Karnataka High Court
Bhadrappa S/O. Veerabhadrappa Dangi ... vs Kallavva W/O. Shivalingappa Shegunsai on 8 February, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-D:2936
WP No. 106644 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 106644 OF 2023 (GM-CPC)
BETWEEN:
BHADRAPPA S/O. VEERABHADRAPPA DANGI
SINCE DECEASED BY LRS.
1. VEERESH S/O. BHADRAPPA DANGI
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O. CHIMMALAGI,
TALUK. BASAVANA BAGEWADI,
DIST. VIJAYAPURA-586101.
2. SHANKRAVVA W/O. BHADRAPPA DANGI,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. CHIMMALAGI,
TALUK. BASAVANA BAGEWADI,
DIST. VIJAYAPURA-586101.
3. RACHAPPA S/O. VEERABHDRAPPA DANGI,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. JANAMATTI, BILAGI TALUK,
DIST. BAGALKOT-583101.
YASHAVANT ...PETITIONERS
NARAYANKAR
(BY SRI. M.B. HIREMATH &
Digitally signed by
YASHAVANT
NARAYANKAR
MISS. GAYATRI S.R., ADVOCATES)
Date: 2024.02.13
14:59:36 +0530
AND:
KALLAVVA W/O. SHIVALINGAPPA SHEGUNSAI,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O. JANAMATTI, TALUK. BILAGAI,
DIST. BAGALKOTE-583101.
...RESPONDENT
(BY SRI. VISHWANATH HEGDE &
SMT. TANUJA HEGDE, ADVOCATES)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
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WP No. 106644 of 2023
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 05-10-2023
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
BAGALKOTE ON I.A. NO. 3 IN R.A. NO. 05/2019 WHICH IS
PRODUCED AT ANNEXURE-F AND CONSEQUENTLY DISMISS THE I.A.
NO.3 FILED BY THE RESPONDENT.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the
following reliefs:
a. Issue a writ of certiorari quashing the impugned order dated
05-10-2023 passed by the Principal District and Sessions
Judge, Bagalkote on I.A. No. 3 in R.A. No. 05/2019 which is
produced at Annexure-F and consequently dismiss the I.A.
No.3 filed by the respondent; and
b. issue any other writ, order or as deemed fit in the
interest of justice and equity
2. The petitioner was defendant in O.S.No.62/2012 filed by
the respondent before the Senior Civil Judge and JMFC,
Bilagi. The said suit having been partially decreed, the
petitioner filed regular appeal in R.A.No.5/2019 before the
Principal District and Sessions Judge, Bagalkote.
3. In the said suit, the respondent had filed an application an
I.A.No.3 under Order VI Rule 17 of the Code of Civil
Procedure, 1908 (for short "CPC") to include two
properties viz., VPC No.237/A and VPC No.237/B situated
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at Janamatti village of Bilagi Taluk, Bagalkote District,
which came to be allowed. It is challenging the said order
the petitioner is before this Court.
4. The submission of Sri.Mallikarjunaswami Hiremath, learned
counsel for the petitioner is that, the petitioner had in the
written statement filed in the suit, categorically taken a
stand that the suit was not maintainable on account of
non-inclusion of all the properties and the application filed
at the appellate stage was only to overcome the stand
taken by the defendant to fill up the lacuna pointed out by
the defendant and as such, by allowing the application, the
Trial Court has permitted the lacuna to be filled up, which
if had not been done would have resulted in Appellate
Court dismissing the suit. Alternatively, he submits that
the relief of amendment by way of inclusion of the
properties is barred by limitation. The suit having been
filed in the year 2012, the application was filed in the year
2023 and as such, the application ought to have been
dismissed on this ground also.
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5. Sri.Vishwanth Hegade, learned counsel appearing for
respondent would, however, submit that the Ist Appellate
court has done equity inasmuch as there is no dispute as
regards the properties being joint family properties. The
parties being family members and each of them being
entitled to a share in the property, the inclusion would only
avoid multiplicity of proceedings and as such, no
interference is required.
6. Heard the learned counsel for petitioner as well as the
counsel appearing for respondent and perused the papers.
7. The suit being one for partition is not in dispute. The
parties being family members is also not in dispute.
Though in the written statement the defendant had taken
up contention that all the properties are not made part of
the suit, the Trial Court while passing the judgment did
consider the aspect of property bearing VPC No.273/A and
VPC No.273/B being joint family properties and had in fact,
awarded shares in the said properties vide judgment
passed by the Trial Court. In the appeal, it is only in order
to avoid the technical contentions taken up by the
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defendant an application for amendment came to be filed,
even though the decree had already taken into account the
said properties.
8. There being no particular dispute as regards the property
being joint family properties. The contention of the
defendant raised that all the joint properties were not
made part of the suit, in the written statement. I am of
the considered opinion that such technical objections
ought not to come in the way of rendering proper and
effective justice between the parties, since even if these
properties are made part of the suit, the petitioners would
be entitled to a share in respect of said properties. Even if
those properties were in exclusive possession of the
petitioners, equities could be worked out in final decree
proceedings.
9. In that view of the matter, keeping all the contentions of
respective parties in respect of said properties open, the
above petition stands dismissed.
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10. In view of disposal of the petition, pending interlocutory
applications, if any, do not survive for consideration and
are disposed of accordingly.
Sd/-
JUDGE
YAN
