Karnataka High Court
Sri Anjine Gowda vs Sri G N Annegowda on 2 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 28971 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.28971 OF 2023 (GM-CPC)
BETWEEN:
SRI ANJINE GOWDA
AGED ABOUT 33 YEARS,
S/O LATE HANUMANTHARAYAPPA,
R/AT DODDAGOLLAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT 562 110.
...PETITIONER
(BY SRI. LAKSHMINARYANA LEARNED SENIOR COUNSEL FOR
SRI. GURURAJA S SANGUR.,ADVOCATE)
AND:
1. SRI G N ANNEGOWDA
S/O LATE SUBBANNA @ SUBBEGOWDA,
AGED ABOUT 65 YEARS,
AGRICULTURIST,
Digitally signed by 2. SRI S KRISHNAPPA
VANDANA S
Location: High S/O LATE SUBBANNA @ SUBBEGOWDA,
Court of Karnataka
AGED ABOUT 59 YEARS,
AGRICULTURIST,
3. SRI GOVINDAPPA
S/O LATE SUBBANNA @ SUBBEGOWDA,
AGED ABOUT 55 YEARS,
AGRICULTURIST.
R-1 TO R-3 ARE
R/AT DODDAGOLLAHALLI VILLAGE
KUNDANA HOBLI
DEVANAHALLI TALUK
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BENGALURU RURAL DISTRICT - 562 110.
4. SMT SHANTHAMMA
AGED ABOUT 73 YEARS,
W/O BACHEGOWD,
D/O LATE SUBBANNA @ SUBBEGOWDA,
AGRICULTURIST,
R/AT MARAHALLI VILLAGE,
THUBAGERE HOBLI,
DODDABALLAPURA TALUK,
BENGALURU RURAL DISTRICT 561 203.
SMT JANAKAMMA
SINCE DECEASED
ON 02-04-2022 REP BY HER LRS,
5. SRI NANGEGOWDA,
S/O LATE ANJINAPPA,
AGED ABOUT 56 YEARS,
6. SRI NAGARAJU
S/O LATE ANJINAPPA,
AGED ABOUT 54 YEARS,
7. SRI RAMESH
S/O LATE ANJINAPPA,
AGED ABOUT 52 YEARS,
8. SMT ASHWINI
W/O SRIKANTH,
D/O LATE ANJINAPPA,
AGED ABOUT 50 YEARS,
9. SRI SRINIVAS
S/O LATE ANJINAPPA,
AGED ABOUT 48 YEARS,
R-5 TO R-9 ARE
R/AT MELAKOTE VILLAGE,
THUBAGERE HOBLI,
DODDABALLAPURA TALUK,
BENGALURU RURAL DISTRICT 561 203.
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WP No. 28971 of 2023
10. SRI ANJINAPPA
AGED ABOUT 70 YEARS,
H/O LATE DODDATHAYAMMA,
R/AT BEERASANDRA VILLLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT 562 110.
SRI GOPALAPPA
SINCE DEAD BY HIS LRS
11. SMT SUBBAMMA
W/O LATE GOPALAPPA
AGED ABOUT 90 YEARS
12. SMT ANNEMMA
W/O K P ANJINAPPA
D/O LATE GOPALAPPA
AGED ABOUT 68 YEARS
13. SMT KAMALAMMA
W/O K P ANJINAPPA
D/O LATE GOPALAPPA
R-11 TO R-13 ARE
ALL RESIDING AT
DODDAGOLLAHALLI VILLAGE
KUNDANA HOBLI
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT - 562 110.
14. SMT BHAGYAMMA
W/O ADESHA
D/O GOPALAPPA
AGED ABOUT 60 YEARS
R.AT KELAGANABEEDHI
KODIGEHALLI VILLAGE
YELAHANKA HOBLI,
BENGALURU NORTH TALUK
BENGALURU - 560 092.
15. SMT SUJATHAMMA
W/O KRISHNEGOWDA
D/O LATE GOPALAPPA
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WP No. 28971 of 2023
AGED ABOUT 45 YEARS
R/AT RABBANAHALLI VILLAGE
KUNDANA HOBLI
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT 562 110.
16. SMT ANITHAKUMARI
W/O SURESH
D/O LATE GOPALAPPA
AGED ABOUT 50 YEARS
17. SRI MANJUNATHA
AGED ABOUT 40 YEARS
S/O GOPALAPPA
18. SMT PAPAMMA
AGED ABOUT 75 YEARS
W/O LATE HANUMANTHARAYAPPA
19. SRI SRINIVASA GOWDA
AGED ABOUT 38 YEARS
S/O LATE HANUMANTHARAYAPPA
20. SRI MANJUNATHA GOWDA
AGED ABOUT 36 YEARS
S/O LATE HANUMANTHARAYAPPA
21. SMT MANGALAL GOWRI
AGED ABOUT 25 YEARS
D/O LATE HANUMANTHARAYAPPA
22. SRI RAJAGOPAL
AGED ABOUT 35 YEARS
S/O VENKATARAMANAPPA
R-17 TO R-22
ARE R/AT DODDAGOLLAHALLI VILLAGE
KUNDANA HOBLI
DEVANAHALLI TALUK
BENGALURU RURAL DSITRICT - 562 110.
23. SMT PAPAMMA
AGED ABOUT 65 YEARS
W/O KRISHNAPPA
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R/AT AGALAGURKI VILLAGE
CHIKKABALLAPURA TALUK
KOLAR DISTRICT - 563 101.
24. SMT. CHANDRAMMA
AGED ABOUT 63 YEARS,
W/O MUNIRAMAIAH,
AGED R/AT MARENAHALLI VILLAGE,
THUBAGERE HOBLI,
DODDABALLAPURA TALUK
BENGALURU RURAL DISTRICT 561 203.
25. SMT. H NAGARATHNAMMA
AGED ABOUT 55 YEARS,
W/O MUNIVENKATAPPA,
R/AT NO. 60, O M B R LAYOUT,
4tH B MAIN ROAD, BANASWADI,
BENGALURU 560 043.
26. SMT. SHIVARATHNAMMA
AGED ABOUT 32 YEARS,
W/O SHIVAKUMAR
R/AT HEGGADADEVANAPURA VILLAGE,
MAKLI POST, ALUR POST,
NELAMANGALA TLAUK
BENGLAURU RURAL DISTRICT 562 123.
SMT. MUNITHAYAMMA
SINCE DECEASED REPRESENTED BY
HER LEGAL HEIRS
27. SMT. AMMAYAMMA
W/O LATE VEERAPPA
AGED ABOUT 60 YEARS,
28. SMT. MANJULA
W/O CHANNARAYAPPA
AGED ABOUT 57 YEARS,
29. SRI. VIJAYA PRAKASH
S/O LATE VEERAPPA
AGED ABOUT 55 YEARS,
30. SRI. UDAYA PRAKASH
S/O LATE VEERAPPA
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AGED ABOUT 51 YEARS,
31. SRI. HEMANTH
S/O LATE VEERAPPA,
AGED ABOUT 49 YEARS,
32. SMT. VEENA
W/O SUBRAMANYA
AGED ABOUT 45 YEARS,
33. SMT. USHA
W/O AMBARISH,
AGED ABOUT 43 YEARS,
R-27 TO R-33 ARE ALL
R/AT KODIGEHALLI VILLAGE,
SAHAKARANGARA POST,
YELAHANKA HOBLI,
BENGALURU NORTH TALUK
BENGALURU 560 092
34. SRI. K.M. VENKATESH
AGED ABOUT47 YEARS,
S/O GANIGAL MUNISHAMAPPA,
R/AT KODIGEHALLI VILLAGE,
YELAHANKA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU DISTRICT - 560 092.
35. SMT. MUNITHAYAMMA
AGED ABOUT 83 YEARS,
W/O BYRAPPA,
R/AT SHANAPANAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 562 110.
36. SRI. KRISHNAPPA
AGED ABOUT 63 YEARS,
S/O DODDANANJAPPA,
37. SRI. NANJEGOWDA
AGED ABOUT 63 YEARS,
S/O DYAVANNA,
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WP No. 28971 of 2023
R-36 AND R-37 ARE R/AT:
DODDAGOLLAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 562 110.
SRI. HANUMANTHAGOWDA,
S/O MUNISHAMAPPA,
SINCE DEAD BY HIS LRS,
38. CHANDRAPPA,
S/O. HANUMANTHEGOWDA,
AGED ABOUT 38 YEARS,
AGRICULTURE,
R/AT ARAVANAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 562 110.
39. SANDHYA
W/O MUNIRAJU,
D/O LATE HANUMANTHEGOWDA,
AGED ABOUT 33 YEARS,
R/AT LINGANAHALLI VILLAGE,
KASABA HOBLI, DODDABALLAPURA TALUK,
BENGALURU RURAL DISTRICT - 561 203.
40. MANJULA
W/O RAJANNA,
D/O LATE. HANUMANTHEGOWDA,
AGED ABOUT 35 YEARS,
R/AT CHIKKAGOLLAHALLI VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 562 110.
41. SRI. THIMMAIAH
S/O DODDANARAYANAPPA,
R/AT THARABANAHALLI VILLAGE,
JALA HOBLI, BENGALURU NORTH,
BENGALURU DISTRICT - 560 092.
42. SMT. ANNEMMA,
D/O LATE SUBBANNA @ SUBBEGOWDA,
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WP No. 28971 of 2023
W/O LATE VENKATESHAPPA,
AGED ABOUT 70 YEARS,
R/AT BOMMANAHALLI VILLAGE,
NANDHI HOBLI, CHIKKABALLAPURA TALUK,
CHIKKABALLAPURA DISTRICT - 562 101.
43. SMT. MUNIRATHNAMMA,
D/O ANJINAPPA @ LATE. DODDATHAYAPPA,
W/O LATE. B.K. NANJEMARI,
AGED ABOUT 60 YEARS,
R/AT NO.333/5, NEAR P.M.S. SCHOOL,
BETTAHALASURU VILLAGE AND POST,
JALA HOBLI, YELAHANKA TALUK,
BENGALURU RURAL DISTRICT - 560 092.
44. SMT. YASHODAMMA,
D/O ANJINAPPA @ LATE. DODDATHAYAMMA,
W/O GOVINADAPPA,
AGED ABOUT 57 YEARS,
45. SRI. GOPALA B.A.
S/O. ANJINAPPA @ LATE. DODDATHAYAMMA,
AGED ABOUT 50 YEARS,
46. SRI. BYREGOWDA,
S/O ANJINAPPA @ LATE. DODDATHAYAMMA,
AGED ABOUT 45 YEARS,
RESPONDENT NO.44 TO 46 ARE R/AT:
BEERASANDRA VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 562 110.
47. THE SPECIAL LAND ACQUISITION OFFICER,
MAHARSHI ARAVINDA BHAVANA,
NRUPATHUNGA ROAD,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. S.K. VENKATACHALAPATHY.,ADVOCATE FOR C/R-1 TO R-3
SMT. SAVITHRAMMA, AGA FOR R-47)
THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
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WP No. 28971 of 2023
DATED 24/11/2023 PASSED BY THE HONBLE 3RD ADDL. SENIOR
CIVIL JUDGE AND JMFC, DEVANHALLI IN O.S.NO.2076/2006 AS PER
ANNEXURE-A ON APPLICATION FILED UNDER ORDER 6 RULE 17
READ WITH 151 C.P.C. DATED 30/10/2023 AND ALLOW THE ABOVE
WP THEREBY REJECT THE APPLICATION FILED BY THE PLAINTIFF
FILED UNDER ORDER 6 RULE 17 READ WITH SECTION 151 OF
CPC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned order dated
24.11.2023 passed in O.S.No.2076/2006 by III Addl. Senior Civil
Judge and JMFC, Devanahalli, whereby the application I.A.No.65
filed by the respondents 1 to 3 - plaintiffs seeking amendment of
the plaint was allowed by the Trial Court.
2. Heard learned counsel for the petitioner and learned
counsel for the respondents and perused the material on record.
3. A perusal of the material on record will indicate that the
respondents 1 to 3 - plaintiffs instituted the aforesaid suit for
partition and separate possession of their alleged share in the suit
schedule property and for other reliefs. In the said suit, the
petitioner is arrayed as defendant No.9 and is contesting the suit.
After commencement of a trial, the petitioner filed the instant
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application seeking to make certain corrections in body of the plaint
as sought for in the application. The said application having been
opposed by the petitioner, the Trial Court proceeded to pass the
impugned order allowing the application as holding as under:
"This application is filed by the plaintiffs U/o.6 Rule.17 of
C.P.C seeking permission to amend the plaint.
2. It is stated in the accompanying affidavit that
plaintiffs have filed suit for partition. The father of plaintiff
No.2 namely Subbanna @ Subbegowda was the Foster son
of Anneppa. The said Anneppa was the propositus of the
family of plaintiffs and defendants. During his lifetime, he had
got Foster son who is the father of plaintiff No.2, at the age of
10 months after his birth from natural father and mother, said
Subbegowda became the Foster son. Thereafter he had
been living as joint family member of late Anneppa and late
Subbegowda married Subbamma, in the house of Anneppa.
The plaintiffs are the joint family members along with
defendants. As per the registered relinquishment deed dated
10.01.1944, it is clearly stated that Subbegowda is the Foster
son and he and plaintiffs are the joint family members of
family of Anneppa. They have been in joint possession and
enjoyment of schedule properties. The said document shows
the same. This is the factual situation. But at the time of filing
suit, by way of mistake, it is mentioned as adopted son
instead of Foster son. The plaintiffs are the villagers and are
not having worldly knowledge. They are poor people and
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illiterate persons doing coolie work. At the time of preparing
the plaint, the mistake was happened, it has to be rectified.
Recently, he was told by the advocate while discussing the
case. Subsequently, Hanumantharayappa and Subbegowda
jointly executed Sale Deed in favour of Nanjappa on
18.02.1976. Therefore, the plaintiffs have instructed to the
advocate to file the application for rectification of mistake. It
is necessary to amend the plaint for effective adjudication of
the suit. Proposed amendment does not alter the structure of
the suit and cause of action in any manner. Therefore, it is
prayed to allow the application.
3. The defendants No.5 to 8 and 15 have filed
objections to the application stating that application is not
maintainable, the suit is filed in collusion with other family
members,. The application is barred by limitation. It is filed at
belated stage. Defendants already filed written statement on
17.02.2007 and they have denied the plaint averments
stating that plaintiffs have filed false case. It is also
specifically contended that Anneppa and his wife
Akkayamma had never adopted a son at the age of 10
months from their natural guardian by complying all the
custom and usages as per the Hindu adoption Act. It is also
contended that on the basis of concocted documents, suit is
filed. The plaintiffs have filed several applications earlier. But
they have not sought the present amendment although
having knowledge of the same. Now they have come up with
the present application to harass the defendants.
Amendment introduces new facts. It is contrary to the
pleading of their case. If it is permitted, it would change the
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nature of suit and cause of action. It will be disadvantage to
the defendants. Plaintiffs have specifically pleaded that their
father was adopted son of Anneppa and said adoption was
taken place by observing the religious usages and customs.
It is totally denied. There is also issue with regard to the
same. Therefore application cannot be considered. It will
lead to new set of facts and it is not necessary to determine
the real questions. Hence it is prayed to dismiss the
application.
4. Heard both and perused the materials on record.
5. The plaintiffs have filed suit for partition seeking
share in the suit properties. They have also sought for
declaration that Sale Deeds of Hanumantharayappa and
defendants are not binding on them. It is a fact that plaintiffs
have filed many applications in the present suit from 2006.
Only on the basis of said fact, the present application cannot
be rejected. In the present application, it is stated about the
difficulty of the plaintiffs. It is also stated that in the
relinquishment deed 10.01.1944, it is clearly mentioned
about Foster son. But the defendants have seriously
objected the present application stating that it is filed at
belated stage and it introduces new cause of action and new
set of facts. In support of arguments, advocate for plaintiffs
has produced documents pertaining to the year 1944. In the
said document it is mentioned that, ನನ ತಂ ೆ ಅ ೆಪ ನು ಾಲಕ
ಪತ ಾ ೕಷ ೆ ಾ ಮ ೆಯ ಇಟು !ೊಂ ರುವ ಸುಬ'ಯ(. It is
enough to say that plaintiffs are contenting that Subbayya is
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the Foster son. The said document is more than 30 years
old. Therefore the averments in the said relinquishment deed
can be considered. It supports the application averments.
The document for the year 1976 is also produced by the
plaintiffs. In the said document also, it is mentioned that,
ಅ ೆಪ ನ )ಾಕು ಮಗ ಸು+ೆ'ೕ,ೌಡ ಆದ ಾವ ಮೂವರು ಏಕಸ23ಾ
ಬ3ೆ4!ೊಟ ಶುದ6 ಕ ಯಪತ . In this document also, the children of
Anneppa sold property. Since the recitals with respect to
Foster son is mentioned in the oldest documents pertaining
to year 1976 and 1944, the objection of the defendants does
not hold good. Delay can be met by imposing cost. But only
on the basis of the ground of delay, application cannot be
rejected. But the defendants are at liberty to file additional
written statement and to take contentions in this regard.
Their right cannot be curtailed by way of allowing this
application. If the application is allowed, it does not mean
that plaintiffs have proved that their father Subbayya @
Subbegowda is the Foster son of Anneppa. It is also burden
to prove the version taken in the application. In the mutation
register produced by the plaintiffs advocate also, it is
mentioned as Subbegowda (ಅ ೆಪ ನ )ಾಕು ಮಗ). It is for the
year 1975-76. All the documents produced by the advocate
for plaintiffs support the application averments. Therefore
objection of the defendants is not sustainable.
6. The advocate for defendants No.6 to 10 and 15 has
produced the Judgment of Hon'ble Supreme Court in Civil
Appeal No.7251/2008 in between Vidyabai & others Vs.
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Padmalatha & another, in Civil Appeal No.6921/2009 in
between M/s Ravajeetu Builders Vs. M/s Narayanaswamy &
Sons, Civil Appeal No.3703/2022 in between Asian Hotels
(North) Ltd. Vs. Alok Kumar Lodha & others and Civil Appeal
No.154/2009 in between Alkapuri Co-operating Housing
Society Vs. Jayantibai Naginbhai and judgment of Hon'ble
High Court of Karnataka Karnataka in RSA.No.1671/2005. It
is held that if the amendment application is filed at belated
stage, it cannot be allowed, it is also held that if amendment
is to be introduced certain new facts, it cannot be allowed.
But in this case, there are previous documents which are
more than 30 years old to support the application averments.
Therefore it cannot be said that they are new facts.
7. Advocate of plaintiffs has produced the rulings
reported in 1) AIR 2002 SCC 3369 in between Sampath
Kumar Vs. Ayyakannu and another, 2) AIR 1964 SC 818 3)
AIR 2017 SC 5822 4) ILR 2015 KAR 3997. He has also
produced the judgment in Writ Petition No. 59143 of
2016(GM-CPC) in between Kum. Meenakshi Vs. Smt.
Nagarthanamma, 2) Civil Appeal No.5909/2022. I have
perused them with due respect. They support the application
averments. Because it is held that amendment can be
allowed as it would curtail multiplicity of proceedings. It is
also held that basic principles ought to be taken into
consideration while allowing are rejecting the amendment
application. It is held in 2022 (SC)Live Law 729 in between
LIC of India Vs. Sanjeev Builders Pvt, and another that all
amendments are to be allowed which are necessary for
determining the real question in controversy provided it does
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not cause injustice or prejudice to the other side. In this case
also, if amendment is allowed and liberty is given to the
defendants to file additional written statement, it does not
cause injustice to them. Therefore I am of the opinion that
the Judgments and rulings produced by the advocate for
defendants No.6 to 10 and 15 are not helpful to them in this
case by considering the entire facts and materials of the
case. Hence by considering the entire materials on the
record, I am of the opinion that the application filed by the
plaintiffs is liable to be allowed. The plaintiffs have made out
the grounds to allow the application. It is also sought for
insertion of name of Akkiyamma in place of Akkayamma. It is
to be allowed for the reasons stated therein. Therefore I
proceed to pass the following:
ORDER
I.A.No.65 filed by the plaintiffs U/o 6 Rule 17 read with
Section 151 of Civil Procedure of Code is hereby allowed
with cost of Rs.1000/-.
For amendment and amended plaint.
Call on 25.11.2023."
4. As can be seen from the impugned order, the Trial Court
has come to the correct conclusion that the proposed amendment
will not change or alter nature and character of the suit or its cause
of action. The Trial Court has also noticed the fact that if the
amendment is allowed, no right vested in the petitioner would be
taken away nor would the amendment would have the effect of the
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respondents 1 to 3 - plaintiffs withdrawing or rescinding from any
admission already made in the plaint. Under these circumstances,
I am of the considered opinion that the impugned order passed by
the Trial Court deserves to be modified by permitting the
amendment and directing that the amendment shall not relate back
to the date of the suit but shall be reckoned/considered from the
date of filing the application as held in the case of Sampath Kumar
v Ayyakannu and Ors. - AIR 2002 SC 3369 and L.C.
Hanumanthappa v H.B. Shivakumar - (2016) 1 SCC 332.
5. In the result, I pass the following:
ORDER
(i) Petition is hereby disposed of.
(ii) Impugned order dated 24.11.2023 in O.S.No.2076/2006
passed by the III Addl. Senior Civil Judge and JMFC, Devanahalli,
is hereby modified.
(iii) I.A.No.65 filed in O.S.No.2076/2006 is allowed subject
to the condition that the proposed amendment shall not relate back
to the date of the suit but shall be reckoned/considered from the
date of the application which was filed on 30.10.2023.
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(iv) Liberty is reserved in favour of the petitioner and other
defendants to file additional written statement to the amended
plaint and take up all contentions including limitation.
(v) All rival contentions including limitation, are kept open.
SD/-
JUDGE
DHA
