Smt Sarojamma vs Sri Yathish
2023 Latest Caselaw 711 Kant

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                                                       WP No. 25826 of 2022




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 11TH DAY OF JANUARY, 2023

                                         BEFORE
                      THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
                      WRIT PETITION NO. 25826 OF 2022 (GM-CPC)
                 BETWEEN:

                 1.    SMT SAROJAMMA
                       D/O LATE SIDDAVEERAPPA
                       W/O LATE SIDDALINGAIAH
                       AGED ABOUT 78 YEARS
                       R/AT: NO.1486, 1ST CROSS
                       NEAR VINAYAKA TEMPLE
                       REDDY PALYA
                       BANGALORE - 560 017
                       RERPESENTED BY HER SPA HOLDER

                       SRI. MANJUNATH. S
                       S/O LATE SIDDALINGAIAH
                       AGED ABOUT 59 YEARS
                       R/AT NO.1486
                       VINAYAKA TEMPLE ROAD,
Digitally              REDDY PALYA
signed by
VIJAYA P               BANGALORE - 560 017
Location: High                                                ... PETITIONER
Court of
Karnataka
                 (BY SRI. NARASI REDDY G., ADVOCATE)

                 AND:

                 1.    SRI YATHISH
                       S/O LATE PUTTAVEERAMMA
                       GRAND SON OF LATE SIDDAVEERAPPA
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                                 WP No. 25826 of 2022




     AGE ABOUT 60 YEARS
     R/AT NO.68,
     ANJANAPURA
     BANGALORE - 560 062

2.   SRI. NANJUNDA
     S/O LATE PUTTAVEERAMMA
     GRAND SON OF LATE SIDDAVEERAPPA
     AGED ABOUT 58 YEARS
     R/AT NO.63,
     KASHI VISHWANATHA NILAYA
     5TH CROSS, 3RD MAIN
     CHAMARAJPET
     BANGLAORE - 560 018

3.   SRI. SHASHIDHARA
     S/O LATE PUTTAVEERAMMA
     GRAND SON OF LATE SIDDAVEERAPPA
     AGED ABOUT 54 YEARS
     R/AT: 13/80,
     SHANTHIPURA LAYOUT
     BEHIND GOVERNMENT HIGH SCHOOL
     BEGUR
     BANGALORE - 560 114

4.   SRI. MANJU
     S/O LATE PUTTAVEERAMMA
     GRAND SONOF LATE SIDDAVEERAPPA
     AGED ABOUT 52 YEARS
     R/AT: 13/80,
     SHANTHIPURA LAYOUT
     BEHIND GOVERNMENT HIGH SCHOOL
     BEGUR
     BANGALORE - 560 114
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                                  WP No. 25826 of 2022




5.   SRI. RENUKA PRASAD
     S/O LATE PUTTAVEERAMMA
     GRAND SON OF LATE SIDDAVEERAPPA
     AGED ABOUT 50 YEARS
     R/AT: NO.13/8
     THAVAREKERE
     NEAR BALAJI TALKIES
     MAGADI MAIN ROAD,
     BANGALORE DISTRICT - 560 029

6.   SMT. BHARATHI
     S/O LATE PUTTAVEERAMMA
     GRAND SON OF LATE SIDDAVEERAPPA
     AGED ABOUT 48 YEARS

7.   SMT. GOWRAMMA
     W/O LATE SIDDAPPA
     DAUGHTER IN LAW OF LATE SIDDAVEERAPPA
     AGED ABOUT 62 YEARS

8.   SRI.S. MANJUNATH
     S/O LATE SIDDAPPA
     GRAND SON OF LATE SIDDAVEERAPPA
     AGED ABOUT 51 YEARS

9.   SRI. BASAVARAJU
     S/O LATE SIDDAPPA
     GRAND SON OF LATE SIDDAVEERAPPA
     AGED ABOUT 49 YEARS

10. SRI.S. RENUKA
    S/O LATE SIDDAPPA
    GRAND SON OF LATE SIDDAVEERAPPA
    AGED ABOUT 54 YEARS

11. SMT. S. HEMA
    D/O LATE SIDDAPPA
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                                   WP No. 25826 of 2022




    GRAND DAUGHTER OF
    LATE SIDDAVEERAPPA
    AGED ABOUT 46 YEARS

    RESPONDENT NOS.8 TO 11 ARE
    R/AT NO.537,
    ANJENAYA TEMPLE ROAD,
    YESHWANTHAPURA
    BANGALORE - 560 022

12. SMT. C. ADILAKSHMI
    @ ADILAKSHMAMMA
    W/O H. GOPAL
    AGED ABOUT 79 YEARS
    R A/T: NO.1245/A
    4TH PHASE, GOKULA 1ST STAGE
    PORTION OF SY.NO.8/3
    YESHWANTHPUR
    BANGALORE - 560 022

13. SRI. PAVAN KUMAR
    S/O S. MANJUNATH
    AGED ABOUT 46 YEARS
    R/AT: MADANAYAKANA HOBLI
    MAHADEVAPURA POST
    DASANAPURA HOBLI
    NELAMANGALA TALUK
    BANGALORE URBAN DISTRICT
    BANGALORE - 562 123

                                       ... RESPONDENTS

(BY SRI. KRISHNA MURTHY M., ADVOCATE FOR R12;
    SRI D. GANGADHAR, ADVOCATE FOR R8, R10 & R11)

    THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS FROM THE LV ADDL . CITY CIVIL AND SESSIONS
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                                      WP No. 25826 of 2022




JUDGE AT BENGALURU CITY (CCH-56) IN O.S. NO.387/2010
AND TO SET ASIDE THE ORDER DATED 3.11.2022 PASSED IN
O.S.NO. 387/2010 ON THE FILE OF LV ADDL. CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU CITY (CCH-56) ON IA NO.XV
U/O 6 RULE 17 OF CPC AS PER ANNEXURE-A BY ALLOWING
THE WRIT PETITION AND ETC.

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



                         ORDER

Learned counsel Sri D.Gangadhar undertakes to file

Vakalath for respondent Nos.8, 10 and 11.

2. The petitioner who is the plaintiff has filed the

present writ petition seeking for setting aside the order

dated 30.11.2022 whereby the application (I.A.No.XV)

filed under Order VI Rule 17 r/w Section 151 C.P.C.,

seeking permission to amend the plaint has been rejected.

3. At the time of hearing the matter, learned counsel

for the petitioner has filed a memo which reads as

hereunder:-

WP No. 25826 of 2022

" The petitioner undertakes to amend the pleadings in the application and prayer C-2 (the second prayer) only in the amendment application. Further, the petitioner undertakes not to adduce any evidence on the amendment pleadings, after amendment of the pleadings and second prayer. The petitioner filed the amended plaint and addressed the arguments on main. Hence, this memo for undertaking as stated above."

4. It is noticed that the petitioner who is the

plaintiff has filed an application seeking to include certain

pleadings after para-12 as Para 12(a) and 12(b) and she

has also sought for amending the prayer portion by

inserting Para No.(c-1) and (c-2).

The proposed amendment sought for are as follows:-

"12(a). It is submitted that, One Sri Siddaveerappa is married to Smt. Gowramma, The Siddaveerappa and Gowramma had Three daughters and one Son namely Smt.Rudramma, Smt. Puttaveeramma (mother of defendant No.1 to

WP No. 25826 of 2022

6), Smt. Sarojamma (Plaintiff) and Sri Siddappa (father of Defendant No.8 to 11). Sri Siddaveerappa has purchased the item No.1 of the suit schedule property under the registered Sale deed dated 18-11-1964 in the name of his wife Smt. Gowramma and also in the name of his elder daughter Smt.Rudramma, Smt.Gowramma the mother of the plaintiff died intestate on 24-01-1984 leaving behind Smt.Rudramma, Smt. Puttaveeramma (mother of defendant No.1 to 6), Smt.Sarojamma (Plaintiff) and Sri Siddappa (father of Defendant No.8 to 11) as her legal representative to succeed her property. After the death of Smt. Gowramma the plaintiff mother of the defendant No.1 to 6 and Husband defendant No.7, the father of defendant No.8 to 11 have succeed the item No.1 of the suit schedule property. When such being fact Smt.Rudramma and Sri.Siddappa (husband of defendant No.7 and father of the defendant No.8 to 11) who have no manner of right, title or interest over the entire Item No.1 of the suit schedule property had created and executed the un-registered Sale agreement dated 23-04-1986 in favour of the defendant No.12 behind the back of the plaintiff, in order to deprive her legitimate share in it. Wherein the plaintiff and mother of the defendant No.1 to 6

WP No. 25826 of 2022

are not parties and they are not signatories to the said alleged Sale agreement dated 23-04-1986 and they have not received any sale consideration amount from the defendant No.12 or from anyone else. The said sale agreement is not valid one and defendant No.12 did not get any right over the Joint family property. Therefore, the Sale agreement dated 23-04-1986 created and executed by Smt. Rudramma and Sri Siddappa (husband of defendant No.7 and father of the defendant No.8 to

11) in-favour of defendant No.12 is not binding on the plaintiff share over the item No.1 of the suit schedule property.

12(b). It is submitted that, based on the created agreement of sale dated 23-04-1986 the defendant No.12 has filed suit for specific performance of contract in O.S. No.2711/1989 against the Smt.Rudramma and Sri.Siddappa and said suit came to decreed. Wherein the plaintiff Smt.Sarojamma is not party to the said suit. Therefore, the Judgment and decree obtained by the defendant No.12 in O.S. No.2711/1989 is not binding on the plaintiff share over the item No.1 of the suit schedule property.

WP No. 25826 of 2022

Add Prayer No.C-1 and C-2 as under:-

(c-1) Declare that the un-registered Sale agreement dated 23-04-1986 created and executed by Smt. Rudramma and Sri Siddappa (husband of defendant No.7 and father of the defendant No.8 to

11) in favour of defendant No.12 is not binding on the plaintiff share over the item No.1 of the suit schedule property.

(c-2) Declare that the Judgment and decree obtained by the defendant No.12 in O.S. No.2711/1989 on the file of City Civil Judge at Bengaluru is not binding on the plaintiff share over the item No.1 of the suit schedule property."

It must be noted that said application was filed when

the matter was posted for arguments on the main suit.

5. The learned counsel for petitioner submits that

evidence has already been let in and the proposed

amendment relates to narration of facts including as

regards to the proceedings in O.S.No.2711/1989 against

Smt.Rudramma and Sri.Siddappa which has been decreed

where present plaintiff is not a party. Accordingly, it is

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WP No. 25826 of 2022

submitted that the present prayers have also been sought

seeking declaration that the judgment and decree

obtained by defendant No.12 in O.S.No.2711/1989 is not

binding on the plaintiff's share over item No.1 of the suit

schedule property.

6. It is further noticed that the averments in the

proposed amendment at para 12(a) is essentially narration

of certain facts and also as regards the legal capacity of

defendant No.12 to enter into the agreement dated

23.04.1986.

7. At the time of hearing the matter, it is pointed out

by the learned counsel for the respondents that the

petitioner herein has impleaded herself as a party in

RFA No.1225/2009 and the said appeal has been filed

against the judgment and decree in O.S.No.2711/1989

and that all contentions regarding non-binding on the

judgment and decree passed in O.S.No.2711/1989 can be

addressed in the Regular First Appeal as well and

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WP No. 25826 of 2022

accordingly, the said prayer need not be allowed in the

present petition.

8. It is to be noticed that in light of the undertaking

by the learned counsel for petitioner that no further

evidence would be let in and as it is submitted that all

evidence relating to averments in Para 12(a) and 12(b)

have already been adduced before trial court, it would not

be necessary to adduce further evidence. Accordingly, the

contention of the defendants that trial would be protracted

would not arise.

9. Taking note of the nature of amendment in

para 12 (a) and 12 (b) which are basically narration of

facts relating to an agreement dated 23.04.1986 and the

judgment and decree for specific performance in

O.S.No.2711/1989, the averments relating to the said

suit and agreement may be permitted to be brought on

record more so, in light of the undertaking that no

evidence would be let in and accordingly, there would be

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WP No. 25826 of 2022

no further delay of the proceedings in O.S.No.387/2010.

However, insofar as the prayer that is sought for at prayer

(c-1), it must be noted that in light of the petitioner herein

being a party in RFA 1225/2009, all contentions relating to

the agreement of 23.04.1986 as well as

O.S.No.2711/1989 could be placed before the court in

appeal proceedings. Accordingly, it would not be necessary

to permit the plaintiff in the present proceedings to include

the prayer as sought for. No doubt the trial Court has

observed that application has been filed at a belated stage

but, it would be appropriate to permit the averments as it

relates to legal proceedings. This would ensure that

contentions relating to such legal proceedings need not be

raised for adjudication at the execution stage resulting in

undue delay.

10. Accordingly, the application is allowed in part

insofar as insertion of Para 12(a) and 12(b) after Para 12.

Insofar as insertion of Para No.(c-1) and (c-2) the prayer

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WP No. 25826 of 2022

is rejected. It is hereby clarified that the rejection of the

prayer at Para No.(c-1) and (c-2), such rejection ought not

be treated as being final in light of the petitioner being a

party in R.F.A. No.1225/2009 which is pending

adjudication.

11. Accordingly, the petition is disposed off.

necessary amendment to be carried out to the plaint

forthwith. It is clarified that both parties to cooperate in

early disposal of the suit.

Sd/-

JUDGE

NP