Karnataka High Court
Smt. Renuka D/O Veerappa Palaksh Desai vs Smt. Uma W/O Veerappa Palaksh Desai on 31 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 104264 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104264 OF 2024 (GM-CPC)
BETWEEN:
SMT. RENUKA D/O. VEERAPPA PALAKSH DESAI,
AGED ABOUT 50 YEARS, OCC: HOUSEHOLD WORK,
R/O.FLAT NO.7, 2ND FLOOR, SHUBAKAVITA APARTMENT,
BESIDE TAVARGERI NURSHING HOME,
DHARWAD, TQ: & DIST: DHARWAD-580008.
...PETITIONER
(BY SRI. SHIVAPRASAD S. PATIL, ADVOCATE)
AND:
1. SMT. UMA W/O. VEERAPPA PALAKSH DESAI,
AGED ABOUT 76 YEARS, OCC: HOUSEHOLD,
R/O. HANGARAKI VILLAGE,
TQ: & DIST: DHARWAD-581105.
2. SMT. SANJANA D/O. VEERAPPA URF PAAKSH DESAI,
AGED ABOUT 53 YEARS, OCC: HOUSEHOLD,
R/O. 4232, SIENA CT., SANJOSE CA 95135, USA.
GIRIJA A 3. SRI. BASAVANNEPPA S/O. NEELAPPA BANNIKALLA,
BYAHATTI
AGED ABOUT 83 YEARS, OCC: AGRICULTURE,
Location: HIGH
COURT OF
R/O. MADAPUR VILLAGE, TQ: SAVANUR &
KARANTAKA
DHARWAD DIST: HAVERI-581126.
BENCH
4. SRI. NAGARAJ S/O. CHANNABASAPPA YALIGAR,
AGED ABOUT 56 YEARS, OCC: BUSINESS,
R/O. NAVODAY NAGAR, DHARWAD,
TQ: & DIST: DHARWAD-580003.
5. SMT. PRIYADARSHI CHANNAVEER KANAVI,
AGED ABOUT 63 YEARS, OCC: BUSINESS,
R/O. KALYAN NAGAR, DHARWAD,
TQ: & DIST: DHARWAD-580007.
...RESPONDENTS
(BY SRI. SANTOSH B. MALAGOUDAR, ADV. FOR C/R4)
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WP No. 104264 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
DIRECTION OR ORDER QUASHING THE ORDER DATED 11.06.2024
PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND
CJM, DHARWAD ON I.A. NO.4 IN OS NO.158/2022 VIDE ANNEXURE-
F AND CONSEQUENTLY ALLOW THE I.A. NO.4 IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
This petition is filed praying this Court to quash the
order passed by the Prl. Senior Civil Judge and CJM,
Dharwad, dated 11.06.2024 rejecting the I.A.No.4 filed
under Order VI Rule 17 of Code of Civil Procedure, 1908
(for short, 'CPC') filed in O.S.No.158/2022 wherein the
prayer is made to permit the plaintiff to amend the plaint
in the prayer column to declare that the plaintiff is the co-
owner of the suit schedule property after having framed
the issues.
2. It is contended in the application that one
Veerappa @ Palaksh was the absolute owner of the suit
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schedule property and he died on 31.07.1997 leaving
behind his wife i.e., defendant No.1 and two daughters.
The plaintiff has claimed 1/3rd share in respect of suit
schedule property. It is also contended that after the
death of her father, defendant No.3 got filed varadi
through defendant No.1 and entered her name alone in
respect of suit schedule property. Thereafter, she
executed the sale deed in favour of defendant No.3 on
25.10.2010 and subsequently defendant No.3 executed
the sale deed in favour of defendant Nos.4 and 5. It is
contended that she neither empowered nor authorized to
execute any deed on her behalf and she has also not
relinquished her rights in favour of the defendant No.1 in
respect of the suit property. It is contended that in order
to avoid multiplicity of proceedings and also to avoid any
further legal or technical hurdles, it is necessary to seek
relief of declaration to the effect that she is also the co-
owner of the suit property and that it is necessary to seek
declaration by amending the prayer column of the plaint
and hence, sought for amendment. The said application is
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resisted by the defendant Nos.3 to 5 contending that when
the suit is filed for the relief of partition and separate
possession, without bringing their family properties in
common hotchpotch, the application is not maintainable. It
is also contended that when the matter was listed for
admission, the plaintiff instead of leading evidence, filed
the present application. If the amendment is permitted, it
will change the nature of the suit and hence the same
cannot be granted.
3. The Trial Court, having considered the very
prayer sought in the application and objection statements,
formulated the point 'whether the amendment is
necessary?' and having considered the grounds urged in
the application as well as objection statements comes to
the conclusion that already issues have been framed and
onus is on the plaintiff to prove that whether she was
having her 1/3rd share in the suit property after
establishing her case she will get her right after drawing
preliminary decree consequently final decree. Insofar as
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the partition is concerned, unless the rights of the parties
are determined, it cannot be said that the parties are
having their right in the particular property. Unless the
same has been determined, question of seeking the relief
of declaration to declare that she is the co-owner cannot
be accepted. The Trial Court also observed that when the
suit is filed for the relief of partition, if the relief of
amendment is granted, it will change the very cause of
action and also the nature of the suit and hence not
entitled for the relief of amendment. Being aggrieved by
the said order, the present writ petition is filed before this
Court.
4. Learned counsel for petitioner would
vehemently contend that the very approach of the Trial
Court is erroneous. The Trial Court committed an error in
coming to the conclusion that it will change the nature of
the suit when the suit is filed for the relief of partition, if
the plaintiff do not permitted to amend the prayer, it will
lead to multiplicity of litigations and hence it requires
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interference. The counsel in support of his contention,
relied upon the judgment of the Apex Court in the case of
Life Insurance Corporation of India Vs. Sanjeev Builders
Private Limited and another1 and brought to notice of this
Court at paragraph No.70 wherein an observation is made
with regard to Order II Rule 2 of CPC operates as a bar
against a subsequent suit if the requisite conditions for
application thereof are satisfied and the field of
amendment of pleadings falls far beyond its purview and
also brought to notice of this Court the circumstances
under which the amendment ought to have been allowed.
Relying upon this, the counsel would vehemently contend
that in dealing with a prayer for amendment of pleadings,
the Court should avoid hypothetical approach and is
ordinarily required to be liberal, especially where the
opposite party can be compensated by cost. He also
brought to notice of this Court that the amendment will
not change the very nature of the property as observed by
the Trial Court.
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5. Per contra, the counsel appearing for the
respondent would contend that in the very same judgment
replied upon by the petitioner's counsel, the Hon'ble Apex
Court has held that where the amendment changes the
nature of the suit or the cause of action, so as to set up an
entirely new case, foreign to the case set up in the plaint,
the amendment must be disallowed. The counsel in
support of his argument, relied upon the judgment of the
Hon'ble Apex Court in Asian Hotels (North) Ltd. Vs. Alok
Kumar Lodha and others2 and submits that at paragraph
Nos.10 and 11, the Hon'ble Apex Court held that the
alleged rights of the plaintiffs as perpetual license holders
are yet to be adjudicated. The discussion is also made that
licenses of the original plaintiffs have been revoked.
Therefore, in a suit challenging revocation of the
respective license, the plaintiffs cannot be permitted to
challenge the respective mortgages and counsel referring
this would contend that when the rights of the parties
Civil Appeal Nos.3703-3750/2022
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have not been adjudicated, question of seeking the relief
to declare as co-owner doesn't arise. The counsel also
brought to the notice of this Court the reasoning given by
the Trial Court while rejecting the application filed under
Order VI Rule 17 of CPC, wherein also the Trial Court
comes to the conclusion that it will change the nature of
the suit as well as unless the rights have been
adjudicated, question of declaring as co-owner doesn't
arise.
6. Having heard the petitioner's counsel and also
the counsel appearing for the respondent and having
taken note of the grounds which have been urged in the
application for amendment, admittedly suit is filed for the
relief of partition wherein contention was taken that after
the death of the father, property was mutated in favor of
the mother and subsequently mother had created the sale
deed and also sold the property in favour of defendant
No.3 and defendant No.3 in turn has sold the property in
favour of defendant Nos.4 and 5. It is not in dispute that
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the plaintiff claims the relief of partition of 1/3rd share in
the property which has been sold claiming that the mother
was not having any absolute right to sell the property and
the property belongs to the father. When such prayer is
sought in the suit for partition, unless the rights of the
plaintiff has been determined and adjudicated by the Trial
Court, question of seeking amendment to insert the prayer
to declare the plaintiff as co-owner doesn't arise. The
same has been taken note of by the Trial Court while
rejecting the application. Hence, I do not find any ground
to reverse the finding of the Trial Court. Taking note of the
settled law that when the relief sought changes the nature
of the suit, question of permitting the plaintiff to amend
the prayer doesn't arise.
7. Though the judgment in the case of Life
Insurance Corporation of India (supra) relied on by the
petitioner's counsel is only with regard to the principal for
consideration of amendment, in the very same judgment it
is pointed out by the counsel for the respondent that
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amendment cannot be allowed in case if it changes the
very nature of the suit. The judgment of the Hon'ble Apex
Court in Asian Hotels (North) Ltd. (supra) relied upon by
the counsel for the respondent is squarely applicable to
the facts of the case and hence, I do not find any ground
to set aside the order of the Trial Court.
8. In view of the discussions made above, I pass
the following :
ORDER
Writ Petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
NAA
CT-MCK
