Smt Usha vs Sri H K Santosh Kumar
2023 Latest Caselaw 7031 Kant

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                                                      NC: 2023:KHC:36227
                                                      WP No.12919 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                           DATED THIS THE 6TH DAY OF OCTOBER, 2023
                                            BEFORE
                         THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                          WRIT PETITION NO.12919 OF 2021 (GM-CPC)
                   BETWEEN:

                   1.    SMT. USHA
                         D/O LATE K.H. SHIVANAGAPPA
                         AGED ABOUT 51 YEARS
                         NO.1331, GUNDU RAO NAGARA
Digitally signed         MYSURU-570001.
by RUPA V
Location:          2.    SMT. LATHA
HIGH COURT               D/O LATE K.H. SHIVANAGAPPA
OF                       AGED ABOUT 47 YEARS.
KARNATAKA
                   3.    SMT. SHAKUNTHALA
                         D/O LATE K.H. SHIVANAGAPPA
                         AGED ABOUT 52 YEARS.

                         PETITIONER NO.1 TO 3 ARE
                         R/AT. KALIKAMBA TEMPLE STREET
                         SARAGURU TOWN
                         HEGGADEVANAKOTE TALUK-571121.

                                                               ...PETITIONERS
                   (BY SRI. KUMBAR VASANT FAKEERAPPA, ADV.,)

                   AND:

                   1.    SRI. H.K. SANTOSH KUMAR
                         S/O KENDAGANNAPPA
                         AGED ABOUT 35 YEARS
                         R/AT. BASAVESHWARA TEMPLE ROAD
                         SARAGUR TOWN
                         HEGGADAVENAKOTE TALUK-571125.
                                                               ...RESPONDENT
                   (BY SRI. SHIVANANDA R, ADV., FOR
                       SRI. P. NATARAJU, ADV.,)
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                                       NC: 2023:KHC:36227
                                       WP No.12919 of 2021




     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 02.06.2021 PASSED BY THE HONBLE CIVIL
JUDGE AND JMFC HEGGADADEVANAKOTE ON I.A.NO.IX FILED
UNDER ORDER 6 RULE 17 R/W SECTION 151 OF CODE OF
CIVIL PROCEDURE IN O.S.NO.235/2010 VIDE AT ANNEXURE-H.
GRANT AN INTERIM ORDER OF STAY, STAYING ALL FURTHER
PROCEEDINGS OF O.S.NO.235/2010 PENDING ON THE FILE OF
CIVIL JUDGE AND JMFC, HEGGADEVANAKOTE PENDING
DISPOSAL OF THE ABOVE WRIT PETITION.

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

                           ORDER

This writ petition is filed by the petitioners-plaintiffs

under Article 227 of the Constitution of India praying to

quash the order dated 02.06.2021 passed on I.A.9 in

O.S.No.235/2010 on the file of Civil Judge and JMFC,

Heggadadevanakote (hereinafter referred to as, 'the trial

Court').

2. Brief facts giving rise to filing of this petition are

that the petitioners-plaintiffs have filed the suit for

permanent injunction and separate possession against

their brothers in respect of the suit schedule properties by

contending that the suit schedule properties are the joint

NC: 2023:KHC:36227 WP No.12919 of 2021

family properties. The said suit is opposed by the

respondents-defendants by filing the written statement.

During the pendency of the said suit, the defendant No.1

has died issueless and the defendant No.2 has also died.

The petitioners-plaintiffs have filed an application for

transposition of petitioner No.3-plaintiff No.3 as defendant

in the pending suit, which came to be rejected. During the

interregnum, the respondent herein claiming to be the

legal heir of defendant No.2 has filed a memo to come on

record, which was accepted and he was allowed to come

on record. During the pendency of the suit, the

petitioners-plaintiffs have filed an application under Order

VI Rule 17 of CPC seeking for amendment of the plaint by

adding certain paragraph in the plaint and by adding two

items of the properties in the schedule to the plaint. The

said application was opposed by the respondent. The trial

Court vide impugned order dated 02.06.2021 has rejected

the said application. Under the said facts and

NC: 2023:KHC:36227 WP No.12919 of 2021

circumstances of the case, the present petition is filed

assailing the order dated 02.06.2021.

3. Sri.Kumbar Vasant Fakeerappa, learned counsel

for the petitioners submits that the trial Court has

committed grave error in rejecting the application seeking

amendment of the plaint as the petitioners-plaintiffs have

specifically contended that the respondent herein is

stranger to the family of the petitioners-plaintiffs and his

claim that he is an adopted son of defendant No.2 is

without any basis and such contention has been raised in

the rejoinder filed by the petitioners-plaintiffs to the

written statement filed by the respondent herein i.e.,

defendant No.2(a). It is submitted that the petitioners-

plaintiffs have now came to know that two more properties

i.e., land bearing Sy.No.506/2 measuring 30 guntas

situated at Poorigali Village, B.G.Pura Hobli, Malavalli

Taluk, Mandya District and house property bearing Khatha

No.861/4, 309/4 measuring 15 feet X 40 feet and vacant

site situated at 7th Ward, Saragur Hobli, Saragur Taluk

NC: 2023:KHC:36227 WP No.12919 of 2021

and Town on Kurubahundi Road are the joint family

properties, hence they have moved an application for

amendment of plaint by adding those properties into the

plaint. It is submitted that without considering the

material evidence on record, the trial Court has

erroneously came to the conclusion that the application is

filed at a belated stage and rejected the said application.

Hence, he seeks to allow the writ petition.

4. Per contra, Sri.Shivananda R., learned counsel

for the respondent supports the impugned order of the

trial Court and submits that the respondent is an adopted

son of defendant No.2, considering this aspect the trial

Court has allowed the respondent to participate in the suit.

It is submitted that the respondent has filed additional

written statement in the suit by contending that the

respondent is the adopted son of defendant No.2 and he

has right in the suit schedule properties. It is submitted

that the respondent has filed objections to the application

filed seeking amendment of the plaint by contending that

NC: 2023:KHC:36227 WP No.12919 of 2021

the present application is filed with an ulterior motive to

incorporate the two properties in the suit schedule and

those properties are self-acquired properties of the

respondent and hence, he seeks to dismiss the writ

petition.

5. Having heard the learned counsel for the

petitioners, learned counsel for the respondent and

perusing the material available on record, it is not in

dispute that the petitioners-plaintiffs have filed the suit for

partition and separate possession against their brothers

and during the pendency of the said suit the defendant

Nos.1 and 2 died and the present respondent claiming to

be an adopted son of defendant No.2 was brought on

record and defending the suit.

6. The contention of the petitioners-plaintiffs that

the two properties referred supra are the joint family

properties and they were not aware about those properties

at the time of filing of suit hence moved an application for

NC: 2023:KHC:36227 WP No.12919 of 2021

amendment of the plaint to include those two properties in

the suit for the purpose of partition. On perusal of the

material available on record, more particularly the

judgment and decree passed in O.S.No.190/2003, wherein

the civil Court has recorded the finding that the property

i.e., land bearing Sy.No.506/2 is neither ancestral nor the

joint family property. Hence, the contention of the

petitioners that they were not aware about the properties

has no merit consideration and is accordingly rejected.

Insofar as the property bearing Khatha Nos.861/4 and

309/4, the house properties, the material on record clearly

indicates that the said properties were purchased by

defendant No.2 in the year 2003 i.e., after filing of the

suit. Hence, the contention of the petitioners that the said

properties are joint family properties or ancestral

properties has no merit consideration. The trial Court at

paragraph Nos.13 to 15 has recorded categorical finding

that the petitioners-plaintiffs are not due diligent in filing

the application and the present application is filed

NC: 2023:KHC:36227 WP No.12919 of 2021

belatedly with an intention to drag-on the proceedings.

Further, it has reasoned that the petitioners-plaintiffs have

assigned the reason that due to Covid-19 Pandemic they

cannot take steps for amendment is not a ground to allow

the application. This Court is of the considered opinion that

the finding recorded by the trial Court is based on the

material available on record and the said finding is neither

perverse nor erroneous calling for interference in the

present petition.

7. For the reasons recorded supra, this Court does

not find any merit in the contentions urged by the

petitioners, hence, the present petition is devoid of merits

and is accordingly, rejected.

Sd/-

JUDGE

BSR