Karnataka High Court
Smt N Saraswathamma vs Sri Chikkanarasappa on 13 February, 2024
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WP No. 54079 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 54079 OF 2017 (GM-CPC)
BETWEEN:
1. SMT. N. SARASWATHAMMA
SINCE DEAD BY HER L.RS
2. SRI. THIPPANNA
S/O CHIKKA VENKATASWAMY
AGED ABOUT 60 YEARS
R/AT HUDUGURU VILLAGE
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-561 208.
3. SMT. SHAMALA
D/O THIPPANNA
W/O SRINIVASA NAIDU
R/AT NO.397
NEAR ESHWARA TEMPLE
Digitally KADUGODI
signed by
PAVITHRA N BANGALORE-560 067.
Location: high
court of 4. SMT. VEENA
karnataka
D/O THIPPANNA
W/O RAGHAVENDRA
AGED ABOUT 34 YEARS
NEAR KRISHNA TALKIES
CHICKBALLAPUR TALUK
& DISTRICT-562 101.
5. SMT. KAMAKSHI
D/O THIPPANNA
W/O RAMAKRISHNA
AGED ABOUT 32 YEARS
R/AT NAGARAGERE VILLAGE
AND HOBLI
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WP No. 54079 of 2017
GOWRIBIDANUR TALUK
CHIKKABALLAPUR DISTRICT-562 101.
...PETITIONERS
(BY SRI. RAGHAVENDRA K., ADVOCATE FOR P2 TO P5;
V/O DATED 10.02.2023, P2-P5 ARE LRS OF P1)
AND:
1. SRI CHIKKANARASAPPA
SINCE DEAD BY LRS
1(A) SMT. LAKSHMINARASAMMA
W/O LATE CHIKKA NARASAPPA
1(B) SRI MANJUNATH
S/O LATE CHIKKA NARASAPPA
1(C) SMT. BHAGYAMMA
D/O LATE CHIKKA NARASAPPA
1(D) SRI SHIVA KUMAR
S/O LATE CHIKKA NARASAPPA
LRS NO.1(A) TO 1(D) ARE
R/AT HONNENAHALLI VILLAGE
KASABA HOBLI
CHICKBALLAPURA TALUK
& DISTRICT-562 101.
2. SMT. NAGAMMA
W/O LATE VENKATANARASIMHAIAH
AGED ABOUT 70 YEARS
R/AT HONNENAHALLI VILLAGE
KASABA HOBLI
CHICKBALLAPURA TALUK
& DISTRICT-562 101.
3. SRI. ADEPPA
S/O LATE CHANNAPPA
AGED ABOUT 50 YEARS
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WP No. 54079 of 2017
R/AT HONNENAHALLI VILLAGE
KASABA HOBLI
CHICKBALLAPURA TALUK
& DISTRICT-562 101.
...RESPONDENTS
(BY SMT. ARATHI B., ADVOCATE FOR R1 (A TO D);
SRI M. JAIPRAKASH REDDY, ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
30.10.2017 I.A.NO.2 PASSED BY THE HON'BLE PRINCIPAL DISTRICT
AND SESSIONS JUDGE AT CHIKKABALLAPUR IN R.A.NO.97/2016
VIDE ANNEXURE-J AND ETC.,
THIS WRIT PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The appellants in RA No.97 of 2016 on the file of the
learned Principal District and Sessions Judge at Chikkaballapur,
are impugning the order dated 30.10.2017, dismissing IA No.2
filed under Order VI Rule 17 of CPC.
2. Heard Sri K Raghavendra, learned counsel for the
petitioners, Smt B Arati, learned counsel for respondent No.1(a
to d) and Sri M Jaiprakash, learned counsel for respondent
Nos.2 and 3. Perused the materials on record.
3. Learned counsel for the petitioners submitted that
the petitioners as plaintiffs filed OS No.546 of 2007 seeking
declaration of their title and for permanent injunction. The
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defendants have contested the suit. The Trial Court dismissed
the suit both on merits as well as on the ground that the
boundaries and measurement are not mentioned in the
schedule as required under Order VII Rule 3 of CPC.
Challenging the said judgment and decree, the plaintiffs have
preferred RA No.97 of 2016 which is pending consideration.
During the pendency of suit, IA No.2 under Order VI Rule 17 of
CPC was filed seeking to amend the schedule as stated in the
Annexure. The said application came to be dismissed vide
order dated 30.10.2017 and the same is impugned herein.
4. Learned counsel submits that the proposed
amendment is only to the effect that the boundaries of the
schedule properties and the extent in respect of few items are
proposed to be changed in accordance with the description
found in Ex.P19 - the registered partition deed dated
15.07.1932. Both the plaintiffs and defendants are claiming
their share under the said registered partition deed which is an
admitted item. Under such circumstances, the defendants
could not have opposed the said application. The findings of
the Trial Court that the amendment will change the nature of
suit or cause of action is without any basis. The plaintiffs who
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are claiming their right under the undisputed partition deed is
entitled to seek amendment.
5. Learned counsel submits that there was delay in
seeking amendment, but the same cannot be a ground to reject
the claim of the plaintiffs. To a pointed query, he submits that
the petitioners may have to be required to lead further
evidence in support of their contention and the Appellate Court
may either record further evidence or remand the matter to the
Trial Court. Accordingly, he prays for allowing the petition.
6. Per contra, learned counsel for the respondents
opposing the petition submitted that even earlier, the
defendants have taken up a specific contention that the
description of the property in the schedule was not in
accordance with Order VII Rule 3 of CPC. Even though, the
same was highlighted while the suit was pending before the
Trial Court, no necessary steps were taken to correct the
description. After trial, the suit came to be dismissed.
7. Learned counsel also submits that all the necessary
parties are not impleaded by the plaintiffs to seek declaration.
All the properties were also not included in the schedule.
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Therefore, the suit is bad for non-joinder of necessary parties
and for partial partition. The proposed amendment will change
the nature of suit, which was filed during the year 2007. The
inordinate delay in filing the application is not explained.
Therefore, when the matter is pending in the Appellate Court,
the plaintiffs are not entitled to carry out the amendment.
8. Learned counsel further submitted that the
submission made by the learned counsel for the petitioners
discloses that they are seeking remand of the matter once
again to the Trial Court for fresh trial by producing additional
evidence. The same cannot be permitted as the same would
prejudice the right of the defendants. The defendants are
contesting the suit since 2007 and the plaintiffs who are
lethargic cannot be permitted to take advantage of the delay
and latches on their part. Hence, the Trial Court was right in
rejecting the application. Accordingly, they pray for dismissal
of the petition.
9. The petitioners as plaintiffs filed the suit OS No.546
of 2007 seeking declaration that they are having 1/4th share in
item Nos.1 to 4 and half share in item No.8 on the basis of
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registered partition deed dated 15.07.1932, which is marked as
Ex.P19. Initially, the application filed by the plaintiffs seeking
temporary injunction was allowed by the Trial court.
10. Admittedly, there was registered partition deed
dated 15.07.1932 between the grand father of plaintiffs and
defendant No.1. It is stated that only in item Nos.1 to 7, both
the parties to the partition deed are entitled for 1/4th share
each and in respect of item No.8, they are entitled for half
share each. There is no description of the property by referring
to the boundaries or specific measurement of the property.
11. The plaintiffs filed the suit OS No.546 of 2007
seeking declaration of their title and for permanent injunction.
According to the contention of the plaintiffs, the schedule
properties were fallen to the share of his grand father under the
registered partition deed dated 15.07.1932 and therefore, they
are entitled for declaration of their title and for permanent
injunction. It is noticed that defendant No.1 had appeared
before the Trial Court and had taken a specific contention
regarding description of the property. In spite of that, the
plaintiffs have not thought it fit to amend the description of the
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property. They have maintained their stand that the
description of the property is correct. Accordingly, they led
evidence and the Trial Court answered issue No.4 in the
Affirmative holding that defendant No.1 proved that the suit
schedule property includes the share of other persons.
Accordingly, the suit came to be dismissed on merits. The said
judgment and decree passed by the Trial Court was challenged
before the First Appellate Court in RA No.97 of 2016. It is
during the pendency of regular appeal, the present application
came to be filed under Order VI Rule 17 of CPC seeking
permission to amend the plaint on the ground that the
description of the schedule properties are required to be
changed.
12. It is pertinent to note that the plaintiffs after
describing the plaint schedule properties led oral evidence and
got marked the documents. All the oral and documentary
evidence are in support of their contention as taken in the
original plaint. Even according to the learned counsel for the
petitioners, they may have to lead further evidence to
substantiate their contention in support of the proposed
amendment, if the same is allowed. Therefore, it is clear that
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allowing the application for amendment would result in de-nova
trial and the First Appellate Court may have to remand the
matter to the Trial Court permitting the parties to lead both oral
and documentary evidence. Such re-trial is not permissible in
law when there is absolutely no basis for seeking amendment
of the description of the property at the earliest possible time.
When defendant No.1 had taken specific plea in this regard in
the written statement filed by him and when specific issue was
framed by the Trial Court, there is ordinate delay in filing the
application, which remained unexplained. The learned counsel
has no reasonable explanation as to why the plaintiff had not
chosen to amend the description, when the matter was pending
before Trial Court and on what basis now the properties are
described in the proposed amendment. The contention of the
learned counsel for the petitioner that the proposed
amendment to describe the properties as per the registered
partition deed of the year 1932 cannot be accepted, as in the
said document, there is no specific description of the
properties. Moreover, the boundaries and other description of
the property during 1932 may not be sufficient to identify the
property now i.e., after lapse of over 75 years. Under such
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circumstances, I do not find any merit in the contention taken
by the petitioners.
Hence, the writ petition is dismissed.
Sd/-
JUDGE
BGN
