Karnataka High Court
Sri Rocky Muthappa Rai vs Smt Anuradha Muthappa Rai on 25 July, 2024
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NC: 2024:KHC:29302
WP No. 15799 of 2024
C/W WP No. 16806 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.15799 OF 2024 (GM-CPC)
C/W
WRIT PETITION NO.16806 OF 2024 (GM-CPC)
IN WP NO.15799 OF 2024:
BETWEEN:
1. SMT. ANURADHA MUTHAPPA RAI
W/O. LATE MUTHAPPA RAI N.
AGED ABOUT 50 YEARS,
PRESENTLY RESIDING AT NO.14, I CROSS,
SHANTHIVANA LAYOUT,
SAHAKARANAGAR POST,
BENGALURU-560 082.
...PETITIONER
(BY SRI VENKATESH S. ARABATTI, ADVOCATE
Digitally FOR SRI K.S. HARISH, ADVOCATE)
signed by V
MANJUSHA
BAI AND:
Location:
High Court of 1. SRI ROCKY MUTHAPPA RAI
Karnataka
S/O. LATE MUTHAPPA RAI N.
AGED ABOUT 43 YEARS,
PERMANENT RESIDENT OF 7E/26-27,
RAJMAHAL APARTMENT, 8TH CROSS,
9TH MAIN ROAD, RMV EXTENSION,
SADASHIVANAGAR,
BENGALURU-560 080.
2. SRI RICKY MUTHAPPA RAI
S/O. LATE MUTHAPPA RAI N.
AGED ABOUT 33 YEARS,
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
PRESENTLY RESIDING AT 7E/26-27
RAJMAHAL APARTMENT, 8TH CROSS,
9TH MAIN ROAD, RMV EXTENSION,
SADASHIVANAGAR,
BENGALURU-560 080.
3. M.R. STUD FARMS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANEIS ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT NO.135/A, 9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNER.
4. MRN DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNERS.
5. UNNATHI GRANITES AND EXPORTS
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
6. MRS VENTURES
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.215, XANADU,
BIDADI HOBLI,
RAMANAGARA TALUK AND DISTRICT,
REPRESENTED BY ITS PARTNERS.
7. FOUR M PROPERTIES
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
8. ALPHA DEVANAHALLI PROPERTIES LLP
A LIMITED LIABILITY PARTNERSHIP
CREATED UNDER THE LLP ACT,
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
9. APLHA CONSOLIDATED PROJECTS (INDIA) LLP
A LIMITED LIABILITY PARTNERSHIP,
CREATED UNDER THE LLP ACT,
REGISTERED OFFIEC AT NO 135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
10. MR VENTURES
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.348, 12/2,
GROUND FLOOR, 4TH MAIN,
16TH CROSS, SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
11. BIDADI REALTY VENTURES
A PARTNESHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE - 560 080.
REPRESENTED BY ITS PARTNERS.
12. 4 R BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.210/2, II FLOOR,
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
ABOVE RENAULT SHOWROOM,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNERS.
13. CANARA EDUCATION SOCIETY
TRUST REGISTERED UNDER THE TRUST ACT,
NO.10/1, GROUND FLOOR,
LAKSHMINARAYANA COMPLEX,
PALACE ROAD, BANGALORE - 560 052.
REPRESENTED BY ITS TRUSTEE
P ASHWIN PAI.
14. SMT. A PUSHPAJA SHETTY
AGED 68 YEARS,
W/O. JAGANNATHA SHETTY,
DOOR NO.603, SLR MANSION,
I BLOCK, BASAVESHWARA NAGAR,
BANGALORE-560 079.
15. SRI SANJAY C D
MAJOR,
S/O. C H DEVRAJ,
NO.4, BENSON ROAD,
BENSON TOWN, BANGALORE-560 046.
16. NARAYANSWAMY G
AGED ABOUT 38 YEARS,
NO.26/1, 1ST FLOOR,
OPPOSITE TO METRO PILLAR 94-95,
KANAKAPURA ROAD, YELECHENHALLI,
BENGALURU - 560 078.
17. ASHWIN RAI
AGED ABOUT 33 YEARS,
SAJA HOUSE, BULERIKATTE POST,
PUTTUR TALUK, DAKSHINA KANNADA.
18. M/S VISHISTA LEISURES LLP
A REGISTERED LIMITED LIABILITY,
PARTNERSHIP FIRM HAVING OFFICE AT
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
NO.21, FLAT NO.106,
SILVER OAKS, VITTAL MALLYA,
MAHATMA GANDHI ROAD,
BANGALORE-560 001.
REPRESENTED BY ITS DESIGNATED PARTNERS,
MR. H S HARIPRASAD @ HARANAHALLI,
SHIVALINGAIAH HARIPRASAD.
...RESPONDENTS
(BY SRI A. RAVISHANKAR, ADVOCATE FOR R.1;
SRI V. KRISHNA MURTHY, ADVOCATE FOR R.18;
NOTICE TO R.3 TO R.17 IS DISPENSED WITH VIDE
COURT ORDER DATED 19.06.2024.)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH BY WRIT
OR CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR
ORDER DIRECTION IN THE NATURE OF WRIT, THE ORDER
DATED 04.06.2024 PASSED BY THE VII ADDITIONAL CITY
CIVIL JUDGE AND SESSIONS JUDGE, BANGALORE (CCH-19)
ON IA NO.30 IN OS NO.3046/2020 IN SO FOR AS IT REJECTS
THE PRAYER OF THE PLAINTIFF FOR INSERTION OF
AMENDMENTS RELATING TO SCHEDULE 'AE' PER ANNEXURE-A
AND CONSEQUENTLY ALLOW THE APPLICATION AS PRAYED,
ETC.
IN WP NO.16806 OF 2024:
BETWEEN:
1. SRI ROCKY MUTHAPPA RAI
AGED ABOUT 41 YEARS,
S/O. LATE MUTHAPPA RAI N.
PERMANENT RESIDENT OF 7E/26-27,
RAJMAHAL APARTMENT, 8TH CROSS,
9TH MAIN ROAD, RMV EXTENSION,
SADASHIVANAGAR,
BENGALURU-560 080.
2. SRI RICKY MUTHAPPA RAI
AGED ABOUT 31 YEARS,
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NC: 2024:KHC:29302
WP No. 15799 of 2024
C/W WP No. 16806 of 2024
S/O. LATE MUTHAPPA RAI N.
PERMANENT RESIDENT OF 7E/26-27,
RAJMAHAL APARTMENT, 8TH CROSS,
9TH MAIN ROAD, RMV EXTENSION,
SADASHIVANAGAR,
BENGALURU-560 080.
...PETITIONERS
(BY SRI RAVISHANKAR A., ADVOCATE)
AND:
1. SMT. ANURADHA MUTHAPPA RAI
AGED ABOUT 48 YEARS,
W/O. LATE MUTHAPPA RAI N.
PRESENTLY RESIDING AT NO.14, I CROSS,
SHANTHIVAN LAYOUT,
SAHAKARANAGAR POST,
BENGALURU-560 082.
2. M.R. STUD FARMS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANEIS ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT NO.135/A, 9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080
3. MRN DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNERS.
4. UNNATHI GRANITES AND EXPORTS
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
BANGALORE 560 080.
REPRESENTED BY ITS PARTNERS.
5. MRS VENTURES
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.215, XANADU,
BIDADI HOBLI,
RAMANAGARA TALUK AND DISTRICT,
REPRESENTED BY ITS PARTNERS.
6. FOUR M PROPERTIES
A PARTNERSHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
7. ALPHA DEVANAHALLI PROPERTIES LLP
A LIMITED LIABILITY PARTNERSHIP
CREATED UNDER THE LLP ACT,
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
8. APLHA CONSOLIDATED PROJECTS (INDIA) LLP
A LIMITED LIABILITY PARTNERSHIP,
CREATED UNDER THE LLP ACT,
REGISTERED OFFIEC AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
9. MR VENTURES
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.348, 12/2,
GROUND FLOOR, 4TH MAIN,
16TH CROSS, SADASHIVANAGAR,
BANGALORE-560 080.
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
REPRESENTED BY ITS PARTNERS.
10. BIDADI REALTY VENTURES
A PARTNESHIP FIRM HAVING ITS
REGISTERED OFFICE AT NO.135/A,
9TH MAIN, RMV EXTENSION,
SADASHIVANAGAR,
BANGALORE-560 080.
REPRESENTED BY ITS PARTNERS.
11. 4 R BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM HAVING ITS
OFFICE AT NO.210/2, II FLOOR,
ABOVE RENAULT SHOWROOM,
SADASHIVANAGAR,
BANGALORE-560 080
REPRESENTED BY ITS PARTNERS.
12. CANARA EDUCATION SOCIETY
NO.10/1, GROUND FLOOR,
LAKSHMINARAYANA COMPLEX,
PALACE ROAD, BANGALORE-560 052
REPRESENTED BY ITS TRUSTEE
P ASHWIN PAI.
13. SMT. A PUSHPAJA SHETTY
AGED 66 YEARS,
W/O. JAGANNATHA SHETTY,
DOOR NO.603, SLR MANSION,
I BLOCK, BASAVESHWARA NAGAR,
BANGALORE-560 079.
14. SRI SANJAY C D
MAJOR,
S/O. C H DEVRAJ,
NO.4, BENSON ROAD,
BANGALORE-560 046.
15. NARAYANSWAMY G
AGED ABOUT 36 YEARS,
NO.26/1, 1ST FLOOR,
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
OPPOSITE TO METRO PILLAR 94-95,
KANAKAPURA ROAD, YELECHENHALLI,
BENGALURU - 560 078.
16. ASHWIN RAI
AGED ABOUT 31 YEARS,
SAJA HOUSE, BULERIKATTE POST,
PUTTUR TALUK, DAKSHINA KANNADA.
...RESPONDENTS
(BY SRI VENKATESH S. ARABATTI, ADVOCATE FOR
SRI K.S. HARISH, ADVOCATE FOR R.1;
NOTICE TO R.2 TO R.16 ARE DISPENSED WITH
VIDE COURT ORDER DATED 09.07.2024)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
PASSED BY THE VII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, (CCH-19), BENGALURU, DATED 04.06.2024 PASSED
ON I.A.NO.30 FILED UNDER ORDER VI RULE 17 OF CPC., IN
O.S.NO.3046/2020, SO FAR RELATING TO INCLUSION OF
ITEMS NO.9 TO 12 PROPERTIES IN SUIT SCHEDULE 'S'
HEREWITH PRODUCED AS ANNEXURE-A, ETC.
THESE PETITIONS ARE COMING ON FOR FURTHER
HEARING, THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE M.I.ARUN
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WP No. 15799 of 2024
C/W WP No. 16806 of 2024
ORAL ORDER
(PER: HON'BLE MR JUSTICE M.I.ARUN)
1. Aggrieved by the order dated 04.06.2024 passed by
VII Additional City Civil and Sessions Judge, Bengaluru on
I.A.No.30 in O.S.No.3046/2020 insofar as it relates to
rejecting the prayer of the plaintiff in insertion of
amendments relating to Schedule 'AE' property in the said
application, the plaintiff therein has preferred Writ Petition
No.15799/2024 and aggrieved by allowing the amendment
to insert item nos.9 to 12 in Schedule 'S' properties to the
plaint, defendant nos.1 and 2 therein have preferred Writ
Petition No.16806/2024.
2. The parties are referred to as per their status in
W.P.No.15799/2024.
3. Plaintiff/petitioner is the step mother of defendant
nos.1 and 2. The late husband of the petitioner, who is
also the father of respondent nos.1 and 2, held shares in
respondent nos.3 to 13 entities.
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4. Respondent no.18 purchased the Schedule 'AE'
property from respondent nos.1 and 2.
5. The petitioner herein filed O.S.No.3046/2020 against
respondent nos.1 and 2 herein and few other persons for a
relief of partition and separate possession to an extent of
1/3rd share in all the properties described in the Schedule
to the plaint.
6. During the course of the proceedings, petitioner herein
filed I.A.No.9 in the original suit and sought for amending
the plaint wherein, apart from other things, she sought to
amend Schedule 'C' property and also include properties at
items 1 to 19 in the said application as part of Schedule 'D'
property to the plaint. Item nos.1 to 18 of Schedule 'D' as
mentioned in the said application pertain to lands situated
in Navilahalli village, K.Hoskote Hobli, Alur Taluk, Hassan
District. Item No.19, however, pertain to Daithapura
village and is described as hereinbelow:
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"ITEM NO.19
All that piece and parcel of coffee plantation lands at
Daithapura Village, K.Hoskote Hobli, Alur Taluk, Hassan District
in the following Survey Nos'
Survey No. Extent
1/4 0 Acres 14 Guntas
36/2 51 Acres 15 Guntas
The said item no.19 is the subject matter of the writ
petition.
7. Before orders could be passed by the trial court on
I.A.No.9 filed by the petitioner herein, defendant nos.20
and 21 in the original suit purchased item nos.1 to 18 in
the proposed Schedule 'D' property from defendant nos.1
to 3. It is submitted that they also purchased proposed
Schedule 'C' property. Subsequently, the said purchasers
paid certain amounts to the petitioner herein and the
petitioner executed confirmation deed in respect of
proposed Schedule 'C' and items 1 to 18 of Schedule 'D'
properties. Thereafter, a compromise petition was filed to
that effect and a prayer was made to the trial court to
pass a decree regarding relinquishment of rights of the
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parties concerned in Schedule 'C' properties and Schedule
'D' properties as it was mentioned in the original plaint.
8. The trial court passed a judgment and decree in
respect of Schedule 'C' and 'D' properties as in the original
plaint wherein it recognised that the suit properties have
been sold in favour of defendant nos.20 and 21. It is
submitted by the petitioner that by virtue of I.A.No.9, the
petitioner intended to describe the immovable property,
which was part of Navilahalli Plantation LLP, which was
originally mentioned in Schedule 'D' to the plaint.
9. Thereafter, on 06.03.2023, as petitioner had entered
into a compromise with defendant nos.20 and 21, a memo
was filed by the petitioner which stated that the petitioner
would not press the amendment sought in respect of
entire Schedule 'C' and 'D' properties as mentioned in
I.A.No.9. The said memo was allowed by the trial court by
an order dated 16.03.2023 and on the very same day,
I.A.No.9 was also allowed wherein the amendment sought
for by the petitioner/plaintiff has been allowed excluding
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Schedule 'C' and 'D' properties to the said IA and the
petitioner also carried out necessary amendments to the
original suit excluding Schedule 'C' and 'D' properties to
the original suit.
10. Then, on 13.02.2024, on the strength of deletion of
Schedule 'D' property, which included item no.19 in
Schedule 'D' property, from the proceedings before the
trial court, defendant nos.1 and 2/respondent nos.1 and 2
herein executed sale deed in favour of respondent no.18
herein in respect of the property concerned. Immediately
thereafter, the petitioner herein filed I.A.No.28 to further
amend the plaint pleadings by including the original
proposed item no.19 to Schedule 'D' as Schedule 'AE' in
the plaint and also filed IA No.29 to implead respondent
no.18 herein as defendant no.22 in the original suit.
However, as petitioner had again committed mistakes in
the manner in which I.A.No.28 was drafted, she sought
the permission of the Court to withdraw the said I.A. as
not pressed with liberty to file a fresh I.A. and the same
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was granted to her by the trial court. Thereafter, the
petitioner filed I.A.No.30 wherein she sought to include
item No.19 in Schedule 'D' property as stated in I.A.No.9
as Schedule 'AE' and also some other properties as
Schedule 'S' to the plaint and sought permission of the
Court to amend the pleadings.
11. The said IA came to be allowed in part wherein the
prayer of the petitioner to include item nos.9 to 12 to
Schedule 'S' in the plaint has been allowed but whereas
the amendment sought to include Schedule 'AE' to the
plaint has been rejected. Aggrieved by the order of the
trial court wherein the prayer of the petitioner to include
Schedule 'AE' to the plaint has been rejected, the plaintiff
therein has preferred W.P.No.15799/2024 and aggrieved
by the order of the trial court allowing the amendment of
the plaint to include item nos.9 to 12 to Schedule 'S',
defendant nos.1 and 2 in the original suit have preferred
W.P.No.16806/2024.
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12. The case of the petitioner is that the trial court erred
in not allowing the amendment as sought for to include
Schedule 'AE' property in the plaint. She justifies the
order insofar as it relates to include item nos.9 to 12 to
Schedule 'S' properties in the plaint.
13. Per contra, respondent nos.1 and 2 justify the order
passed in respect of Schedule 'AE' and challenge the order
passed in respect of Schedule 'S' properties by the trial
court in the order on the amendment application.
14. The trial court has dismissed the proposed
amendment regarding Schedule 'AE' property on the
ground that the petitioner by way of I.A.No.9 sought for
insertion of Schedule 'AE' property as item no.19 in
Schedule 'D' and thereafter filed a memo to reject the
proposed amendment, which has been accepted by the
trial court and filing of a fresh application to again make
similar amendment is hit by Order II Rule 2 of CPC.
15. With regard to allowing the amendment in respect of
Schedule 'S' properties, the trial court has reasoned that
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the petitioner has sought for partition of the properties
purchased out of the funds of her late husband and
Schedule 'S' properties are also said to have been bought
in the name of respondent nos.1 and 2 by their late father
and that the petitioner has sought to include the same
immediately after coming to know about the said
properties immediately.
16. The question that arises for consideration is whether
the trial court erred in its decision or not?
17. With regard to Schedule 'S' properties:
(a) Admittedly, Schedule 'S' properties were purchased
in the name of respondent nos.1 and 2 in the year 2012.
Their father who was also husband of the petitioner is said
to have died in the year 2020. Even presuming that the
said properties were purchased out of the funds of the
deceased husband of the petitioner, the provisions of the
Benami Transactions (Prohibition) Act, 1988, as it stood
then prohibited the husband of the petitioner making any
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claim on the said properties when he was alive. Section
2(a) of the Act reads as under:
"2(a) benami transaction means any transaction in
which property is transferred to one person for a
consideration paid or provided by another
person;"
Section 3(1) and (2) as it stood then, read as under:
"3. Prohibition of benami transactions- (1) No person
shall enter into any benami transaction.
(2) Nothing in sub-section(1) shall apply to the
purchase of property by any person in the name
of his wife or unmarried daughter and it shall be
presumed, unless the contrary is proved, that the
said property had been purchased for the benefit
of the wife of the unmarried daughter."
Section 4(1) and (2) as it stood then, read as under:
"4. Prohibition of the right to recover property
held benami- (1) No suit, claim or action to
enforce any right in respect of any property held
benami against the person in whose name the
property is held or against any other person shall
lie by or on behalf of a person claiming to be the
real owner of such property.
(2) No defence based on any right in respect of
any property held benami, whether against the
person in whose name the property is held or
against any other person, shall be allowed in any
suit, claim or action by or on behalf of a person
claiming to be the real owner of such property."
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Thus, as per the aforementioned provisions, a father
who purchased the properties in the name of his major
son, was prohibited from making a claim as to the
ownership of the property on the ground that the same
was purchased out of his funds. In the instant case, the
petitioner is trying to claim a right on the Schedule 'S'
properties through the right of her deceased husband,
which is impermissible.
(b) For the aforementioned reasons, in my opinion, the
trial court erred in allowing I.A.No.30 insofar as it relates
to insertion of item nos.9 to 12 to Schedule 'S' properties
in the plaint.
18. With regard to Schedule 'AE' property:
(a) Admittedly, petitioner is the second wife of her late
husband, married after the demise of the first wife.
Respondent nos.1 and 2 are born to the first wife.
Schedule 'AE' property was purchased in the name of the
first wife. The case of the petitioner is that the properties
concerned were also purchased out of the funds of her late
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husband and that she has a right over the same. It is also
argued that even otherwise, if it is presumed that the first
wife had the sources to purchase the said properties, she
died intestate and that her late husband has a right over a
portion of the property and she inherits that right. Per
contra, respondent nos.1 and 2 submit that the property
belonged exclusively to their late mother and they have
inherited the same by way of a will executed by her in
their favour.
(b) The aforementioned contentions can be decided only
after a full fledged trial before the trial court. However,
the question that needs to be decided in the instant writ
petitions is whether the petitioner satisfies the
requirements under Order VI Rule 17 of CPC, for the trial
court to permit her to amend the plaint.
(c) Order VI Rule 17 of CPC reads as under:
"17. Amendment of pleadings.- The Court may at any
stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made
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as may be necessary for the purpose of determining the
real questions in controversy between the parties:
Provided that no application for amendment shall
be allowed after the trial has commenced, unless the
Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter
before the commencement of trial."
(d) The suit is for partition and separate possession of
the suit schedule properties. The same is instituted in the
year 2020. I.A.No.9 for including item no.19 in Schedule
'D' was filed on 02.08.2021. This was before
commencement of the trial and the petitioner has pleaded
that she was not aware of the existence of the property
and immediately after coming to know of the same, she
has filed the amendment application. On 27.08.2021, the
petitioner has made a representation to the Sub-Registrar,
Alur Taluk, not to register any sale deed regarding the
property concerned. On 06.03.2023, during the pendency
of I.A.No.9, the petitioner filed a memo to delete Schedule
'C' and 'D' properties from the proposed amendment and it
included Schedule 'AE' property (item no.19 of
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Schedule 'D'). On 16.03.2023, the trial court passed an
order on the memo, wherein the same was accepted. On
the same day, an order was passed on I.A.No.9, wherein
amendment to the plaint was allowed after deleting the
proposed Schedule 'C' and 'D' properties, which included
the present Schedule 'AE' property. On 28.03.2023, the
petitioner has carried out the amendment to the plaint as
per the orders of the trial court. Thereafter, the case has
been posted for evidence of the plaintiff and by
05.02.2024, all the witnesses on the side of the petitioner
have been examined. On 11.03.2024, affidavit evidence
of DW.1 has been filed. In the meanwhile, by way of a
sale deed dated 13.02.2024 registered on 17.03.2024,
Schedule 'AE' property has been sold by respondent nos.1
and 2 in favour of respondent no.18. On 27.03.2024,
petitioner filed I.A.No.28 to amend the plaint and to insert
Schedule 'AE' property. On 19.04.2024, the plaintiff has
filed a memo before the trial court seeking dismissal of
I.A.No.28 with liberty to file a fresh application on the
ground that there was certain errors in the said
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application. On 25.04.2024, I.A.No.30 is filed to insert
Schedule 'AE' property in the plaint by way of amendment.
(e) As per Order VI Rule 17 of CPC, an application for
amendment to a plaint, after the trial has commenced,
cannot be allowed by the trial court unless it comes to the
conclusion that in spite of due diligence, the plaintiff could
not have raised the matter before the commencement of
the trial.
(f) The case of the petitioner is that at the first instance,
she never intended to delete Schedule 'AE' property which
was part of item no.19 of Schedule 'D' to I.A.No.9. By a
mistake committed while filing the memo to delete
Schedule 'C' and 'D' properties to I.A.No.9, the present
Schedule 'AE' property came to be included in the memo
and an order to that effect was passed by the trial court.
However, the compromise was with regard to properties
excluding Schedule 'AE', which is a matter of record. That
the interest of justice will suffer if she is not permitted to
insert the same now.
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(g) Per contra, it is the case of respondent nos.1, 2 and
18 that the same was deliberately deleted by the
petitioner. It is submitted that as defendant nos.20 and
21 purchased Schedule 'C' and 'D' properties (except item
no.19 to Schedule D) to I.A.No.9, the petitioner though
having no rights over the same, threatened to engage
them in the litigation and to buy peace, they paid certain
amounts and the said properties were deleted. It is
submitted that with regard to Schedule 'AE' property also,
she did the same thing with respondent no.18 and her
representation to the Sub-Registrar, with a request not to
register the sale deed is a testimony of it. It is also
submitted during arguments that amounts have been paid
to her by third persons on behalf of respondent no.18 and
as she was not satisfied by the same, has filed I.A.No.30
to include the properties again.
(h) Whether petitioner has received any money as
alleged or not cannot be decided in these proceedings.
What needs to be considered is that I.A.No.30 is filed after
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commencement of the trial and whether the petitioner
satisfies that in spite of due diligence she could not have
raised the matter before commencement of the trial.
(i) Perusal of the affidavit filed in the trial court by the
petitioner along with the amendment application
(I.A.No.30), shows that the petitioner has not made an
averment to the effect that in spite of due diligence, she
could not have sought the said amendment. The only
contention taken by the petitioner is that, she sought the
amendment to include the property by way of I.A.No.9
which was filed before commencement of trial, but by
mistake got the same deleted by filing a memo and the
same was never intended and that it happened by mistake
and I.A.No.30 is filed to rectify the same and interest of
justice requires allowing the same.
(j) However, the contention of the petitioner cannot be
accepted if one were to analyse the sequence of events as
detailed in paragraph 18(d) supra. The petitioner is a well
educated lady, conscious of her rights. She wants a share
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in the properties purchased in the name of her step
children and their late mother, much before she having
married her late husband. After passing of the order on
the memo filed by her, deleting Schedule 'AE' property,
she has carried out the amendment to the plaint, adduced
evidence and has been cross examined and has waited till
sale deed is executed in favour of respondent no.18, after
giving a representation to the Sub-Registrar not to register
the property and thereafter has filed the present
application for amendment. The said action, even if it is
presumed is not deliberate, has to be considered as
negligent. It cannot be considered as the petitioner
having exercised due diligence as contemplated in Order
VI Rule 17 of CPC. Hence, in my opinion, without going
into, whether the trial court erred in concluding that Order
II Rule 2 of CPC comes in the way of the application, the
same has to be dismissed on the ground that the
requirements of proviso to Order VI Rule 17 of CPC is not
satisfied by the petitioner herein.
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19. Hence, the following:
ORDER
(i) W.P.No.15799/2024 is hereby dismissed;
(ii) W.P.No.16806/2024 is hereby allowed;
(iii) The impugned order dated 04.06.2024passed
by VII Additional City Civil and Sessions Judge,
Bengaluru on I.A.No.30 in O.S.No.3046/2020
insofar as it relates to allowing insertion of item
nos.9 to 12 to the plaint 'S' Schedule and to
insert pleadings in that regard are hereby set
aside;
(iv) I.A.No.30 filed by the petitioner herein in
O.S.No.3046/2020 pending on the file of VII
Additional City Civil and Sessions Judge,
Bengaluru, is hereby dismissed.
Sd/-
(M.I.ARUN)
JUDGE
hkh.
