Karnataka High Court
Sri A Giddanna vs Sri B M Devadas on 5 January, 2024
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WP No. 45059 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 45059 OF 2015 (GM-CPC)
BETWEEN:
1. SRI. A. GIDDANNA,
S/O LATE APPAJAPPA,
SINCE DECEASED BY HIS LR'S
1(A) SMT. LAKSHMIDEVAMMA,
W/O LATE. A. GIDDANNA,
(SINCE DECEASED, DELETED
AS PER ORDER DATED 30.05.2019)
1(B) SRI. G. MAHESH,
AGED ABOUT 55 YEARS,
S/O LATE. A. GIDDANNA,
RESIDING AT NO.49,
9TH 'C' CROSS, 20TH MAIN ROAD,
SMS LAYOUT, J.P. NAGAR V PHASE,
BENGALURU - 560 078
1(C) SRI. G. BHASKAR,
AGED ABOUT 52 YEARS,
Digitally S/O LATE. A. GIDDANNA,
signed by RESIDING AT NO.254,
PAVITHRA N 37TH 'A' CROSS, 4TH 'T' BLOCK,
Location: 11TH MAIN ROAD, JAYANAGAR,
high court of BENGALURU - 560 041
karnataka
1(D) SRI. NAGARAJU,
AGED ABOUT 45 YEARS,
S/O LATE. A. GIDDANNA,
RESIDING AT NO.74,
27TH CROSS, CUBBONPET,
BENGALURU - 560 002.
1(E) SRI. G. HEMARAJU,
AGED ABOUT 40 YEARS,
S/O LATE. A. GIDDANNA,
RESIDING AT NO. 49,
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WP No. 45059 of 2015
19TH 'C' CROSS, 20TH MAIN ROAD,
SMS LAYOUT, J.P. NAGAR V PHASE,
BENGALURU - 560 070
SRI. A. NAGARAJ,
SINCE DECEASED BY HIS LRS
2. SMT. KAMALAMMA,
AGED ABOUT 64 YEARS,
W/O. LATE A. NAGARAJ,
(SINCE DECEASED, HER ONLY
SON SRI. RAMESH, PETITIONER
NO.3 IS TREATED AS HER LR)
3. SRI. RAMESH
(REAL NAME N. VENKATESH),
AGED ABOUT 38 YEARS,
S/O. LATE A. NAGARAJ,
SRI. A. SOMASHEKAR,
SINCE DECEASED BY HIS LRS
4. SMT. SHANTHAMMA
AGED ABOUT 67 YEARS,
W/O LATE A. SOMASHEKAR,
(SINCE DECEASED BY HER ONLY
SON SRI. S. SHASHIKUMAR,
THE PETITIONER NO.5
IS TREAD AS HER LR)
5. SRI. S. SHASHIKUMAR
AGED ABOUT 38 YEARS,
S/O. LATE A. SOMASHEKAR
THE PETITIONER 1 TO 5
RESIDING AT NO.75,
27TH CROSS,
ANJANEYA TEMPLE STREET,
BETTASETTIPET, CUBBONPET,
BANGALORE - 560 002.
SRI. A. SHIVASHANKAR,
(SINCE DECEASED BY HIS LRS)
6. SMT. SHANKARAMMA
AGED ABOUT 69 YEARS,
W/O. LATE A. SHIVASHANKAR,
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WP No. 45059 of 2015
7. SRI. PARAMESH,
AGED ABOUT 41 YEARS,
S/O. LATE A. SHIVASHANKAR
SINCE DECEASED BY HIS LRS
7(A). SMT. S. SHANTHALA,
AGED ABOUT 41 YEARS,
W/O LATE. PARAMESH,
7(B). SMT. TANUJA,
AGED ABOUT 21 YEARS,
D/O LATE. PARAMESH,
BOTH ARE RESIDING AT NO.11,
CHIKKANNAMMA TEMPLE STREET,
JOURIPED, BENGALURU - 560 002.
8. SRI. KESHAV,
AGED ABOUT 41 YEARS,
S/O. LATE A. SHIVASHANKAR,
9. SMT. TARA
AGED ABOUT 37 YEARS,
D/O. LATE A. SHIVASHANKAR,
& W/O LATE RAGHAVENDRA,
10. SRI. CHANDRU,
AGED ABOUT 35 YEARS,
S/O LATE A. SHIVASHANKAR
THE RESPONDENTS 8 TO 10
ARE RESIDING AT NO.11,
CHIKKANAMMAGUDI BEEDHI,
JOURIPETE, BANGALORE - 560 002.
...PETITIONERS
(BY SRI: K.K. VASANTH, ADVOCATE)
AND:
1. SRI B M DEVADAS,
AGED ABOUT 55 YEARS,
S/O LATE B.N. MUNILAKSHMAIAH,
R/AT NO.954, 29TH "A" MAIN,
9TH BLOCK, JAYANAGAR,
BANGALORE - 560 069.
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WP No. 45059 of 2015
2. SMT. RENUKA
AGED ABOUT 49 YEARS,
D/O. LATE A. NAGARAJA,
3. SMT. BHARATHI
AGED ABOUT 44 YEARS,
D/O. LATE A. NAGARAJA,
4. SMT. USHA
AGED ABOUT 34 YEARS,
D/O. LATE A. NAGARAJA,
THE RESPONDENTS 2 TO 4
ARE RESIDING AT NO.75,
27TH CROSS,
ANJANEYA TEMPLE STREET,
BETTASETTIPET, CUBBONPET,
BANGALORE - 560 002.
5. SMT. SHUDA
AGED ABOUT 42 YEARS,
D/O. LATE A. NAGARAJA,
R/AT GOTTAKERE,
WEAVERS COLONY LAYOUT,
NO.875, 8TH CROSS,
BANNERUGHATTA ROAD,
BANGALORE - 560 083.
6. SMT. NALINI
AGED ABOUT 46 YEARS,
D/O. LATE A. NAGARAJA,
R/AT GOTTAKERE,
WEAVERS COLONY LAYOUT,
NO.738, 8TH CROSS,
BANNERUGHATTA ROAD,
BANGALORE - 560 083.
7. SMT. LAKSHMIDEVAMMA
AGED ABOUT 95 YEARS,
W/O LATE B.N. MUNILAKSHMAIAH,
R/AT NO.75, 27TH CROSS,
ANJANEYA TEMPLE STREET,
BETTEASETTYPETE, CUBBONPET,
BANGALORE - 560 002.
8. SMT G. UMA,
AGED ABOUT 49YEARS,
D/O LATE A. GIDDANNA AND
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WP No. 45059 of 2015
W/O DHANANJEYA,
R/O MOTAGANALLI,
SOLUR HOMBLI, MAGADI TALUK,
RAMANAGARA DISTRICT - 562 127
9. SMT. G. INDIRA,
AGED ABOUT 47 YEARS,
D/O LATE A. GIDDANNA AND
W/O CHANDRAMOHAN,
R/AT NO. 1442, 37TH C CROSS,
4TH T BLOCK, 11TH MAIN ROAD,
JAYANAGARA, BENGALURU - 560 041.
10. SMT. G. SHANTHA,
AGED ABOUT 43 YEARS,
D/O LATE A. GIDDANNA AND
W/O NARASIMHAMURTHY,
R/AT NO.42, 7TH MAIN ROAD,
7TH CROSS, BEHIND
AMBAMAHESHWARI TEMPLE,
CHENNIGAPPA LAYOUT,
KAMAKSHIPALYA, BENGALURU - 560 079.
11. SMT. SATHYABHAMA,
AGED ABOUT 54 YEARS,
D/O LATE A. GIDDANNA AND
W/O B.NM. DEVADAS,
R/AT NO.954, 29TH A MAIN,
9TH BLOCK, JAYANAGARA,
BENGALURU - 560 069.
(THE RESPONDENTS NO. 8 TO 11 ARE
IMPLEADED AS PER ORDER DATED 04.08.2023.
...RESPONDENTS
(BY SRI: .R.P. SOMASHEKARAIAH, ADVOCATE FOR R1
R 2 TO 7 - D/W, R8 - 11 - SERVED)
THIS WP IS FILED UNDER ARTICLE 2278 OF THE
CONSTITUTION OF INDAI PRAYING TO CALL FOR RECORDS IN
O.S.NO.6462/2005, ON THE FILE OF THE FIRST ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AT BANGALORE AND SET ASIDE THE
ORDERS DTD.23.9.2015 PASSED ON I.A.NO.IX IN
O.S.NO.6462/2009 BY THE FIRST ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BANGALORE VIDE ANNEX-J AND ETC.,
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WP No. 45059 of 2015
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendants in O.S.No.6462/2005 on the file of the
learned I Additional City Civil and Sessions Judge at Bengaluru,
CCH-2 (hereinafter referred to as 'the trial Court' for brevity),
are impugning the order dated 23.09.2015 rejecting I.A.No.9
filed under Order VI Rule 17 of CPC seeking permission to
amend the written statement.
2. Heard Sri. K.K.Vasanth, learned counsel for the
petitioners and Sri. R.P. Somashekaraiah, learned counsel for
the respondents. Perused the materials on record.
3. Learned counsel for the petitioners submits that the
plaintiff had filed the suit O.S.No.196/1970 which came to be
renumbered as O.S.No.196/1980, seeking declaration that he is
the adopted son of B.N.Munilakshmaiah and for partition and
separate possession of his half share in the properties
mentioned therein. The said suit came to be decreed in part
vide judgment dated 22.04.1992 declaring that the plaintiff is
the adopted son of B.N.Munilakshmaiah, while rejecting his
claim for partition and separate possession of his share in the
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suit properties. The plaintiff had preferred RFA No.379/1992
before this Court impugning the said judgment and decree.
RFA No.379/1992 also came to be dismissed vide judgment
dated 13.07.1998. Therefore, the judgment and decree passed
in O.S.No.196/1980 has reached finality.
4. Learned counsel also submits that the plaintiff filed
the present suit seeking partition and separate possession of
the very same suit properties against the very same
defendants. The defendants have filed the written statement
denying the right of the plaintiff. However, during the
pendency of the suit, the defendants came to know that the
plaintiff had sought for partition and separate possession of his
share in FDP No.9/2006 before the learned Additional Senior
Civil Judge, Mysore, claiming right in the properties belonging
to the natural father, where he has suppressed the fact that he
was adopted son of B.N.Munilakshmaiah. When the said fact
was brought to the notice of the defendants, immediately they
applied for certified copy of the judgment dated 05.04.2011
passed in the final decree proceeding. The copy was obtained
only on 22.08.2012. Immediately I.A.No.9 was filed seeking
amendment of the written statement raising a specific plea that
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the plaintiff had taken inconsistent plea and also the suit of the
plaintiff is hit by principles of res-judicata. Necessary pleading
is required to substantiate the said defence. But the trial Court
without considering the facts and circumstances, dismissed the
application only on the ground that there is delay in filing the
application and that since the plea of res-judicata is purely a
question of law, the amendment is not required to be
carriedout in the written statement. The said finding is
erroneous and therefore, he rays for allowing the writ petition.
5. Learned counsel for the respondents has not
addressed his argument inspite of giving sufficient opportunity.
6. The suit is one for partition and separate possession
filed by the plaintiff. The defendants have contested the matter
by filing the written statement. IA No.9 was filed by the
defendants to take specific plea that suit of the plaintiff hit by
principles of res-judicata and that plaintiff has taken
inconsistent stand by claiming partition and separate
possession as adopted son of B.N.Munilakshmaiah as in FDP
No.9/2006 on the file of learned Additional Senior Civil Judge,
Mysore very same plaintiff sought for partition and separate
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possession of the properties involved therein claiming to be the
natural son. Therefore, plaintiff is not entitled for grant of any
relief. The said application was considered by the Trial Court
and the same was came to be rejected on the ground that the
trial has already commenced. Therefore, application is liable to
be dismissed.
7. It is to be noticed that the defendants are not
parties in FDP No.9/2006 and they have produced final decree
dated 05.04.2011, which apparently discloses that copy was
obtained on 27.08.2012. Immediately, thereafter present
application was came to be filed.
8. The second ground highlighted by the Trial Court is
that the amendment is not necessary as question of res-
judicata is purely a question of law. This question of resjudicata
raised by the petition is mixed question of law. Necessary
pleadings must be there in written the statement to enable the
Court to form an opinion as to whether the principle of res-
judicata will be applicable or not. Without there being any
material and pleadings to attract the principle of res-judicata, it
will be difficult for the Trial Court to determine the said
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question and even frame issue in that regard. Therefore, I am
of the opinion that finding recorded by the Trial Court is
erroneous and same is liable to be set aside. Hence, I proceed
to pass the following:
ORDER
i. Writ petition is allowed.
ii. The impugned order dated 23.09.2015 passed in
O.S.No.6462/2005 on the file of the learned I
Additional City Civil and Sessions Judge at
Bengaluru, CCH-2 rejecting I.A.No.9 filed under
Order VI Rule 17 of CPC is set aside.
iii. Consequently, IA No.9 is allowed and permitted to
carryout the amendment.
Sd/-
JUDGE
BH
