Karnataka High Court
Ningappan S/O Mallappa Kannoli vs Yamanappa S/O Mallappa Kannolli on 7 March, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:4957
WP No. 104909 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO.104909 OF 2022 (GM-CPC)
BETWEEN:
NINGAPPA S/O. MALLAPPA KANNOLI,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. MUGALKHOD, TAL: MUDHOL.
...PETITIONER
(BY SRI KRISHNAKUMAR JOSHI, ADVOCATE FOR
SRI SANGRAM S. KULKARNI, ADVOCATE)
AND:
1. YAMANAPPA S/O. MALLAPPA KANNOLLI,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. MUGALKHOD, TAL: MUDHOL.
2. AMMANNA S/O. MALLAPPA KANNOLLI,
AGE: 63 YEARS, OCC: AGRICULTURE,
CHANDRASHEKAR
R/O. MUGALKHOD, TAL: MUDHOL.
LAXMAN
KATTIMANI
3. SMT. TAYAWWA W/O. SHIVAPPA MUDENNAVAR,
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI
Location: HIGH COURT
AGE: 61 YEARS, OCC: AGRICULTURE,
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.13
R/O. MUGALKHOD, TAL: MUDHOL.
14:52:27 +0530
4. SMT. NEELAWWA W/O. PANDAPPA VADEYAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. MUGALKHOD, TAL: MUDHOL.
5. MALLAPPA S/O. AMMANNA KANNOLLI,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O. MUGALKHOD, TAL: MUDHOL.
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NC: 2024:KHC-D:4957
WP No. 104909 of 2022
6. GURAPPA S/O. HANAMANT SUTAGUNDI
@ HANAMASAGAR, AGE: 35 YEARS,
OCC: AGRICULTURE, R/O. MUGALKHOD,
TAL: MUDHOL.
...RESPONDENTS
(BY SRI GIRISH YADWAD, ADV. FOR R1 TO R5;
NOTICE TO R6 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI AND QUASH THE IMPUGNED ORDER DATED 11/07/2022
PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND JMFC, MUDHOL
VIDE ANNEXURE-J IN O.S.68/2014 ON I.A NO.V, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS PETITION IS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This writ petition is filed seeking for following
reliefs.
i) issue a writ of certiorari and quash the
impugned order dated 11.07.2022 passed by
the Addl. Sr.Civil Judge and JMFC, Mudhol vide
Annexure-J in O.S.No.68/2014 on I.A.No.V.
ii) issue any other order or direction to which the
petitioner is found entitled to in the present
facts and circumstances.
2. Sri Krishnakumar Joshi, learned counsel
appearing for Sri Sangram S.Kulkarni, learned counsel for
petitioner submitted that petitioner was plaintiff in
NC: 2024:KHC-D:4957
O.S.no.68/2014, filed for partition and separate
possession, while respondents herein were defendants. It
was submitted, in said suit, defendants no.1 to 5 had filed
counter claim seeking for partition and separate
possession of their share in suit schedule properties. It
was submitted that subsequently, plaintiff filed a memo on
05.04.2017 stating that plaintiff was not interested in
prosecuting suit. In view of memo, suit was dismissed as
not pressed. However, counter claim was decreed on
27.07.2017. Said decree was challenged by original
plaintiff in R.A.no.16/2018. Said appeal was allowed on
07.11.2019 and matter was remitted back to Trial Court
for fresh disposal by giving opportunity to plaintiff and
defendant no.6. Order passed in R.A.no.16/2018 was
questioned by defendants before this Court in MSA
no.100002/2020, which however came to be dismissed on
15.09.2021. Thereafter I.A.no.5 was filed by defendant
no.3 seeking for permission to file additional written
statement. It was submitted that though petitioner
opposed said application by filing objections as per
NC: 2024:KHC-D:4957
Annexure-H, under impugned order Trial Court allowed
application. It was submitted that only reason assigned is
that application was filed in terms of observations of this
Court in MSA no.100002/2020 and R.A.no.16/2018, which
would not be tenable and therefore, sought for quashing of
order.
3. It was submitted that at time of passing
preliminary decree on counter claim, there was no plea
about any part of suit schedule properties being self
acquired properties. It was submitted that same would be
an admission on part of defendants. It was submitted that
in guise of filing additional written statement, defendant
no.3 had sought to change nature of counter claim by
stating that some of suit properties were self acquired
properties. It was submitted that said attempt would
amount to withdrawal of admission, which would gravely
prejudice plaintiff and also change nature of counter claim,
which was contrary to decision of Hon'ble Supreme Court
NC: 2024:KHC-D:4957
in case of Heeralal vs Kalyan Mal & Ors reported in
1998 (1) SCC 278.
4. On other hand, Sri Girish Yadwad, learned
counsel for respondents no.1 to 5/defendants sought to
oppose writ petition. It was submitted that Appellate Court
in R.A.no.16/2018 had observed that without amendment
of pleading for excluding properties judgment and decree
passed by trial Court on counter claim was not justified. It
was further submitted that even this Court in MSA
no.100002/2020 had observed that without amendment of
pleadings, exclusion of properties from counter claim for
partition and separate possession was not justified. It was
submitted that said order not having been questioned and
defendant no.3 having only sought for filing additional
written statement and not for amendment of written
statement, plaintiff would not be subjected to prejudice.
5. It was submitted that since there was no
withdrawal of pleading and contention taken in additional
written statement would in any case cast burden upon
NC: 2024:KHC-D:4957
defendant no.3 to establish that certain items of suit
schedule properties were self acquired properties, present
petition was hyper-technical and sought for dismissal. It
was submitted, impugned order though may be lacking in
wordings but, not in spirit and would be justified in view of
ratio laid down by Hon'ble Supreme Court in case of Life
Insurance Corporation of India Vs Sanjeev Builders
Private Limited and Another reported in 2022 SCC
OnLine SC 1128.
6. Heard learned counsel for parties and perused
writ petition records.
7. From above, it is seen that petitioner is
challenging order passed on application permitting
defendant no.3 to file additional written statement. By
grant of such permission, though defendant no.3 is
permitted to plead that certain portions of suit properties
were self acquired properties and could not be subjected
to partition, same would contradict their assertion in
written statement, filed earlier. But there is no withdrawal
NC: 2024:KHC-D:4957
of any admission. Burden would also lie on defendant no.3
to substantiate that pleading in written statement filed
earlier was either due to mistake of fact or due to
inadvertence etc. Apart from establishing nature of
properties as self acquired properties.
8. At such stage, petitioner-plaintiff would be
entitled to rely on assertion in written statement. Hon'ble
Supreme Court in case of LIC (supra) has stated that
applications for amendment, which bring out true dispute
between parties can be allowed and only those, which
seek to withdraw earlier admissions and cause prejudice to
parties should be shunned.
9. Impugned order does not appear to be falling
in prohibited category. Thus, writ petition is dismissed
reserving liberty to plaintiff to take up contention as per
observations above.
Sd/-
JUDGE
AM
