Karnataka High Court

Sri. Lokesh K vs Sri Narayanappa on 5 March, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                             NC: 2024:KHC:9131
                                                           WP No. 5268 of 2024




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 5TH DAY OF MARCH, 2024

                                              BEFORE
                             THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                               WRIT PETITION NO. 5268 OF 2024 (GM-CPC)
                      BETWEEN:

                      1.   SRI. LOKESH K
                           S/O KAIYAPPA
                           AGED ABOUT 36 YEARS,
                           RESIDING AT NO.73
                           I MAIN, 8TH CROSS,
                           NEAR SHIVA TEMPLE
                           MARTHAHALLI COLONY,
                           KUNDALAHALLI
                           BENGALURU-560 037.

                      2.   SMT NARASAMMA
                           D/O KAIYAPPA
                           W/O PRAKASH
                           AGED ABOUT 36 YEARS,
                           NO.155, 4TH CROSS,
                           SHARADANAGAR DRIVING SCHOOL,
                           KUNDALAHALLI COLONY
                           DODDANEKKUNDI,
Digitally signed by
VANDANA S                  BENGALURU NORTH,
Location: High             BENGALURU-560 037.
Court of Karnataka

                      3.   SMT KALAVATHI
                           D/O KAIYAPPA
                           AGED ABOUT 27 YEARS,
                           R/O DODDAKUMBARAHALLI
                           IBASAPURA, BAGALURU PURA
                           BENGALURU-562 129.
                                                                ...PETITIONERS
                      (BY SRI. RAJENDRA K.R.,ADVOCATE)
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                                       WP No. 5268 of 2024




AND:

1.   SRI NARAYANAPPA
     S/O LATE SANJEEVAPPA
     AGED ABOUT 64 YEARS,
     R/O KUNDALAHALLI VILLAGE,
     DODDANAKUNDI POST
     K R PURAM HOBLI
     BENGALURU-560 036.

     SRI GULLAPPA
     SINCE DECEASED BY LRS

2.   SMT SHAKUNTALA
     W/O SRINIVASAN
     AGED ABOUT 42 YEARS
     RESIDING AT KADUGODI PLANTATION
     5TH CROSS,
     NEAR GANGAMMA TEMPLE
     DINNUR BENGALURU-560 036.

3.   SRI SHANKAR
     S/O LATE GULLAPPA
     AGED ABOUT 39 YEARS,
     PILLA REDDY NAGAR,
     OMBR LAYOUT,
     DODDABANASWADI POST
     BENGALURU-560 036.

     CHIKKAMUNIAPPA
     S/O SANJEEVAPPA
     SINCE DECEASED BY LRS

4.   RATHNAMMA
     W/O LATE CHIKKAMUNIYAPPA
     AGED ABOUT 63 YEARS,
     R/AT B CHANNASANDRA,
     DODDABANASWADI
     BENGALURU-560 043.

5.   RAJAPPA
     AGED ABOUT 42 YEARS,
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                                        WP No. 5268 of 2024




6.   SHANTHAMMA
     AGED ABOUT 37 YEARS,

7.   GOWRAMMA
     AGED ABOUT 37 YEARS,

     4 TO 7 ARE R/AT B CHANNASANDRA,
     DODDABANASWADI
     BENGALURU-560 043.

     SRI DODDA MUNIYAPPA
     S/O LATE SANJEEVAPPA
     AGED ABOUT 72 YEARS
     SINCE DECEASED BY HIS LRS

8.   SMT VENKATAMMA
     W/O LATE MUNIYAPPA
     AGED ABOUT 67 YEARS,

     CHIKKAYAPPA
     S/O LATE SANJEEVAPPA
     SINCE DECEASED BY HIS LRS

9.   SMT CHINNABIDDA
     W/OLATE CHIKKAYAPPA
     AGED ABOUT 65 YEARS,

     1, 8 & 9 ALL R/O KUNDALAHALLI VILLAGE,
     DODDANAKUNDI POST
     K R PURAM HOBLI
     BENGALURU-560 036.
                                               ...RESPONDENTS
(BY SRI.C.S.NAGENDRA.,ADVOCATE)
      THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
23/01/2024 ON IA NO. 1/2024 IN FDP NO. 25015/2017 ON THE FILE
OF CH -29 XXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, AT
BENGALURU A COPY OF WHICH IS PRODUCED AT ANNEXURE-K
AND CONSEQUENTLY ALLOW IA NO. 1/2024 AS PRAYED FOR
THEREIN.

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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                                              WP No. 5268 of 2024




                             ORDER

This petition by the respondents 32, 33 & 34 (the LRs of

defendant No.10) in FDP No.25015/2017 on the file of the XXVIII

Addl. City Civil Judge, Mayo Hall Unit, Bangalore is directed

against the impugned order dated 23.01.2024 whereby the

application I.A.No.1/2024 filed by the respondents 32, 33 & 34 (the

LRs of defendant No.10) under Order 6 Rule 17, CPC seeking

permission to amend the statement of objections (written

statement) was rejected by the Trial Court.

2. Heard learned counsel for the petitioners and learned

counsel for the respondents and perused the material on record.

3. A perusal of the material on record will indicate that the

respondents herein instituted the suit in O.S.No.15341/2009 before

the Trial Court seeking partition and separate possession of their

alleged share in the suit schedule immovable properties. The said

suit was dismissed by the Trial Court vide judgment and decree

dated 08.08.2012. Aggrieved by the same, the respondents-

plaintiffs, preferred an appeal in RFA No.1420/2012 which was

allowed by this Court vide judgment and decree dated 10.03.2016.

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Aggrieved by the same, the petitioner herein and other defendants

approached the Apex Court in SLP.No.3766/2016 which was

dismissed vide order dated 30.06.2016. The respondents-plaintiffs

instituted the final decree proceedings in FDP No.25015/2017 to

enforce and implement the said preliminary decree passed by this

Court which was confirmed by the Apex Court. The petitioners

herein filed their statement of objections to the said Final Decree

Petition. During the pendency of the Final Decree Proceedings,

the petitioners herein filed the instant application I.A.No.1/24

seeking amendment of their statement of objections (written

statement). The said application having been opposed by the

respondents-plaintiffs, the Trial Court proceeded to pass the

impugned order rejecting the application on the ground that the

petitioners are unnecessarily protracting the matter since the

preliminary decree had attained finality by the judgment of the Apex

Court in SLP.No.3766/2016 referred to supra. Aggrieved by the

impugned order passed by the Trial Court rejecting the I.A.No.1/24

in FDP No.25015/2017, the petitioners are before this Court by way

of the present petition.

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4. In addition to reiterating the various contentions urged in

the memorandum of petition and referring to the material on record,

learned counsel for the petitioners invited my attention to the order

dated 16.08.2019 passed by this Court in review petition (RP

No.241/2019) in order to contend that in the light of the liberty

reserved in favour of the petitioners by this Court, petitioners were

entitled to file the instant application seeking amendment to their

statement of objections (written statement). It is also submitted

that the proposed amendment does not in any way change or alter

the nature or character of the proceedings and no prejudice to be

caused to the respondents-plaintiffs if the amendment was allowed.

It is therefore submitted that the impugned order passed by the

Trial Court deserves to be set aside.

5. Per contra learned counsel for the respondents-plaintiffs

submits that the preliminary decree passed by this Court in RFA

No.1420/2012 dated 10.03.2016 had attained finality having been

confirmed by the Apex Court in SLP.No.3766/2016 dated

30.06.2016. In this context it is submitted that having suffered the

aforesaid preliminary decree, it is not open for the petitioners to

seek amendment by incorporating events and facts prior to

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institution of the suit itself and as such, there is no merit in the

application seeking amendment by the petitioners which was rightly

rejected by the Trial Court.

6. Learned counsel for the respondents also submitted that

the Review Petition was dismissed as withdrawn and merely

because liberty was granted in favour of the petitioners to file

application claiming their right, the said liberty cannot be

misconstrued by the petitioners seeking to amend the statement of

objections. It is therefore submitted that there is no merit in the

petition and the same is liable to be dismissed.

7. I have given my anxious consideration to the rival

submission and perused the material on record.

8. A perusal of the preliminary decree passed by this Court

in RFA No.1420/2012 to which the petitioners are parties will

indicate that this Court has declared that the plaintiffs are entitled to

half share in the suit schedule properties and the said preliminary

decree is sought to be enforced and implemented in the final

decree proceedings. By way of proposed amendment, the

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petitioners seek to introduce facts in relation to events that had

transpired prior to institution of the suit, and earlier the preliminary

decree and consequently in the light of the preliminary decree

passed in RFA No.1420/2012, the question of permitting the

petitioners to amend the written statement/statement of objections

and plead events, facts and details prior to institution of the suit in

the year 2000 is clearly impermissible in law.

9. A conjoint reading of the judgment and decree passed by

this Court in RFA No.1420/2012 arising out of a suit in

O.S.No.15341/2000 and the proposed amendment will clearly

indicate that what is sought to be incorporated are facts, events

and details that are alleged to have occurred prior to institution of

the suit which is clearly impermissible in Final decree proceedings,

especially in the absence of supervening/intervening circumstances

that occurred subsequent to passing of the preliminary decree.

Under these circumstances, I am of the view that the Trial Court

was fully justified in rejecting the application filed by the petitioners.

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10. Insofar as the liberty that is said to have been granted by

this Court in RP 241/2016 dated 16.08.2019 is concerned, the said

order passed by this Court is as under:

"There is a delay of 1188 days in filing the present review petition. This review petition is filed praying to review the judgment and decree passed by this Court on 10.03.2016 in RFA No.1420/2012 mainly on the ground hat the original plaintiff who filed the suit for partition has not impleaded the present review petitioners as party. The Trial Court dismissed the suit. This Court allowed the appeal and decreed the suit.

2. After arguing the matter at length, Sri.H.L.V.Venkatesh, learned counsel for the petitioners filed a memo to withdraw the review petition with liberty to the review petitioners to file an application in the pending Final Decree Proceedings claiming their right, if any.