Karnataka High Court
P Jayakumar vs Smt Annaporna on 10 April, 2024
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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WP No. 7341 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO.7341 OF 2024 (GM-CPC)
BETWEEN:
P. JAYAKUMAR
S/O LATE N.R. PUTTEGOWDA,
AGED ABOUT 68 YEARS,
R/AT NO.13,
7TH 'A' MAIN ROAD,
MUTHYALANAGAR,
GOKUL EXTENSION,
BENGALURU-560 054
REPRESENTED BY HER GPA HOLDER,
SMT. VIJAYALAKSHMI
...PETITIONER
(BY SRI.G.DATTA PRASAD, ADVOCATE)
AND:
SMT. ANNAPORNA
W/O LATE M.R. RAMACHANDRAIAH,
D/O PUTTEGOWDA,
Digitally signed by
VANDANA S AGED ABOUT 59 YEARS,
Location: High R/AT NO.102, 7TH 'A' MAIN,
Court of Karnataka 3RD BLOCK, 4TH STAGE,
BASAVESHWARANAGAR,
BENGALURU - 560 097
...RESPONDENT
(BY SRI. H.N.SHASHIDHARA, SENIOR COUNSEL FOR
SRI. H.S.SUHAS, ADVOCATE FOR C/RESPONDENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 22.01.2024 PASSED IN O.S.NO.2788/2011 PASSED BY THE COURT
OF VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
SO FOR AS ALLOWING I.A. NOS. 11/2023, 13/2023 AND 14/2023
(PRODUCED ALONG WITH THIS WRIT PETITION AS ANNEXURE-A) AND
CONSEQUENTLY, DISMISS IA NOS. 11/2023, 13/2023 AND 14/2023.
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WP No. 7341 of 2024
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by the defendant in O.S.No.2788/2011 on the
file of VII Additional City Civil and Sessions Judge,
Bengaluru, is directed against the impugned order dated
22.01.2024 whereby the applications, I.A.10, 11, 13 and 14
filed by respondent/plaintiff were allowed by the trial court
by passing the impugned order which is assailed in the
present petition.
2. A perusal of the material on record would indicate
that the respondent/plaintiff instituted the aforesaid suit
against the petitioner/defendant for partition and separate
possession of her alleged share in the suit schedule immovable
properties. On 24.08.2023, the respondent/plaintiff filed
a memo purporting to give up her claim over the Sy.No.59, 133/6B,
134/1B and 170/1 described in the schedule to the plaint.
Subsequently, respondent/plaintiff has filed the instant
applications seeking to amend the plaint by incorporating the said
properties, which were said to be given up in the aforesaid memo.
The said applications having been opposed by the
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petitioner/defendant, the trial court proceeded to pass the
impugned order allowing the applications by holding as under:
"Heard the learned counsels for the Plaintiff and
Defendants on I.A.No.10, 11, 13, 14 and memo dated
28.02.2023.
The learned counsel for the Plaintiff has filed
I. A.No.10 U/o 6 Rule 17 r/w Sec.151 of CPC to
substitute paragraph 1, add paragraph 9(a) and to
substitute prayer seeking the half share in the place of
1/3rd share as claimed in the Plaint.
The learned counsel for the Plaintiff has filed
I.A.No.11 U/o 6 Rule 17 of CPC to amend the schedule by
including the boundaries of the schedule.
The learned counsel for the Plaintiff has filed
I.A.No.13 U/s 151 of CPC to recall the order passed by
this Court dated 24.08.2013.
The learned counsel for the Plaintiff has filed
I.A.No.14 U/s 151 of CPC seeking permission to withdraw
the memo filed on 24.08.2013.
All the above said I.As are supported by the
affidavit of the Plaintiff. Wherein it is submitted by the
Plaintiff that he has filed this suit for the relief of Partition,
he was entitled for 1/3rd share. After the demise of her
mother on 24.11.2014 he is entitled for half share.
The said suit was Decreed Exparte by this Court
and now by virtue of Orders passed by Hon'ble High Court
of Karnataka in MFA No.4402/2022, the suit is now
Restored. Further in support of I.A.No.11, in the affidavit
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filed by the Plaintiff, it is stated that boundaries of the suit
schedule property was not mentioned properly and as now
the suit is Restored, the Plaintiff is intends to add the
boundaries.
In the affidavit in support of I.A.No.13 and 14, it is
stated by the Plaintiff that she was not aware of the
contents of memo dated 24.08.2013 filed by her previous
Counsel before the Court and without her knowledge,
such memo was filed before the Court to delete the
properties in Survey No.59, Survey No.133/6-B, Survey
No.134/1-B and Survey No.171 which was included in the
schedule of the Plaint, hence she had lodged complaint
against previous Counsel before the Karnataka State Bar
Council in Complaint No. C-45/21. Hence prayed to allow
both I.A.No.13 and 14 and permit her to recall the order of
acceptance of memo dated 24.08.2013 and permit the
Plaintiff to withdraw the memo of the said date.
The learned counsel for the Plaintiff has also filed a
memo on 28.02.2023 stating that in view of setting aside
the Judgment passed Exparte by this Court in MFA
No.4402/2022, hence intends to withdraw the memo dated
24.08.2013 which was filed due to inadvertence and
wrong address.
The learned counsel for Defendant filed objections
to all the above said I.As.
In the Statement of objection to I.A.No.10, it is
contended by the learned counsel for the Defendant that
application is filed with delay of 8 years in FDP
No.10/2016, the Plaintiff had sought for similar relief and
the same was rejected by the Court and the Plaintiff has
not made out a case for granting half share as claimed by
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him. In the FDP as the Plaintiff had claimed only half
share, it amounts to relinquishment of the claim of the
Plaintiff. Hence prayed to dismiss the I.A.No.10.
Further the learned counsel for the Defendant has
contended in Objections to I.A.No.11 that the Plaintiff had
abandoned the claim in respect of the properties shown in
memo dated 24.08.2013 and now by virtue of the
application in I.A.No.11 intends to add those properties
also, which is not permissible under the law and the same
will cause prejudice to the right of the Defendant and
hence prayed to dismiss the I.A.No.11.
The learned counsel for the Defendant in the
statement of objection to I.A.No.13 and I.A.No.14 has
contended that the Plaintiff had abandoned the claim in
respect of properties shown in the memo dated
24.08.2013 and now he cannot be permitted to go back
and made such claim over the same properties. Hence
prayed to dismiss the I.A.No.13 and I.A.No.14.
The learned counsel for the Defendant has also
filed objections to Memo dated 24.08.2023 to dismiss the
same as the earlier memo dated 24.08.2013 is amounting
to relinquishment of right over the said properties.
After going through the contents of the said
applications, Memo dated 28.02.2023 and the respective
objections to the said applications as well as Memo, the
Points that arise for my consideration are:-
Point No.1:- Whether I.A.No.10 may be allowed
and the Defendant may be permitted to amend the plaint
as sought?
Point No.2:- Whether I.A.No.11 may be allowed
and the Defendant may be permitted to amend the plaint
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as sought?
Point No.3:- Whether I.A.No.13 may be allowed
and the Order dated 24.08.2013 may be recalled?
Point No.4:- Whether the I.A.No.14 may be allowed
and the Plaintiff may be allowed to withdraw the memo
dated 24.08.2013?
Point No.5:- Whether the Memo dated 28.02.2023
is entitled to be considered?
Point No.6:- What Order?
Heard Arguments of both the sides. After hearing
my answer to the above Points are:
Point No.1 to 4:- In the Affirmative.
Point No.5:- Does not survive for Consideration.
Point No.6:- As per Final Order.
REASONS
Point No.5:- I have perused the Memo dated
28.02.2023, wherein it is submitted by the Plaintiff that a
Memo was filed on 24.08.2013 for deleting the properties
in Survey No.59, Survey No.113/6-B, Survey No.134/1
and Survey No.170/1 from the schedule and the suit was
Decreed-Exparte on 12.02.2014 and Restored as per the
Hon'ble High Court of Karnataka in MFA No.4402/2022
dated 18.01.2023.
Further it is submitted by the Plaintiff that she
intends to withdraw the Memo dated 24.08.2013.
I.A.No.13 and I.A.No.14 are filed for the relief of
recalling the order of this Court dated 24.08.2013 and to
permit the Plaintiff to withdraw the Memo dated
24.08.2013.
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In view of filing such applications with the
annexed affidavits, decision will be taken on the above
said I.A.No.13 and I.A.No.14. Hence the memo dated
28.02.2023 does not survive for consideration. Hence I
proceed hold the Point No.5 accordingly.
Point No.1:- I have perused the relief sought in
I.A.No.10. In the I.A.No.10 the Plaintiff intends to
amend the plaint with regard to the Advocate who is at
present appearing for her. Further intends to add para
No.9(a) informing the fact of death of her mother and
sought for amendment in prayer to substitute 1/3rd
share as half share.
It may be the prerogative of the Plaintiff to seek
the particular share in the suit schedule property, but
does not entitle him or dis-entitle him if he is getting
either more or less share basing on the facts of the
case, relationship with the Defendant and basing on the
total claim made by the sharers of the said property.
The learned counsel for Defendant had
vehemently argued stating that in the FDP the Plaintiff
had sought for 1/3rd share and that dis-entitle her from
claiming half share.
As the Judgment and Decree passed in this
Court is set-aside by the Hon'ble High Court of
Karnataka in the above said MFA, I am of the opinion
that the Plaintiff will be in the original position, where he
was before passing the Decree. Hence the Plaintiff may
amend his prayer seeking the half share in the place of
1/3rd share. Even if the Plaintiff does not make such
claim, that will not debar the Court from taking the
decision with regard to the quantum of the share for
which the Plaintiff is entitled. Hence in my opinion,
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allowing I.A.No.10 will not cause any prejudice to the
Defendant. On the other hand an opportunity will be
given to the Defendant to file his Written statement
denying such claim. Hence in my opinion I.A.No.10 filed
U/o 6 Rule 17 of CPC may be allowed. Hence I
proceed to hold the Point No.1 in the Affirmative.
Points No.2 to 4:- As the facts are
interconnected in respect of these I.As, they are taken
up together for discussion.
In the I.A.No.11, the learned counsel for the
Plaintiff intends to amend the schedule of the plaint by
engrossing the boundaries of each schedule property.
Further the Plaintiff has included the properties which
were the subject matter of memo dated 24.08.2013.
The learned counsel for the Defendant has
strongly opposed for including the properties which
were got deleted by the Plaintiff by filing the memo
dated 24.08.2013.
The properties which were got deleted vide
memo dated 24.08.2013 are the properties which are
shown as Item No.10, 11, 13 and 14 by the learned
counsel for the Plaintiff in I.A.No.11.
As those properties are included in the I.A.No.11,
in my opinion at the first instance it would be more
feasible to discuss the I.A.No.13 and I.A.No.14 before
considering the I.A.No.11. Hence I would like to discuss
the I.A.No.13 and I.A.No.14 at the first instance.
I.A.No.13 and I.A.No.14 are the applications filed
U/s 151 of CPC, where the Court has exercise its
inherent powers.
In the I.A.No.13 it is stated that while filing the
Memo dated 24.08.2013 before this Curt by the then
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counsel appearing for her, she was misguided by her
Counsel and she was not aware of the contents of the
said Memo. Hence she has lodged complaint against
the then Counsel before the Karnataka State Bar
Council in Complaint No. C-45/21. Copy of such
complaint is also furnished along with the said
application.
The contention of the learned counsel for the
Defendant is that the Defendant has already taken the
contention in his Written statement with regard to the
relinquishment of the right by the Plaintiff vide memo
dated 24.08.2013, now the Plaintiff intends to withdraw
such relinquishment which is not permissible under
the law.
Further the learned counsel for the Defendant
has relied on the decisions reported in
1. (2015) 10 SCC 203, Para 23:- Ram Niranjan
Kajaria v. Sheo Prakash Kajaria and Ors. - Admissions
made in pleadings cannot withdrawn by way of
amendment. (Page No.1 to 10).
2. ILR 1993 KAR 3617, para 6 and 11:
Ramesh Patil V. Lakshmamma - Proceedings which
have taken place in the absence of the Defendant does
not stand annulled once exparte decree is set asid.
(Page No.11 to 19).
3. 2023 SCC Online Bom 487, para 9, 10
and 13(4), 13(9) and 13(10): Datta and Ors. V. Sonabai
Ganpati Methe and Ors. - Replication cannot be filed
as a matter of routine and it can be filed only in
exceptional circumstances; plead inconsistent with
pleas in original pleadings cannot be taken in a
replication. (Page No.20 to 24).
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4. 1997 (43) DRJ 227, para 8: Sumitra Sahai
v. Arya Orphanage - A plea inconsistent with the case
set up in the plaint can never be permitted to be raised
in replication. (Page No.25 to 30).
5. (1996) 7 SCC 486, para 6: Radhika Devi
v. Bajrangi Singh and Ors. - Where a party acquires
right by bar of limitation, the same cannot be taken
away by amendment of pleading. (Page No.31 to 33).
In answer to the same, the learned counsel
for the Plaintiff has relied on the following decisions:-
1. Haridas Alidas Thadani and Others Vs.
Godrej Rustom Kermani - (1984) 1 Supreme Court
Cases 668.
2. Vijayalakshmi Ramanna Vs.Raghunandan
Ramanna and Another - 2017 SCC Online Kar 7026.
3. Sampath Kumar Vs. Ayyakannu and
Another - (2002) 7 Supreme Court Cases 559.
4. Sushil Kumar Jain Vs. Manoj Kumar and
Another - (2009) 14 Supreme Court Cases 38.
5. Usha Devi Vs. Rijwan Ahamd and Others
- (2008) 3 Supreme Court Cases 717.
6. Mohinder Kumar Mehra Vs. Roop Rani
Mehra and Other - (2018) 2 Supreme Court Cases 132.
As rightly pointed out by the learned counsel for
the Defendant that amendment cannot be entertained if
the withdrawal of any admissions made by the Plaintiff.
Herein the present case, the facts are something
different from the facts which are relied by the learned
counsel for the Plaintiff as well as the Defendants.
The definite contention of the learned counsel for
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the Defendant is that the Plaintiff had relinquished his
right by filing a Memo dated 24.08.2013. But as per the
statement on oath by the Plaintiff, she was misguided
by her previous Counsel and she had no intention of
relinquishing her right over the properties which are
shown in the above said Memo dated 24.08.2013.
Further the learned counsel for the Defendant
has vehemently argued stating that the Plaintiff is
estopped from making a claim over the properties
shown in the Memo dated 24.08.2013.
As the Plaintiff intends to add the properties
which were shown in the Memo dated 24.08.2013 by
way of an Amendment, an opportunity will be given to
the Defendant to raise the Defence with regard to the
claim of the Plaintiff over the properties which were said
to be relinquished by the Plaintiff. The estoppel is a
matter of defence and the Defendant is at liberty to
raise such defence of estoppel in his additional Written
statement for which an opportunity will be given to file
the same after the amendment of the pleadings. If the
Defendant raises such defence with regard to estoppel
in respect of the properties shown in the memo dated
24.08.2013, the same will enable this Court to frame an
Issue with regard to the said fact and after the full
fledged trial, this Court will be able to arrive at the just
and proper conclusion with regard to the rights of the
parties to the suit, the quantum of the properties to
which the parties to the suit are entitled and also with
regard to the fact whether the Plaintiff had relinquished
her right over the properties shown in memo dated
24.08.2013.
Hence in my opinion, allowing I.A.No.11, I.
A.No.13 and I.A.No.14 will not cause any prejudice to
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the Defendant, on the other hand it will give raise to
take specific decisions with regard to the such
contention. Hence I am of the opinion that I.A.No.11,
I.A.No.13 and I.A.No.14 may be allowed and I proceed
to hold the Points No.2 to 4 in the Affirmative.
Point No.6:- For the foregoing reasons,
I proceed to pass the following:
ORDER
I.A.No.10 filed U/o 6 Rule 17 of CPC and I.A.No.11
U/o 6 Rule 17 of CPC are hereby allowed with
cost of Rs.1000/- each.
I. A.No.13 and 14 filed U/s 151 of CPC are hereby
allowed.
The Order passed by this Court accepting the
memo dated 24.08.2013 on the same day is hereby
recalled.
The Plaintiff is permitted to withdraw the Memo
dated 24.08.2013.
The Memo dated 28.02.2023 does not survive for
consideration. Hence the same is dismissed.
The learned counsel for the Plaintiff is directed
to amend the plaint and file amended plaint.
To hear on I.A.No.12 by 13.02.2024."
3. As could be seen from the impugned order,
the specific contention of the petitioner/defendant that the
respondent/plaintiff has given up her claim over the aforesaid
properties as indicated in the memo dated 24.08.2013
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filed by her prior to the instant applications being filed
by the petitioner/defendant has been safeguarded by the trial court
by leaving open all the contentions to be urged before the
trial court at the time of final disposal of the suit on merits.
The trial court has also come to the conclusion
that no prejudice would be caused to the petitioner/defendant,
who would be entitled to file additional written statement
to the amended plaint by putting forth all the defences
including the defence as regards the memo dated 24.08.2018
and also defence in relation to the said properties indicated
in the said memo. It is also relevant to state that the petitioner
would be entitled to urge all contentions before the trial court
by putting forth all his defences in respect of all properties
including the properties involved in the memo dated
24.08.2023 and raise contentions urged in the applications
I.A.10, 11, 13 and 14.
4. Under these circumstances, I am of the considered opinion
that since the impugned order cannot be said to have occasioned
failure of justice warranting interference by this court in exercise
of its jurisdiction under Article 227 of the Constitution of India
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as held in the case of Radhey Shyam and Others vs.
Chhabi Nath and Others reported in (2015) 5 SCC 423.
5. In the result, I pass the following:
ORDER
(i) Petition is disposed off without interfering
with the impugned order; and
(ii) Liberty is reserved in favour of the
petitioner/defendant to file additional written
statement to the amended plaint and
to raise all contentions, defences, etc.,
including contentions relating to the amended
plaint as well as memo dated 24.08.2023.
Sd/-
JUDGE
AV
