Karnataka High Court
Parwati W/O Babu Naik vs Smt. Charlot Veigas on 19 November, 2024
-1-
NC: 2024:KHC-D:16804
WP No. 106760 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.106760 OF 2024 (GM-CPC)
BETWEEN:
SMT. PARWATI W/O. BABU NAIK,
AGE: 79 YEARS,
OCC: HOUSEHOLD WORK,
R/O: PLOT NO.412, RAMNAGAR,
TQ: JOIDA, DIST: UTTAR KANNADA.
...PETITIONER
(BY SRI VIJAYKUMAR B. HORATTI, ADVOCATE)
AND:
1. SMT. CHARLOT VEIGAS,
AGE: 58 YEARS,,
R/O: APNA BAZAR MADGAO, GOA,
BY HER G.P.A. HOLDER,
MISS PRIYANKA PRATAP
SIRDESAI @ TRUDY,
AGED ABOUT 65 YEARS,
Digitally signed
R/O: MADGOA, GOA.
by SAROJA
HANGARAKI
Location: High SRI MARUTI S/O. DHANU GAVADA
Court of
Karnataka SINCE DECEASED BY HIS LRS.,
2. SMT GEETA W/O. MARUTI GAVADA.
AGE: 55 YEARS, OCC: HOUSEWIFE,
R/O: RAMNAGAR, TQ: JOIDA.
3. SMT. SANJYOTI MARUTI GAVADA.
AGE: 41 YEARS, OCC: HOUSEWIFE,
R/O: RAMNAGAR, TQ: JOIDA.
4. SRI DEEPAK MARUTI GAVADA.
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: RAMNAGAR, TQ: JOIDA,
-2-
NC: 2024:KHC-D:16804
WP No. 106760 of 2024
SRI SUBRAO S/O DHANU GAVADA,
SINCE DECEASED BY HIS LR'S.
5. SMT. SUBHADRA
W/O. SUBRAO GAVADA,
AGE: 51 YEARS, OCC: HOUSEWIFE,
R/O: RAMANAGAR, TQ: JOIDA.
6. SMT. SANTOSH
S/O. SUBRAO GAVADA,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: RAMNAGAR, TQ: JOIDA.
7. VIDYA D/O. SUBRAO GAVADA,
AGE: 36 YEARS,
R/O: RAMNAGAR, TQ: JOIDA.
8. NARAYAN CHANDRAKANT NAIK,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: VASTU SHANTI BUILDING,
MAHALASA ROAD,
KAJUBAG, KARWAR, TQ: KARWAR
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE WRIT IN THE
NATURE OF CERTIORARI BY QUASHING THE ORDER ON I.A NO.11
DATED 30-09-2024 IN O.S NO. 65/2009 PENDING ON THE FILE OF
CIVIL JUDGE AND JMFC DANDELI PRODUCED VIDE ANNEXURE-H
AND CONSEQUENTLY TO ALLOW THE SAME 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
-3-
NC: 2024:KHC-D:16804
WP No. 106760 of 2024
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present writ petition is filed calling in question the
order dated 30.09.2024 passed on I.A No.11 filed under
Order VI Rule 17 of the Code of Civil Procedure, 19081 in
O.S No.65/2009 by the Civil Judge and JMFC, Dandeli2.
2. The relevant facts in a nutshell leading to the
present writ petition are that the 1st respondent/plaintiff
instituted a suit in O.S No.65/2009 for a declaration, that
the Sale Deed dated 07.02.2006 pertaining to the suit
property is null and void and not binding on the plaintiff
and that the Gift Deed dated 09.02.2015 executed by the
3rd defendant in favour of the 4th defendant is null and void
and other reliefs. The said suit was contested by the
defendants and the 3rd defendant filed written statement
on 17.11.2020. Subsequently, the 3rd defendant filed I.A
No.11 under Order VI Rule 17 of the CPC to amend the
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'Trial Court'
NC: 2024:KHC-D:16804
written statement. The said application was opposed by
the plaintiff. The Trial Court, by its order dated
30.09.2024, dismissed the application with cost of ₹500/-.
Being aggrieved, the present writ petition is filed by the 3rd
defendant.
3. Heard submissions of learned counsel
Sri.Vijaykumar.B.Horatti for the petitioner and perused the
writ petition papers.
4. It is forthcoming that the Trial Court while
considering I.A No.11 has recorded the following findings:
"7. So from the above principles of law,
generally amendment should not be allowed after
the commencement of trial. Admittedly, in the
present suit the stage is for further cross
examination of PW.1. Moreover, the suit is a
remanded matter and is of the year 2009.
8. Moreover, in the proposed amendment,
defendant Nos.3 and 4 have merely denied the fact
that, there was a non alienation period. Hence,
such transactions are not permissible. The
defendant No.3 has already specifically denied the
contentions of plaint at the stage of filing of written
statement.
NC: 2024:KHC-D:16804
9. Further, the defendant No.3 and 4 are
trying to bring the new facts to the case that he is
in the possession of suit property from the date of
it's purchase. That defendant No.1 and 2 sold the
property to defendant No.3 to meet out her family
necessity. From perusal of this said aspect, it is
crystal clear that the defendant No.3 and 4 are
bringing in the material clear that the defendant
No.3 and 4 are bringing in the material facts to the
case which he had not asserted at the time filing of
the written statement. The cardinal principle is that
one cannot bring new set of facts to the case by
way of amendment.
10. Further more, in the end of proposed
amendment the defendant No.3 is trying to give
explanations to the sale deed. It is settled principle
of law that pleadings shall contain and contain only
a statement in concise form of material facts. But
not the evidence by which they are proved. As
such, those facts are also not material to be
included in written statement. And that nowhere in
the reasons stated in affidavit annexed to the
application, the defendant No.3 has shown as to
the due care taken to bring in the said aspect at an
earlier stage.
11. On face it seems like the proposed
amendment is an attempt to fill in the lacunas
after partial cross examination of PW.1. And it is
NC: 2024:KHC-D:16804
settled principle of law that, defendant cannot be
allowed to amend the pleadings to fill up the
lacunae."
5. It is further forthcoming from the objections
filed by the plaintiff to I.A No.11 before the Trial Court that
the suit in O.S No.65/2009 was decreed on 16.08.2013,
and that the plaintiff had filed Execution Petition
No.8/2013, and when the executing Court has appointed a
Court Commissioner and the Court Commissioner has
executed a registered Sale Deed in favour of the plaintiff,
vide registered Sale Deed dated 29.09.2016, the
defendant Nos.3 and 4 preferred R.A No.65/2016
(renumbered as R.A No.83/2017) with a delay of 1155
days. The Civil Judge Senior Division was pleased to allow
the appeal and remand the matter to the Trial Court for
fresh trial, consequent to which, the 3rd defendant has
filed written statement on 18.11.2020 and the 4th
defendant has adopted the written statement filed by the
3rd defendant on 02.03.2021. It was further placed on
record by the plaintiff that being aggrieved by the
NC: 2024:KHC-D:16804
judgment and decree passed in O.S No.64/2009, the 3rd
defendant had filed R.A No.5/2020 with a delay of 2565
days which was pending.
6. It is clear and forthcoming from the
aforementioned that the suit was originally decreed on
16.08.2013, consequent to which, in order to afford the 3rd
defendant an opportunity to contest suit, the said decree
was set aside and the matter remanded to the Trial Court
and consequent to the remand, the 3rd defendant filed
written statement on 17.11.2020.
7. Although it is the vehement contention of the
learned counsel for the petitioner that the proposed
amendments are necessary to adjudicate upon the
questions that arise for consideration in the suit, it is
relevant to note that in the affidavit accompanying I.A
No.11, the 3rd defendant has not stated as to the reason
the proposed amendments were not stated in the written
statement. Further, it is not the case of the 3rd defendant
that the averments made in the proposed amendment
NC: 2024:KHC-D:16804
were not within the knowledge of the 3rd defendant at the
time of filing the written statement.
8. The Trial Court noticing the said fact situation
has recorded a finding that new facts are sought to be
brought on record by way of amendment. It is further
recorded by the Trial Court that the 3rd defendant has not
shown due care to bring on record the averments sought
to be made vide the proposed amendment at an earlier
stage itself and that the proposed amendment is an
attempt to fill the lacunae after partial cross examination
of PW.1.
9. It is further forthcoming that the plaintiff was
examined on 13.10.2023 and the defendant has cross
examined the plaintiff in part on 13.05.2024 and further
cross examined on 11.07.2024. The I.A No.11 has been
filed subsequent to PW.1 having been partially cross
examined.
10. It is clear and forthcoming from the
aforementioned that the sufficient material on record to
indicate that I.A No.11 has been filed with oblique and
NC: 2024:KHC-D:16804
malafide motives. The plaintiff has not made out any
ground to interfere with the order passed by the Trial
Court.
11. In view of the fact as noticed above that I.A
No.11 is filed with oblique and malafide motives, the order
passed by the Trial Court is affirmed and the cost imposed
by the Trial Court while dismissing I.A No.11 vide the
impugned order dated 30.09.2024 is enhanced to
₹10,000/- which the 3rd defendant shall be liable to pay
the plaintiff. In the event, the cost of ₹10,000/- is not paid
by defendant No.3 as ordered above, it shall be open for
the plaintiff to seek for the defence of the 3rd defendant to
be struck off.
12. With the aforementioned, the writ petition is
disposed of.
Sd/-
(C.M. POONACHA)
JUDGE
PMP/CT-ASC
