Karnataka High Court
Shri Ashok S/O Shivappa Shivanamari vs Smt Kalavva D/O Shivappa Shivanamari on 4 November, 2024
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NC: 2024:KHC-D:16075
WP No. 105267 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.105267 OF 2024 (GM-CPC)
BETWEEN:
SHRI ASHOK S/O. SHIVAPPA SHIVANAMARI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI VILLAGE - 591 227,
TQ: GOKAK, DIST: BELAGAVI.
THROUGH HIS POWER OF ATTORNEY HOLDER
SANTOSH S/O. ASHOK SHIVANAMARI,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI VILLAGE - 591 227,
TQ: GOKAK, DIST: BELAGAVI.
...PETITIONER
(BY SMT. POORNIMA ARALIMARAD, ADVOCATE FOR
SRI G. B. NAIK AND SMT. P. G. NAIK, ADVOCATES)
AND:
1. SMT. KALAVVA D/O. SHIVAPPA SHIVANAMARI,
Digitally signed
AGE: 52 YEARS, OCC: AGRICULTURE,
by SAROJA
HANGARAKI
R/O: KOUJALAGI VILLAGE - 591 227,
Location: High TQ: GOKAK, DIST: BELAGAVI.
Court of
Karnataka
2. SHRI DUNDAPPA S/O. SHIVAPPA SHIVANAMARI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: KOUJALAGI VILLAGE - 591 227,
TQ: GOKAK, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI VEERESH S. SAJJAN, ADVOCATE FOR
SRI DINESH M. KULKARNI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT IN THE
NATURE OF CERTIORARI TO SET ASIDE THE IMPUGNED ORDER
DATED 3-8-2024 PASSED ON IA NO.XVII U/ORDER 6 RULE 17 R/W
SECTION 151 CPC IN OS NO.24/2019 BY THE PRINCIPAL SENIOR
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NC: 2024:KHC-D:16075
WP No. 105267 of 2024
CIVIL JUDGE, GOKAK AT ANNEXURE-H AND DISMISS THE IA NO.XVII
AT ANNEXURE-F BY ALLOWING THIS WRIT AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present writ petition is filed by the 1st defendant
challenging the order dated 03.08.2024, passed on I.A
No.XVII under Order VI Rule 17 R/w Section 151 of the
Code of Civil Procedure1 in O.S No.24/2019 by the
Principal Senior Civil Judge, Gokak2, whereunder, I.A
No.17 filed by the 1st respondent/plaintiff has been
allowed by the Trial Court.
2. The relevant facts leading to the present writ
petition are that the plaintiff instituted a suit in O.S
No.24/2019 for partition. The suit was decreed with costs,
vide judgment and decree dated 10.04.2023, granting
1/3rd share to the plaintiff. Being aggrieved, the petitioner
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'Trial Court'
NC: 2024:KHC-D:16075
who was arrayed as 1st defendant preferred R.A
No.8013/2023 before the Court of XII Additional District
Judge, Belagavi3. The First Appellate Court, vide order
dated 13.10.2023, allowed the said appeal, set aside the
judgment and decree passed by the Trial Court, and
remanded the matter to the Trial Court with a direction to
frame the additional issue as to non inclusion of all
properties and parties to afford an opportunity of adducing
additional evidence to both sides and dispose of the suit.
3. Consequent to the remand, the plaintiff filed I.A
No.XVII under Order VI Rule 17 R/w 151 of the CPC to
amend the plaint seeking to insert paragraph Nos.4a to 4d
in the plaint. The said application was objected to by the
1st defendant. The Trial Court, by its order dated
03.08.2024, allowed the said application. Being aggrieved,
the present writ petition is filed.
4. Learned counsel for the petitioner assailing the
order of the Trial Court vehemently contends that vide the
Hereinafter referred to as the 'First Appellate Court'
NC: 2024:KHC-D:16075
application for amendment, mere explanations have been
set out to the reason for non inclusion of other properties.
It is further contended that the Trial Court has erroneously
allowed the application which is contrary to the order of
remand and hence, the said order is erroneous and liable
to be interfered with by this Court.
5. Per contra, learned counsel for the 1st
respondent/plaintiff justifies the order passed by the Trial
Court and seeks for dismissal of the writ petition.
6. It is forthcoming that the First Appellate Court
while allowing R.A No.8013/2023, vide the order dated
13.10.2023, has directed the Trial Court to frame an
additional issue as to non inclusion of all properties and
parties as also, to afford an opportunity of adducing
additional evidence to both side parties. The Trial Court,
consequent to the remand, framed additional issue on
20.11.2023. Thereafter, I.A No.17 has been filed by the
plaintiff.
7. Since, the very question before the Trial Court
in terms of the order of remand made by the First
NC: 2024:KHC-D:16075
Appellate Court was with regard to the non inclusion of all
properties and parties to the suit, the amendment made
by the plaintiff to the plaint has specifically addresses the
said aspect of the matter and the said amendment is just
and necessary to enable the Trial Court to adjudicate upon
the issue that arises for consideration.
8. The Trial Court has appreciated the relevant
aspects of the matter and has rightly allowed the
application.
9. The petitioner has failed in demonstrating that
the order passed by the Trial Court is in any manner
erroneous and liable to be interfered with by this Court.
10. Hence, the present writ petition is dismissed as
being devoid of merit.
Sd/-
(C.M. POONACHA)
JUDGE
PMP
CT-ASC
