Karnataka High Court
Smt. Annusuya W/O Rama Maruche vs Parwati W/O Basawant Maruche on 11 November, 2024
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WP No. 108536 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.108536 OF 2017 (GM-CPC)
BETWEEN:
1. SMT. ANNUSUYA W/O. RAMA MARUCHE,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: KALLEHOL VILLAGE, TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
2. MAKARAND S/O. RAMA MARUCHE,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: KALLEHOL VILLAGE, TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
3. SHRI KALAMESHWAR S/O. RAMA MARUCHE,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KALLEHOL VILLAGE, TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
...PETITIONERS
(BY SRI ROSHAN CHABBI, ADVOCATE FOR
Digitally signed
SRI SHIVARAJ S. BALLOLI, ADVOCATE)
by SAROJA
HANGARAKI
Location: High
Court of
AND:
Karnataka
1. PARWATI W/O. BASAWANT MARUCHE,
AGE: MAJOR, OCC: H/W,
R/O: KALLEHOL, TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
2. SMT. LEELA W/O. SHIVAJI MARUCHE,
AGE: 67 YEARS, OCC: H/W,
R/O: 4TH CROSS, AZAMNAGAR,
KANGRALI ROAD,
DIST: BELAGAVI - 590 001.
3. AMBIKA D/O. SHIVAJI MARUCHE,
AGE: 47 YEARS, OCC: H/W,
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R/O: 4TH CROSS, AZAMNAGAR
KANGRALI ROAD,
DIST: BELAGAVI - 590 001.
4. ARUN W/O. SHIVAJI MARUCHE,
AGE: 44 YEARS, OCC: H/W,
R/O: 4TH CROSS, AZAMNAGAR
KANGRALI ROAD,
DIST: BELAGAVI - 590 001.
5. ANUJA D/O. SHIVAJI MARUCHE,
AGE: 39 YEARS, OCC: H/W,
R/O: 4TH CROSS, AZAMNAGAR
KANGRALI ROAD,
DIST: BELAGAVI - 590 001.
6. SHRI APPAJI S/O. BASAWANT MARUCHE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KALLEHOL,
TAL: AND DIST: BELAGAVI.
7. SHRI DONGRE S/O. BASAWANT MARUCHE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KALLEHOL,
TAL: AND DIST: BELAGAVI - 590 001.
8. SHRI BHARMANNA S/O BASAWANT MARUCHE
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KALLEHOL,
TAL: AND DIST: BELAGAVI - 590 001.
9. LAXMI S/O. WAMAN SAMBREKAR,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KALLEHOL,
TAL: AND DIST: BELAGAVI - 590 001.
10. MANOHAR S/O. TAMMANNA GINDE,
AGE: 77 YEARS, OCC: AGRICULTURE,
R/O: NETAJI GALLI, YALLUR,
TAL AND DIST: BELAGAVI.
11. SHRI UMESH S/O. MANOHAR GINDE,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: NETAJI GALLI, YALLUR,
TAL AND DIST: BELAGAVI - 590 001.
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12. VIJAYA D/O MANOHAR GINDE
AGE: 37 YEARS, OCC: H/W,
R/O: NETAJI GALLI, YALLUR,
TAL AND DIST: BELAGAVI.
13. VIDYA D/O. MANOHAR GINDE,
AGE: 34 YEARS, OCC: H/W,
R/O: NETAJI GALLI, YALLUR,
TAL AND DIST: BELAGAVI.
14. CHANGU S/O MANOHAR GINDE,
AGE: 29 YEARS, OCC: H/W,
R/O: NETAJI GALLI, YALLUR,
TAL AND DIST: BELAGAVI.
15. KAMALA S/O. LAXMAN MANDOLKAR,
AGE: MAJOR, OCC: H/W,
R/O: MENSE GALLI, BELAGAVI,
TAL AND DIST: BELAGAVI.
16. GANGU W/O. YALLAPPA MARUCHE
AGE: MAJOR, OCC: AGRICULTURE,
R/O: VITTAL GALLI, KALLEHOL,
TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
17. SHRI GANAPATI S/O. YALLAPPA MARUCHE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: VITTAL GALLI, KALLEHOL,
TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
18. SHRI BHAVAKU S/O. YALLAPPA MARUCHE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: VITTAL GALLI, KALLEHOL,
TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
19. SHRI YALLU S/O. NARAYAN PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: HANGARGA,
TQ AND DIST: BELAGAVI.
20. LAXMI W/O. YALLAPPA MARUCHE,
AGE: MAJOR, OCC: H/W,
R/O: KALLEHOL, TAL: BELAGAVI,
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DIST: BELAGAVI - 590 001.
21. SHRI SOMMANNA S/O. LAXMAN MARUCHE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KALLEHOL, TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
22. SMT. UMABAI W/O. KALLAPPA KAGUTKAR,
AGE: MAJOR, OCC: H/W,
R/O: SONOLLI, TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
23. YASHODA MARUTI KAKATIKAR,
AGE: MAJOR, OCC: H/W,
R/O: SUNDI, TAL: CHANDGAD,
DIST: KOLHAPUR.
24. SMT. AAVALE MAHADEV MENSE,
AGE: MAJOR, OCC: H/W,
R/O: UCHAGAON, TAL: BELAGAVI,
DIST: BELAGAVI - 590 001.
...RESPONDENTS
(BY SRI SANTOSH B. MANE, ADVOCATE FOR R6 TO R8;
R18, R18 AND R21;
NOTICE ISSUED TO R2, R4, R5, R10 TO R14,
R19, R20, R22 TO R24 ARE SERVED BUT UNREPRESENTED;
V/O DATED 29.08.2024 PETITION AGAINST
R3, R9 AND R15 ARE DISMISSED;
R1 AND R16 ARE ABATED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF CONSTITUTION OF INDIA, PRAYING TO, ISSUE WRIT OF
CERTIORARI AND QUASH THE ORDER DATED 11.07.2017 PASSED
ON I.A.NO.6 & 8 IN FDP NO.22/2008 ON THE FILE OF II ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, BELAGAVI VIDE ANNEXURE-F.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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WP No. 108536 of 2017
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present writ petition is filed seeking for the
following reliefs:
"i) Issue Writ of certiorari and quash the order dated
11.07.2017 passed on I.A.No.6 & 8 in FDP
No.22/2008 on the file of II Additional Senior Civil
Judge and CJM, Belagavi vide Annexure-F to meet
the ends of justice and equity.
ii) Issue any other writ or direction as deemed fit by
this Hon'ble court."
2. The relevant facts leading to the present writ
petition are that the petitioners instituted
O.S.No.111/1995 on the file of the Court of the II
Additional Civil Judge, Sr.Divn. Belgaum1 by one Rama
Laxman Maruche who died during pendency of the suit and
the petitioners have come on record as his legal heirs. The
said suit was one for partition and separate possession.
3. The respondent herein was arrayed as
defendant in the said suit. The said suit was decreed vide
the judgment and decree dated 12.06.2008 where under
Hereinafter referred to as 'the Trial Court'
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the plaintiffs together were held as entitled for 2/15th
share in the suit properties.
4. The petitioners instituted FDP No.22/2008 for
drawing up of final decree in terms of the preliminary
decree passed in the suit. In the said final decree
proceedings, the petitioners filed I.A.No.6 under Order 6
Rule 17 R/w Section 151 of the Code of Civil Procedure2
for amendment to include certain properties. The
petitioners also filed I.A.No.8 under Order 6 Rule 17 of
CPC to amend the application I.A.No.6. The said
applications were opposed by the respondents. The Trial
Court vide its order dated 11.07.2017 dismissed the said
applications with cost. Being aggrieved, the present writ
petition is filed.
5. Heard the submissions of learned counsel for
the petitioners and the learned counsel for the
respondents.
Hereinafter referred to as 'CPC'
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6. It is the vehement contention of the learned
counsel for the petitioners that by oversight certain
properties were not included in the suit and the said
properties were required to included in the final decree
proceedings. He further contends that the Trial Court has
erred as rejecting the applications, which order is liable to
interfered with by this Court.
7. Per contra, the learned counsel for the
respondents justifying the order passed by the Trial Court
submits that the applications filed by the petitioners has
been adequately appreciated by the Trial Court and the
Trial Court recorded a finding that the petitioners have not
produced any documents to demonstrate that the said
properties are family properties and has rightly rejected
the applications filed by the petitioners, which order ought
not to be interfered by this Court in the present writ
petition.
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8. The submissions of both the learned counsel
have been considered and the material on record have
been perused.
9. It is forthcoming that the Trial Court while
considering the I.A.Nos.6 and 8 has held as follows:
"15. In the accompanying affidavit to I.A.No.6,
the Plaintiff No. 1A has stated that, through oversight the
proposed properties have not been Included in the suit as
suit properties, but no explanation was given as to why
the plaintiffs have not Incorporated the said properties
during the pendency of O.S.No. 111/1995 nor during the
initial stage of the present final decree proceeding. The
acts & deeds of the plaintiffs clearly establish that they
are not diligent in prosecuting their case. however they
are intended to drag on the case knowing fully well that
the suit was for the year 1995. It came to be disposed off
in the year 2008 and the final decree proceeding is filed in
the year 2008. Therefore, such type of approach of the
parties has to be restricted by imposing heavy costs.
Moreover, the plaintiffs though sought the proposed
properties to be included in the present final decree
proceeding as suit properties but not produced any single
document to show that they are the Joint family
properties. I have already pointed out that the present
final decree proceeding is initiated based on the
preliminary decree drawn in O.S.No. 111/1995. No
reasons are forth coming to allow I.A.No.6."
(emphasis supplied)
10. It is further relevant to note that along with the
affidavit accompanying I.A.No.6, the petitioners have not
stated as to the reasons for including the properties
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belatedly. It is merely stated that by oversight the
deponent could not instruct his counsel regarding the said
properties to include them during pendency of the suit.
11. It is relevant to note that the respondents have
filed detailed objections placing on record that the
properties have been acquired by them. The Trial Court
has noticed the objections filed by the respondents.
Further the Trial Court has also noticed that the petitioners
have not produced any document to demonstrate that the
properties sought to be included vide I.A.No.6 were joint
family properties. It is further relevant to note that apart
from merely stating that oversight properties have not
been included, the petitioners have not setout as to the
reason for the delay in seeking to include the said
properties.
12. Although it is an undisputed proposition of law
that the properties could be included even in the final
decree proceedings, it is incumbent on the petitioners to
setout the reasons as to why the said properties could not
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be earlier included as also to place adequate material on
record to demonstrate that they are the family properties.
The petitioners have been miserably failed in doing so.
The Trial Court was justified in rejecting the application
filed by the petitioners.
13. The petitioners have failed in demonstrating
that the order passed by the Trial Court is in any manner
erroneous or contrary to any specific material on record.
14. In view of the aforementioned, the above writ
petition is dismissed as being devoid of merit.
SD/-
(C.M. POONACHA)
JUDGE
SSP
CT-ASC
