Karnataka High Court
Sapani @ Sampathkumar vs Shivkumar And Ors on 7 June, 2024
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WP No. 202671 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.202671 OF 2023 (GM-CPC)
BETWEEN:
SAPANI @ SAMPATHKUMAR
S/O SHANKERAPPA SHEELWANTH,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O H.NO.8-9-28,
JAIL COLONY, BIDAR -585401.
...PETITIONER
(BY SRI. RAVI B. PATIL, ADVOCATE)
AND:
1. SHIVKUMAR
S/O LATE BASAWARAJ CHANDA,
Digitally AGED ABOUT 48 YEARS,
signed by OCC: SERVICE,
RENUKA
R/O HOUSING BOARD COLONY,
Location: High
Court Of BIDAR-585 401.
Karnataka
2. JYOTI
D/O LATE BASAWARAJ CHANDA,
AGED ABOUT 45 YEARS,
OCC: HOUSEHOLD,
R/O HOUSING BOARD COLONY,
BIDAR-585 401.
3. DEEPA
D/O LATE BASAWARAJ CHANDA,
AGED ABOUT 43 YEARS,
OCC: HOUSEHOLD,
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WP No. 202671 of 2023
R/O HOUSING BOARD COLONY,
BIDAR-585 401.
4. SHAKUNTALA
W/O LATE BASAWARAJ CHANDA,
AGED ABOUT 68 YEARS,
OCC: HOUSEHOLD,
R/O HOUSING BOARD COLONY,
BIDAR-585 401.
...RESPONDENTS
(V/O DATED 14/3/2024 NOTICE TO R2 TO R4
IS DISPENSED WITH;
V/O DATED 31/5/2024 NOTICE TO R1
IS HELD SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
07-09-2023 PASSED IN RA NO.84/2023 (OLD NO 104/19) BY
THE COURT OF PRINCIPAL JUDGE, FAMILY COURT, BIDAR,
REJECTING THE APPLICATION BEARING I.A. NO.V SEEKING
AMENDMENT OF PLAINT BY INCORPORATING ADDITIONAL
PLEADINGS AS AT ANNEXURE-G AS ILLEGAL, ARBITRARY IN
NATURE AND CONSEQUENTIALLY TO ALLOW THE APPLICATION
AS PRAYED FOR.
THIS PETITIONCOMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged an order dated
07.09.2023 passed by the Principal Judge, Family Court,
Bidar in R.A. No.84/2023, by which, an application filed by
the petitioner to amend the plaint in O.S. No.64/2015 was
rejected.
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2. The petitioner filed O.S.No.64/2015 for a
declaration that he was the owner of land Sy.No.186/D
situate at Chitta village, Bidar Taluk and District and for
perpetual injunction. He also sought for a declaration that
the compromise decree passed by the Additional Senior
Civil Judge, Bidar in O.S.No.229/2003 dated 28.01.2005
was null and void and not binding upon his rights. The
petitioner claimed that the suit property belonged to Smt.
Chalugulla Jhansi Laxmibai. Her name was entered in
record of rights. The petitioner purportedly purchased the
aforesaid land from Smt. Jhansi Laxmibai in terms of a
sale deed dated 17.02.2007. He claimed that his name
was entered in the record of rights as owner of the suit
property. When things stood thus, the father of
respondent Nos.1 to 3 and the husband of respondent
No.4 late Basawaraj had filed a suit in O.S. No.229/2003
against the said Jhansi Laxmibai. It was alleged that a
fictitious Special Power of Attorney was brought about in
favour of Mr.Deepak Kumar Patwari, which was notarized
before the notary and that the said Mr.Deepak Kumar
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appeared in O.S.No.229/2003 on behalf of Smt. Jhansi
Laxmibai and consented to a compromise, consequent to
which the suit in O.S.No.229/2003 was decreed. The
petitioner contended in O.S.No.64/2015 that Smt. Jhansi
Laxmibai did not execute the Special Power of Attorney in
favour of Mr.Deepak Kumar and that the entire
compromise brought about in O.S.No.229/2003 was
fraudulent and without the notice and knowledge of Smt.
Jhansi Laxmibai and therefore, prayed that the said decree
also be set aside.
3. The suit was contested by the defendants on
various grounds. The Trial Court framed issues and
recorded the evidence of the plaintiff, who was examined
as PW.1 and four other witnesses were examined as PWs.2
to 5. He also marked documents as Exs.P1 to P24.
Respondent No.1 herein was examined as DW.1 and he
marked documents as Exs.D1 to D5. The Trial Court after
considering the oral and documentary evidence, dismissed
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the suit in terms of the judgment and decree dated
13.11.2019.
4. Being aggrieved by the said judgment and
decree, the petitioner filed R.A. No.104/2019. During the
pendency of the proceedings before the Appellate Court,
the petitioner filed an application under Order VI Rule 17
of CPC to amend the plaint to incorporate certain
additional pleadings, which he allegedly realized after the
suit in O.S. No.64/2015 was disposed of. The said
application was contested by the respondents, who
contended that the application was belated and was not
supported by any reasons. It was also contended that the
petitioner did not exercise due diligence in prosecuting the
suit by pleading adequate facts. The Appellate Court after
considering the contentions of both the parties, rejected
the application in terms of the impugned order dated
07.09.2023 on the ground that the application for
amendment has to be filed prior to the commencement of
evidence and that the petitioner failed to demonstrate that
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despite due diligence, he could not seek amendment of the
pleadings. Being aggrieved by the said order, this petition
is filed.
5. Learned counsel for the petitioner contends that
the facts that are sought to be brought on record by way
of an amendment came to the notice of the petitioner
recently and therefore, those facts being material for the
consideration of the suit, the Trial Court must have
allowed the application.
6. The respondents though served with the notice,
are absent.
7. A perusal of the decree passed in
O.S.No.64/2015 shows that the petitioner had pleaded
that the Special Power of Attorney allegedly executed by
Smt. Jhansi Laxmibai in favour of Mr.Deepak Kumar was
fraudulent, as Smt. Jhansi Laxmibai did not execute any
such document. The best evidence that could have been
produced before the Trial Court was the evidence of Smt.
Jhansi Laxmibai. It is difficult to accept the contention of
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the petitioner that the facts that are sought to be brought
on record have come to the notice and knowledge of the
petitioner recently, as the petitioner is bound to have
knowledge of the entire proceedings in O.S.No.229/2003
and was bound to plead all those facts at the earliest.
There is no reason to accept the claim of the petitioner
that despite due diligence he could not plead these facts.
In that view of the matter, the Appellate Court was
justified in not entertaining the application filed by the
petitioner for amendment of the plaint, as that would
result in a de novo trial of the entire suit.
Consequently, this petition lacks merits and is
dismissed. However, it is open for the petitioner to raise
this as a ground in the event of the Appellate Court
dismissing the appeal filed by him.
Sd/-
JUDGE
LG
