Karnataka High Court
Sri. Jayaprakash Gangadharappa ... vs Sri. Ashok Krishnappa Banakatti on 13 January, 2023
Bench: S.R. Krishna Kumar
-1-
WP No. 101269 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 101269/2022 (GM-CPC)
BETWEEN:
1. SRI. JAYAPRAKASH GANGADHARAPPA TENGINAKAI,
AGE 71 YEARS, OCC BUSINESS,
R/O VIJAYANAGAR, HUBBALLI-580032.
2. SMT. SAVITRIBAI W/O LATE JAGADISH KALYANSHETTY,
AGE 65 YEARS, OCC HOUSEDHOLD,
R/O VIJAYANAGAR, HUBBALLI-580032.
3. SRI ARVIND S/O LAT JAGADISH KALYANSHETTY,
AGE 48 YEARS, OCC BUSINESS,
R/O VIJAYANAGAR, HUBBALLI-580032.
4. SRI RITESH S/O LATE JAGADISH KALYANSHETTY,
AGE 48 YEARS, OCC BUSINESS,
R/O VIJAYANAGAR, HUBBALLI-580032.
5. SRI SACHIN S/O LATE JAGADISH KALYANSHETTY,
AGE 46 YEARS, OCC BUSINESS,
R/O VIJAYANAGAR, HUBBALLI-580032.
- PETITIONERS
(BY SRI. VINOD SHANKAR PAWAR, ADVOCATE)
CHANDRASHEKAR
LAXMAN
KATTIMANI AND:
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
1. SRI. ASHOK KRISHNAPPA BANAKATTI,
Date: 2023.01.20
10:21:12 +0530
AGE 61 YEARS, OCC BUSINESS,
R/O NEAR UNKAL LAKE,
UNKAL VILLAGE, HUBBALLI-580031.
2. SRI MALLAPPA KRISHNAPPA BANAKATTI,
AGE 59 YEARS, OCC BUSINESS,
R/O NEAR UNKAL LAKE,
UNKAL LAKE, HUBBALLI-580031.
3. SRI RAMAPPA KRISHNAPPA BANAKATTI,
AGE 54 YEARS, OCC BUSINESS,
R/ NEAR UNKAL LAKE, UNKAL LAKE,
HUBBLLI-580031.
-2-
WP No. 101269 of 2022
4. SRI GANGAPPA KRISHNAPPA BANAKATTI,
AGE 48 YEARS, OCC BUSINESS, R/ NEAR UNKAL LAKE,
UNKAL LAKE, HUBBLLI-580031.
5. SRI MARUTI KRISHNAPPA BANAKATTI,
AGE 46 YEARS, OCC BUSINESS, R/ NEAR UNKAL LAKE,
UNKAL LAKE, HUBBLLI-580031.
6. SMT MAINNAVV W/O KRISHNAPPA BANAKATTI,
AGE 85 YEARS, OCC HOUSEHOLD, R/ NEAR UNKAL LAKE,
UNKAL LAKE, HUBBLLI-580031.
7. SMT.SUBHADRA W/O ASHOK MOTE,
AGE MAJOR, OCC HOUSEHOLD WORK,
R/O NEAR UNKAL LAKE, UNKAL LAKE,
HUBBLLI-580031.
8. SMT. PARVATIDEVI W/O PARASAPPA TAMMANNAVAR,
AGE MAJOR, OCC HOUSEHOLD WORK,
R/ NEAR UNKAL LAKE, UNKAL LAKE,
HUBBLLI-580031.
9. SRI KISHORE S/O RICKBCHAND JAIN,
AGE MAJOR, OCC BUSINESS, R/O MARKET AREA,
NAVALGUND-582201.
10. SRI DINESH S/O RICKBCHAND JAIN,
AGE MAJOR, OCC BUSINESS,
R/O MARKET AREA, NAVALGUND-582201.
11. SMT. ARACHANA W/O SURESH SHAH,
AGE MAJOR, OCC HOUSEHOLD WORK,
R/O MARKET AREA, NAVALGUND -582101
- RESPONDENTS
(BY SRI. H.R. GUNDAPPA, ADVOCATE FOR R1 TO R5,
SMT. JYOTI P. DESAI AND S.B. VANDAKUDARI,
ADVOCATES FOR R11,
R6 - DECEASED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE
OF CERTIORARI QUASHING THE ORDER DATED 08.12.2021 PASSED BY I
ADDITIONAL SENIOR CIVIL JUDGE HUBBALLI IN OS.NO.233/2003 VIDE
ANNEXURE-H & ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
-3-
WP No. 101269 of 2022
ORDER
This writ petition by the petitioner/ plaintiff in O.S. No.
233/2003 on the file of the First Addl. Sr. Civil Judge, Hubballi, is
directed against the impugned order on I.A. No. 17 filed by the
plaintiff under Order VI Rule 17 CPC seeking amendment of the
plaint which was rejected by the trial Court.
2. The respondents No.1 to 5 and the respondent No. 11 had
filed objections to I.A. No. 17, which is the subject matter of the
present writ petition and the remaining respondents did not file
objections to the said application and consequently notice to the
other respondents is dispensed with. Memo filed for treating
respondents No.1 to 5, 7 and 8 as the legal representatives of
deceased respondent No.6 is allowed.
3. I have heard learned counsel for the petitioner, learned
counsel for respondents No.1 to 5 and the learned counsel for
respondent No.11 and perused the material on record including the
impugned order.
4. A perusal of the material on record indicates that in the
aforesaid suit filed by the petitioner/ plaintiff against the
WP No. 101269 of 2022
respondents, the respondents No.1 to 5 were arrayed as
defendants No.1 to 5 while the respondent No.11 was arrayed as
defendant No.13 and they are contesting the suit. During the
course of the suit, the respondent No. 11/ defendant No.13 filed
I.A. No. 14 u/S 151 CPC seeking dismissal of the suit. The said
application was opposed by the petitioners/ plaintiffs pursuant to
which the trial Court proceeded to hear the parties and allowed I.A.
No. 14 filed by respondent No.11/ defendant No.13 and dismissed
the suit filed by the petitioners/ plaintiffs. Aggrieved by the
impugned judgment and decree passed by the trial Court as well as
allowing of I.A. No. 14, the petitioners/ plaintiffs preferred an appeal
in R.A. No. 87/2019 before the first appellate Court. The first
appellate Court formulated the following points for consideration.
"1. Whether the appellant has made out the grounds that the
Trial Court has erred by dismissing the suit by allowing the
application filed U/Sec. 151 of CPC by the defendant No. 13?
Thus it calls for an interference in the hands of this Court?
2. What order"'
5. After hearing the parties, the first appellate Court answered
point No.1 in the affirmative in favour of the petitioners/ plaintiffs
thereby holding that the trial Court committed an error in allowing
I.A. No. 14 filed by the respondent No.11/defendant No.13 and set
WP No. 101269 of 2022
aside the order dated 28.02.2019 passed on I.A. No. 14 by the trial
court and consequently remanded the matter back to the trial
Court. The operative portion of the order passed by the first
appellate Court in R.A. No. 87/2019 is as follows:
"Appeal filed by the appellant u/O 41 Rule 1 R/w Sec. 96 of
C.P.C. is hereby allowed.
The order of the learned I Addl. Senior Civil Judge, Hubballi
passed u/Sec. 151 of CPC on I.A. No. 14 dated 28.02.2019 in
O.S. No. 233/2003 is hereby set aside.
By acting u/O 41 Rule 23 of C.P.C. remanded the suit on
the board of the trial Court for conducting trial, from the stage it
was terminated.
Further, its been directed the trial court to allow the parties
to amend their pleadings, if sought, subject to limitation.
The parties are directed to appear before the trial Court on
7.10.2021, without expecting the further notice from the trial Court.
The trial Court shall dispose of the suit, as expedition as
possible.
Send the TCR along with the copy of this judgment to the
trial Court."
6. It is an undisputed fact that when I.A. No. 14 had been filed
by the respondent No. 11/ defendant No. 13, I.A. No. 17 filed by the
petitioners/ plaintiffs was still pending consideration and has not
been disposed by the trial Court when it passed the order dated
28.02.2019.
WP No. 101269 of 2022
7. It is relevant to note that the matter was posted before the
trial Court on 28.02.2019 for consideration of I.A. No. 14 filed by
the respondent No. 11/ defendant No. 13 on which day the
petitioners/ plaintiffs filed instant I.A. No. 17 seeking amendment of
plaint. As stated supra, since the trial Court proceeded to allow I.A.
No. 14 and dismissed the suit, the question of considering I.A. No.
17 at that stage did not arise and the same was not disposed of by
the trial Court and had been rendered infructuous on account of the
suit itself having been dismissed by the trial Court.
8. In this context it is significant to note that in addition to setting
aside the order on I.A. No. 14 and remanding the matter back to
the trial Court, the first appellate Court directed the trial Court to
allow the parties to amend the very pleadings if sought, subject to
limitation. Under these circumstances, since I.A. No. 17 had not
been disposed by the trial Court on 28.02.2019 and the same had
been rendered infructuous, the trial Court after remand ought to
have considered I.A. No. 17 filed by the plaintiffs bearing in mind
the direction issued by the first appellate Court which permitted the
parties including the petitioners/ plaintiffs to amend their pleadings
by considering I.A. No. 17 and failure on the part of the trial Court
WP No. 101269 of 2022
to consider this vital aspect of the matter and ignoring the direction
of the first appellate Court is clearly a patent illegality and error
which has occasioned failure of justice warranting interference by
this Court in the present writ petition.
9. A perusal of the impugned order passed by the trial Court will
indicate the ground on which the trial Court has rejected the
application is that the same is taken by limitation. In this context,
the trial Court failed to consider the well settled principles
governing amendment of pleadings which postulate that if an
amendment is opposed on the ground that it is barred by limitation,
then the Court ought to allow the application subject to the
condition that the amendment shall be reckoned from the date of
filing of the application and shall not relate back to the date of
institution of the suit and the question/ issue of limitation would
have to be kept open to be decided at the time of final disposal of
the suit. It is therefore clear that the trial Court committed an error
in rejecting the application on the ground that it is barred by
limitation without appreciating that a conditional order permitting
amendment by reckoning the proposed amendment from the date
of application and not relating back to the date of suit would have
WP No. 101269 of 2022
been met the ends of justice and consequently reserving liberty in
favour of the defendants to file additional written statement to the
amended plaint and leaving open all contentions including the
issue of limitation, the application for amendment deserves to be
allowed.
10. In the result, I pass the following order.
ORDER
1) Writ Petition is allowed;
2) Impugned order dated 08.12.2021 passed by the First Addl.
Sr. Civil Judge, Hubballi, in O.S. No. 233/2003 on I.A. No. 17 vide
Annexure-H is set aside;
3) I.A. No. 17 filed by the petitioners is allowed subject to the
condition that the proposed amendment shall not relate back to the
date of suit but shall be reckoned/ considered from 28.02.2019, on
which date I.A. No. 17 was filed;
4) The question / issue / defence of limitation to file the suit as
well as in relation to the proposed amendment is kept open to be
adjudicated at the time of final disposal of the suit;
5) Respondents are at liberty to file additional written statement;
WP No. 101269 of 2022
6) All rival contentions on all aspects of the matter including
amendment, are kept open and the same are to be decided by the
trial Court and no opinion is expressed on the same.
7) Since the suit is of the year 2003, the trial Court is directed to
dispose of the suit on merits as expeditiously as possible preferably
within a period of six months from the date of receipt of a copy of
this order.
SD
JUDGE
BVV
