Karnataka High Court
Sri Sharanappa S/O Basappa Kumbar ... vs Sri Hanumantappa Alias Hemant S/O ... on 7 June, 2023
Bench: Pradeep Singh Yerur
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WP No. 103287 of 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 103287 OF 2022 (GM-CPC)
BETWEEN:
SRI SHARANAPPA
S/O. BASAPPA KUMBAR,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O. KANDAKUR, TQ: KUSHTAGI,
DIST: KOPPAL, PIN- 583277.
...PETITIONER
(BY SRI D.V.PATTAR, ADVOCATE.)
AND:
1. SRI HANUMANTAPPA @ HEMANT
S/O. BASAPPA KUMBAR,
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O. KANDAKUR, TQ: KUSHTAGI,
DIST: KOPPAL, PIN-583277.
VIJAYALAKSHMI
M KANKUPPI SMT. VEERAMMA
High Court of
Karnataka,
Dharwad
W/O. BASAPPA KUMBAR,
R/O. KANDAKUR, TQ: KUSHTAGI,
DIST: KOPPAL , PIN-583277.
SINCE DEAD BY HER LRS.
2. SRI KALAKAPPA
S/O. BASAPPA KUMBAR (KANDAKUR)
AGE: 60 YEARS OCC: AGRICULTURE,
R/O. HULIYAPUR, POST: HULIYAPUR,
TQ: KUSHTAGI, DIST: KOPPAL,
PIN-583277.
SRI BASAPPA @ SANNABASAPPA
S/O. SANNA NINGAPPA
@ NINGAPPA KUMBAR,
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WP No. 103287 of 2022
R/O. INDARAGI, TQ:DIST: KOPPAL,
SINCE DECEASED BY HIS LRS.
3. SMT. MALLAMMA W/O. BASAPPA
@ SANNABASAPPA KUMBAR,
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O. INDARAGI, TQ & DIST: KOPPAL,
PIN- 582114.
4. SRI KALAKAPPA
S/O. BASAPPA @ SANNABASAPPA KUMBAR,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O. MARISHANTAVEERA NILAYA,
B.T.PATIL NAGAR, KOPPAL,
TQ & DIST: KOPPAL-582114.
5. SRI NAGAPPA S/O. BASAPPA
@ SANNABASAPPA KUMBAR,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. INDARAGI, TQ & DIST: KOPPAL,
PIN-582114.
6. SRI BASAVARAJ S/O. BASAPPA
@ SANNABASAPPA KUMBAR,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O. VISHWACHETAN NILAY,
BEHIND MATA HOTEL, KOPPAL,
TQ & DIST: KOPPAL-582114.
7. SMT. NINGAMMA
W/O. MALLIKARJUN KUMBAR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. RAJUR, TQ: RON, DIST: GADAG,
PIN-582209.
8. SRI BOJARAJ S/O. BASAPPA
@ SANNABASAPPA KUMBAR,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O. INDARAGI, TQ & DIST: KOPPAL,
PIN-582114.
9. SMT. RATNAMMA
W/O. SHIVAPUTRAPPA KUMBAR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. GONDABAL, TQ & DIST: KOPPAL,
PIN-582114.
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WP No. 103287 of 2022
10. SMT. AKKAMMA W/O. PAMPAPATI KUMBAR,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. INDARAGI, TQ & DIST: KOPPAL,
PIN-582114.
11. SMT. GURUSHIDDAMMA
W/O. RAVI KUMBAR,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. SAPTAGIRI 2ND CROSS,
GADDANAKERI, TQ: DIST: BAGALKOTE,
PIN-581701.
12. SRI IESHAPPA
S/O. RUDRAPPA KUMBAR,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. INDARAGI, TQ & DIST: KOPPAL,
PIN-582114.
13. SRI PAMPATI S/O. SANNA NINGAPPA
@ NINGAPPA KUMBAR,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. INDARAGI, TQ & DIST: KOPPAL,
PIN-582114.
...RESPONDENTS
(BY SRI MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR RESPONDENT
NOS. 4, 6, 8 AND 13;
NOTICE TO RESPONDENT NOS.1, 3, 5, 7, 9, 10, 11 & 12 is SERVED.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER ON IA
NO.IX FILED UNDER ORDER 6 RULE 17 read with section 151 OF
CPC, IN O.S. NO.478/2012, BY THE DEFENDANTS VIDE ORDER
DATED 16.04.2018, PASSED BY THE ADDITIONAL CIVIL JUDGE AND
JMFC, KUSHTAGI, VIDE ANNEXURE-G, ETC.,.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 103287 of 2022
ORDER
This petition is filed by the petitioner who is
defendant No.3 before the trial Court, for a writ of
certiorari to quash the order dated 16.04.2018, passed on
I.A.No.9 filed under Order 6 Rule 17 read with section 151
of CPC, in O.S.No.478/2012.
2. Petitioner/defendant No.3 filed his written
statement in O.S.No.478/2012 by way of adopting the
written statement filed by defendant No.1. Pursuant to the
adoption of the written statement, the present petitioner
filed an application seeking amendment of the written
statement for incorporating the words 'out of which 6
acres 17 guntas' in the written statement in paragraph
No.6 at internal page No.3, on the ground that there was a
typographical mistake the actual measurement was
wrongly mentioned. This application came to be objected
by respondent/plaintiff and after hearing both the parties,
the trial Court has dismissed the application for the
reasons stated therein.
WP No. 103287 of 2022
3. Learned counsel for petitioner contends that
rejection of the application is bad in law as petitioner is
only seeking to amend the written statement at paragraph
No.6 at page No.3 by incorporating the words 'out of
which 6 acres 17 guntas' is sought to be inserted. This
insertion and amendment would not cause any change in
the cause of action or nature of the suit and that it would
not affect the plaintiff adversely. On these grounds he
seeks to allow the writ petition, consequently to allow the
application for amendment and set aside the order passed
by the trial Court.
4. Per contra, learned counsel for respondent No.4
Sri Mrutyunjay S. Hallikeri, who is one of the plaintiffs
before the trial Court, vehemently contends that there is
no illegality or perversity in the order passed by the trial
Court. He sustains the said order and he further contends
that the present petitioner being defendant No.3 had
adopted the written statement of defendant No.1 and
thereafter kept quite till recording of the evidence and filed
WP No. 103287 of 2022
an application thereafter to incorporate these words in the
written statement.
5. Learned counsel for respondent/plaintiff
contends that the insertion so sought for in the application
for amendment would certainly change the nature of the
suit and the admission already made by the defendant in
the previous suit in O.S.No.173/2012 in which case
defendant No.3 had mentioned the total extent of 12 acres
21 guntas in Sy.No.189 and obtained judgment and
decree in his favour. The said judgment and decree is
challenged by the respondent herein who is the plaintiff in
the suit in O.S.No478/2012. The prayer sought for by the
plaintiff in his suit is as under:
PRAYER
Suit of the plaintiffs may kindly be,
decreed as follows:
1. The plaintiffs be, declared as the joint-
owners & possessors of the suit schedule
properties.
2. The defendants, their men, agents, or
anybody claiming through them, etc.,
may kindly be, restrained Perpetually
WP No. 103287 of 2022
from causing obstruction in the suit
schedule properties.
3. It be, further declared that, the Decree
passed in O.S.No.173/2012 on the file of
Hon'ble Civil Judge Court Kushtagi
dt:17-04-2012 & 23-04-2012 is a nullity
and not binding on the plaintiffs.
4. Costs of the suit may kindly be, awarded
in favour of plaintiffs.
5. That, any other relief for which the
plaintiffs are entitling for, within the
discretion of the Hon'ble Court may kindly
be, awarded in favour of the plaintiffs.
6. On a perusal of this prayer, it is the contention
of the learned counsel for respondent/plaintiff that the
very decree obtained in the previous suit by the petitioner
is fraudulent and therefore if such an admission which is
made by the petitioner in the previous suit is permitted to
be withdrawn, the very purpose of the prayer No.3 in the
present suit i.e., O.S.No.478/2012 and the challenge
made to the previous suit will be jeopardized and would be
compromised. Therefore, he contends that the admission
made in the earlier suit on which a decree has been
obtained by the petitioner cannot be permitted to be
withdrawn and such insertions are impermissible when
WP No. 103287 of 2022
there is an admission made in the previous suit. He also
contends that the application for amendment came to be
filed on 15.03.2018 and the application came to be
dismissed on 16.04.2018 and thereafter the recording of
evidence has proceeded in the trial Court and the
petitioner/defendant has also adduced his evidence.
7. This being the state of affairs, the present writ
petition is filed on 17.08.2022. After filing of the writ
petition, no interim order was passed in favour of the
petitioner till 12.01.2023, on which date the interim order
was granted by this Court staying all further proceedings.
8. On a careful perusal of the list of dates, the
application which is filed by the petitioner herein is on
15.03.2018. Order was passed on 16.04.2018 and the
petitioner herein has continued with the recording of
evidence of the parties before the trial Court and files the
present writ petition in August 2022. Having not secured
any order, on 12.1.2023 obtains an order from this Court
WP No. 103287 of 2022
which goes to show that the writ petition is filed after four
years of the passing of the impugned order.
9. The conduct of the petitioner is apparently
evident from the records with regard to the challenge
made by the petitioner of the impugned order after a
period of 4 years is itself not very encouraging and not
showing bona-fides of the petitioner. On the merits of the
matter of the application for insertion of the words to be
carried out by way of an amendment, trial Court is right in
observing and giving a finding that the petitioner in the
earlier suit had admitted to the fact that he was a owner
of the property of 12 acre 21 guntas in Sy.No.189 and
obtained the judgment and decree of declaration and
injunction. The said suit is put in challenge by respondent
No.4 herein. The admission having been made in the
previous suit by the petitioner with regard to his
ownership of 12 acre 21 guntas, now is sought to be
withdrawn and seeking an insertion of 6 acre 17 guntas. If
this amendment is permitted to be allowed and the
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WP No. 103287 of 2022
insertions accepted, the fallout of the same would be
withdrawal of the admission made by the petitioner in the
previous suit that he was the owner of 12 acre 21 guntas
in Sy.No.189 in O.S.No.173/2012 and other aspect as
permitting the petitioner to take back his admission which
creates and changes the nature of the defence put forth by
the petitioner in his written statement. The written
statement of defendant No.1 is filed on 11.03.2013
whereas, the amendment sought for by the
petitioner/defendant No.3 is after the period of 3 years
i.e., on 15.03.2018. The challenge to the impugned order
dated 16.04.2018 is made in the year 2022 before this
Court.
10. Under all these facts and circumstances, it is
apparently clear that defendant is trying approbate and
reprobate which cannot been allowed to be decided
pursuant to the amendment, if it was made on time bona-
fidely by the petitioner. However, that is not facts in the
present case. There is a delay in making the amendment
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WP No. 103287 of 2022
and the petitioner is trying to withdraw his admission
which is already made in the previous suit which is
culminated into a judgment and decree and the same is
pending in the appeal proceedings preferred by
respondent No.4.
11. Even before this Court the defendant has
approached challenging the impugned order after four
years, which also indicates that all efforts are made that
protract and prolong the proceedings to defeat the rights
of respondent No.4/plaintiff. These aspects have been
death with by learned trial Judge and after having
considered the same, has rejected the application by the
impugned order. I do not find any illegality or arbitrariness
in the order passed by the trial Court. Accordingly, I pass
the following:
ORDER
i) The writ petition is dismissed.
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WP No. 103287 of 2022
ii) The suit being of the year 2012 and the stage
being further evidence of defendant's, trial Court shall
endeavor to dispose of the suit expeditiously.
SD/-
JUDGE
MRK,AM
