.7/PETITIONER
HEREIN UNDER ORDER 8 RULE 9 READ WITH SECTION 15 OF
CODE OF CIVIL PROCEDURE 1908.

       THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The petitioner/defendant No.7 in O.S.No.222/2006

on the file of I Additional Senior Civil Judge and CJM,

Shivamogga is before this Court, aggrieved by order dated

01.09.2022 rejecting I.A. No.36 filed under Order VIII

Rule 9 of CPC seeking leave to file rejoinder.

2. Heard learned senior counsel Sri.Sreevatsa for

learned counsel Sri.Leelesh Krishna for petitioner and

learned senior counsel Sri.Vigneshwar S Shastry for

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learned counsel Sri.K.A.Prakash, for respondent No.10 and

learned counsel Sri.N.Venkataraman, for respondents No.1

to 3 and 6. Perused the writ petition papers.

3. Learned senior counsel Sri.Sreevatsa for petitioner

would submit that earlier the suit (O.S.No.272/2006) was

decreed under judgment and decree dated 03.10.2012

and the same was the subject matter of R.A.No.232/2012.

The said R.A. was allowed by setting aside the judgment

and decree dated 03.10.2012 remanding the matter to the

trial Court for fresh consideration in accordance with law.

The said R.A. was the subject matter of MSA No.124/2017.

This Court, by order dated 09.08.2021 affirmed the

remand order with certain observations. Learned senior

counsel for the petitioner would submit that thereafter,

petitioner/defendant No.7 filed I.A.No.36 under Order VIII

Rule 9 of CPC enclosing the rejoinder and requested the

Court to take on record the rejoinder. Learned counsel for

the petitioner would submit that the rejoinder filed by the

petitioner/defendant No.7 was in terms of remand order

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which permitted the parties to file additional pleadings in

the suit. Learned senior counsel would further submit that

the rejoinder of defendant No.7/petitioner herein was to

explain the pleadings that Eshwarappa was the absolute

owner of the suit schedule property. Further, it is

submitted that filing of rejoinder was necessitated because

defendants No.8 and 9 transposed themselves as plaintiffs

and petitioner/defendant No.7 has to treat the written

statement of defendants No.8 and 9 as plaint and has to

answer those contentions. Thus, it necessitated the

petitioner/defendant No.7 to file rejoinder. It is submitted

that the trial Court committed an error in rejecting the

same without appreciating the fact that rejoinder was

necessitated by transposition as well as to explain that

Eshwarappa was the original propositus. Thus, learned

senior counsel would pray for allowing the writ petition

and to allow I.A.No.26 to take on record the rejoinder.

4. Per contra, learned senior counsel Sri.Vigneshwar

S.Shastry would support the order passed by the trial

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Court and submits that the petitioner/defendant No.7 in

his earlier written statement had stated that defendant

No.5 had executed gift deed in favour of defendant No.6

and defendant No.6 is in peaceful possession and

enjoyment of the property which came to be transferred

under gift deed. On that basis, it is stated that the

plaintiff is not entitled for any relief as claimed. Learned

counsel points out that, in the rejoinder the

petitioner/defendant No.7 has totally changed his defense

and has made out a new case at paragraphs 5 and 6 of

the rejoinder, which would state that defendant No.6 in

collusion and connivance with the mother got created

several documents so as to enrich himself illegally as she

being an illiterate, had no worldly knowledge. Further, it

is alleged against defendant No.6 that taking undue

advantage of the same, he got created the documents.

Thus, he would submit that such a new plea cannot be

taken up in the rejoinder statement. Further, learned

senior counsel would submit that if the rejoinder of the

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petitioner/defendant No.7 is allowed, it would totally

change the nature of defense of the petitioner/plaintiff.

5. On hearing the learned counsel for both the parties

and on perusal of the writ petition papers, I am of the

view that the trial Court rightly by reasoned order rejected

I.A.No.36 filed under Order VIII Rule 9 of CPC. Impugned

order is neither perverse nor suffers from any material

irregularity so as to warrant interference under Article 227

of the Constitution of India.

6. Suit of the respondents/plaintiffs is one for partition

and for execution and registration of detailed deed of

partition as per the unregistered partition deed dated

16.06.1993. Initially, suit was decreed under judgment

and decree dated 03.10.2012 which was subject matter of

R.A.No.232/2012. Said R.A was allowed by setting aside

judgment and decree dated 03.10.2012. Said remand

order was the subject matter of MSA.No.124/2017 which

was disposed of by this Court by order dated 09.08.2021

confirming the remand order with certain observations.

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Relevant portion of Judgment in R.A.No.232/2012 reads as

follows:

"The plaintiff shall implead all the necessary parties in the suit and plaintiff is at liberty to file additional pleadings in the light of subsequent events and the defendants are also permitted to raise any additional plea if they are advised so."

First Appellate Court granted the parties, liberty to file

additional pleadings in the light of subsequent events and

also observed that defendants are also permitted to raise

any additional plea, if they are advised so. In the guise of

filing additional plea in terms of the above liberty,

petitioner/defendant No.7 cannot take or raise entirely a

new plea by way of rejoinder or replication.

7. It is settled position of law that rejoinder or

replication could be filed to explain contentions already

taken, but cannot raise new plea or make out new case.

8. Petitioner/defendant No.7 in his written statement filed

originally had contended as follows at paragraph No. 9:

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"9. This defendant submits that, item 2 Sy.No.47/1 A of Agaradahalli and item 4 Sy.No.66/1B of Agaradahalli shown in G schedule are the absolute Sthridhana property of the defendant No.5 and nobody can question the alienation of these two properties by defendant No.5. The defendant No.5 has executed gift deeds in favour of 6th defendant with respect to the properties purchased by her husband in his name out of income from the properties allotted to the share of defendant No.6. The 6th defendant is in peaceful possession and enjoyment of properties which came to be transferred under the gift deeds. Hence, the plaintiff is not entitled for any of the reliefs claimed in the suit."

Petitioner/defendant No.7 contended that defendant No.5

had executed gift deed in favour of 6th defendant with

respect to properties purchased by her husband in his

name out of income from the properties allotted to the

share of defendant No.6 and it is also contended that

defendant No.6 is in peaceful possession and enjoyment of

the properties. Hence, plaintiff is not entitled for any of the

reliefs.

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9. By way of rejoinder/replication, petitioner/defendant

No.7 intends to totally take a different contention and

different stand altogether at paragraphs 5 and 6 of the

rejoinder statement, which reads as follows:

"5. It is submitted that the item No.2 of the G schedule namely Sy.No.47/1A of Agaradahalli village was the property acquired by the defendant No.5 from her paternal side. Hence that was her Sthridhana property. Hence illegally the defendant No.6 got created the gift deed from his mother Smt.Rudramma. Whereas item No.4 of the G schedule namely the land bearing Sy.No.66/1B renumbered as 29 was property acquired by the father of this defendant in the name of defendant No.5 and as such it is also partiable property.

6. It is stated that the item No.6 of the suit G schedule property is the rice mill building situated at Agaradahalli village and it is submitted that it is a joint family property and the said rice mill was owned by the father of this defendant and it generating good amount of income. Further it is submitted that the 6th defendant in collusion and connivance with our mother got created several documents so as to enrich himself illegally as our mother had no worldly knowledge as she was illiterate. The 6th defendant took the undue

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advantage of the same and got created the document. It is submitted that the alleged documents have no legal sanctity as the mother of this defendant Rudramma had no right to execute such documents of gift and others in favour of the 6th defendant. It is submitted that all the sons of Eashwarappa are the partners of said rice mill subsequent to the 1976. It is submitted that barring the properties that were allotted to the family sharers in a family partition dated 15.04.1972 the rest of the properties that are available and acquired by the father of this defendant are liable to be partitioned as per law."

In the above paragraphs of rejoinder, petitioner/defendant

No.7 intends to contend that 6th defendant in collusion and

connivance with mother, got created several documents so

as to enrich himself illegally and taking undue advantage

of the same, got created the documents.

10. Trial Court rightly observed that subsequent

pleadings is provided to supply what might have been

omitted inadvertently or unintentionally or to deny or

clarify the facts stated in the pleadings of the opposite

party. In the case on hand, rejoinder is not to explain or

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