Karnataka High Court
Smt Savithramma @ Nanjamma vs Sri Ramegowda on 13 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 111 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.111 OF 2018
BETWEEN:
1. SMT. SAVITHRAMMA @ NANJAMMA
W/O LATE NINGEGOWDA,
AGED 80 YEARS,
2. SMT. BHAGYA
D/O LATE NINGEGOWDA,
AGED 57 YEARS,
3. SRI CHANDRASHEKARA
S/O LATE NINGEGOWDA,
AGED 57 YEARS,
Digitally signed
by DEVIKA M
Location: HIGH APPELLANT NO.1 TO 3 ARE
COURT OF R/AT K SHETTIHALLI VILLAGE AND HOBLI,
KARNATAKA
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571807
4. SMT. PARVATHI
W/O SHANKAREGOWDA,
D/O LATE NINGEGOWDA
AGED 55 YEARS
5. SRI RAMACHANDRA
S/O LATE NINGEGOWDA,
AGED 53 YEARS,
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MSA No. 111 of 2018
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APPELLANT NO.4 AND 5 ARE
R/AT NARGONAHALLI VILLAGE, K.R PET TALUK,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT-571807
...APPELLANTS
(BY SRI SATHISH, ADVOCATE FOR A1 TO A4;
SRI K V NARASIMHAN AND K N NITISH, ADVOCATE
FOR A5)
AND:
1. SRI RAMEGOWDA
SINCE DEAD BY HIS LRS
A. SMT. RATHNAMMA
W/O RAMEGOWDA
MAJOR
R/AT SHETTIHALLI VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 438
B. DR. KUMAR
S/O RAMEGOWDA
MAJOR
R/AT NO.204, NEAR VIJAYANAGAR WATER TANK
2ND STAGE VIJAYANAGARA
MYSURU CITY - 570 017
C. SMT. VARALAKSHMI
W/O CHANDRASHEKAR
MAJOR
R/AT ACHAPPA KOPPALU VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 438
D. SMT. KANTHAMANI
W/O Y N CHANDRU
MAJOR
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MSA No. 111 of 2018
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R/AT NO.1946, 5TH CROSS SUBASH NAGARA
MANDYA DISTRICT - 571 401
2. SRI SHIVARAMU
S/O LATE NARASEGOWDA @ KULLEGOWDA,
AGED 72 YEARS,
3. SRI PRABHAKAR
S/O LATE NARASEGOWDA @ KULLEGOWDA,
AGED 72 YEARS,
4. SMT. PADMA
W/O LATE BETTEGOWDA,
AGED 75 YEARS
5. SMT. RATIKALA
D/O LATE BETTEGOWDA,
MAJOR IN AGE,
6. SMT. GOWRAMMA
W/O LATE KRISHNEGOWDA AND
D/O NARASIMHAIAH,
AGED 71 YEARS,
7. SRI CHALUVAIAH
S/O LATE KRISHNEGOWDA,
AGED 53 YEARS,
8. SRI RAVIKUMAR
S/O LATE KRISHNEGOWDA,
AGED 51 YEARS,
9. SRI SWAMY
S/O LATE NARASIMHAIAH,
AGED 78 YEARS,
10. SRI RAMESH, S/O LATE NARASIMHAIAH,
AGED 78 YEARS,
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MSA No. 111 of 2018
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11. SRI SWAMY
AGED 85 YEARS,
S/O LATE CHALUVEGOWDA
12. SMT. UMA JAYASHREE
W/O K SHIVARAMU
MAJOR
13. SRI YOGESH
S/O K SHIVARAMU
MAJOR
RESPONDENTS ARE R/A
K. SHETTIHALLI VILLAGE & HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 807
...RESPONDENTS
(BY SRI PRAMOD R, ADVOCATE FOR R1(A) TO (D)
[ABSENT];
SRI SUMANTH L BHARADWAJ, ADVOCATE FOR R1(B) TO
(D) [ABSENT];
SRI V SRINIVAS, ADVOCATE FOR R3 & R10;
V/O DT.26.08.2022, NOTICE TO R2, R4, R9, R11 D/W;
R5, R6, R7, R8, R12, R13 - SERVED & UNREPRESENTED)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
24.04.2018 PASSED IN R.A.NO.5/2013 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC.,
SRIRANGAPATNA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
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ORAL JUDGMENT
Heard the learned counsel appearing for the
appellants and the learned counsel for respondent Nos.3
and 10.
2. This MSA is filed against the order passed by
the First Appellate Court in R.A.No.5/2023 wherein the
First Appellate Court allowed I.A.No.1 filed by the
appellant/plaintiff under Order VI Rule 17 of CPC and
remitted the matter to the Trial Court with a direction to
permit the plaintiff for amendment in the plaint as sought
in I.A.No.1 and to afford opportunity to defendant Nos.11
to 15 to file the written statement and additional written
statement if any and provide an opportunity to both the
parties to adduce additional evidence.
3. This order is under challenge before this Court.
The counsel for the appellants would vehemently contend
that the First Appellate Court is not justified in entertaining
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an application for amendment of the plaint. The counsel
would vehemently contend that no application is filed
under Order 21 Rule 27 of CPC and also the counsel would
vehemently contend that while remanding the matter, the
Court has to keep in mind Order 41 Rule 23, 23-A and 25
of CPC and only if satisfies, then remand could be made.
The counsel would vehemently contend that filing an
application for permitting the amendment in the regular
appeal that too after lapse of over two decades of lis
between the parties is an erroneous and the First
Appellate Court ought not to have allowed the said
application. The counsel would vehemently contend that
the suit was filed in the year 1992 and the matter was
remanded twice and in both the occasions, the suit filed by
the plaintiff was dismissed and being aggrieved by the
dismissal of the suit, R.A.No.5/2013 is filed. The counsel
would vehemently contend that when Sannamma passed
away, an application was filed under Order I Rule 10(2) of
CPC before the Trial Court and the Trial Court held an
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enquiry and given the definite finding that they are the
legal representatives of Sannamma and continued to
proceed in the matter. When such finding was given
regarding relation between the legal representatives is
concerned, same cannot be agitated once again by filing
an application under Order VI Rule 17 of CPC before the
First Appellate Court and the very approach of the First
Appellate Court is erroneous and the First Appellate Court
ought not to have remanded the matter. The counsel
would vehemently contend that no point for consideration
was considered by the First Appellate Court while
remanding the matter and only entertaining the
application filed under VI Rule 17 of CPC that too without
production of any documents and only on mere say of
pleading in the application for amendment, the same was
allowed hence, the very approach of the First Appellate
Court is erroneous and it requires interference.
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4. The counsel for respondent Nos.3 and 10 who
are the defendants before the Trial Court would
vehemently contend that the order passed by the Trial
Court in O.S.No.129/1992 allowing the application filed
under Order I Rule 10(2) read with Section 151 of CPC is
challenged before this Court by filing the writ petition and
the writ was dismissed affirming the order. However,
made an observation in paragraph 2 that the plea of the
applicants is that the deceased was the adopted son of the
defendant Smt. Sannamma. Whereas the contention of
petitioner is that Ninge Gowda was only a fostered son and
since the law does not recognize the fostered son, his legal
representatives cannot be impleded as defendants. He is
not the legal son of Sannamma. The Trial Court has held
that a prima facie case has been made out that Ninge
Gowda is the adopted son of Sannamma, in view of the
fact that the plaintiff has also not disputed the relationship
between the applicants and the deceased Ninge Gowda.
In the circumstances, the application is allowed. It is also
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further observed in paragraph 3 that I do not find any
error committed by the Trial Court that calls for
interference. Admittedly, the claim is being made which
cannot be finally decided in the said application. It is only
after trial that the status of the legal representative, their
share or otherwise can be decided by the Trial Court and
not at this stage. The applicant having made out a prima
facie case, I do not find any error that calls for
interference.
5. The counsel referring this order would
vehemently contend that this Court in the writ petition, in
paragraph 3 made an observation with regard to the
relationship as well as entitlement for share and matter to
be considered at the time of very suit only. When such
observation is made, the very reasoning given by the First
Appellate Court in allowing the application filed under
Order VI Rule 17 of CPC is correct and not committed any
error and in detail, discussion was made in the appeal
while entertaining the amendment application under Order
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VI Rule 17 of CPC. The counsel would vehemently
contend that the First Appellate Court rightly remanded
the matter giving an opportunity to file additional written
statement to the defendants in view of amendment to the
plaint and hence, it does not require any interference of
this Court.
6. The counsel for the plaintiff who filed the
application under Order VI Rule 17 of CPC before the Trial
Court is not present before this Court. This Court vide
order dated 04.06.2025 made it clear that if the counsel
for respondent No.1(a) to (d) does not appear on the next
date of hearing, the matter will be heard in his absence.
7. In reply to this arguments, the learned counsel
for the appellants brought to notice of this Court to the
detailed order passed by the Trial Court in
O.S.No.129/1992 on IA filed under Order I Rule 10(2)
read with Section 151 of CPC wherein, a discussion was
made that there was a mortgage deed in favour of the
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plaintiff that was executed by Sannamma and also her
adopted son in the year 1982 and document also marked
before the Trial Court at Ex.D1 wherein also a reference
was made in the document dated 26.02.1982 itself that
the Sannamma is the adopted mother of Ningegowda.
Apart from that taken note of documents at Ex.D2 as well
as D6 and having considered all these materials only
conducted an enquiry as contemplated under Order 22
Rule 5 of CPC and comes to the conclusion that defendant
Nos.11 to 15 are the legal representatives of Sannamma.
When such detailed discussion was made, the plaintiff
cannot approbate or reprobate by filing an application
under Order VI Rule 17 of CPC seeking for an amendment
since the plaintiff was unsuccessful before the Trial Court
twice when matter was remanded twice and adopted an
ingenious method to make an application under Order VI
Rule 17 of CPC in the appeal without production of any
documents for amendment.
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8. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for
respondent Nos.3 and 10 and no argument was canvassed
by the plaintiff who filed an application under Order VI
Rule 17 of CPC before the First Appellate Court. This
Court has to look into the order passed by the First
Appellate Court while permitting for amendment to the
plaint. It is not in dispute that the suit was filed in the
year 1992 and it is also not in dispute that earlier suit was
dismissed and subsequently, the appeal was filed and
matter was remanded to the Trial Court. The first remand
was made with regard to frame the additional issues since
the plaintiff pleaded that the property was acquired as well
as set up the defence of adverse possession. It is settled
law that there cannot be claim of ownership as well as
adverse possession. However, the Trial Court, on remand
also considered the matter giving an opportunity and
ultimately having recorded the evidence, dismissed the
suit and the said judgment was also challenged before the
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First Appellate Court in R.A.No.89/2000 and during the
pendency of the proceedings, the said Sannamma passed
away. Hence, an application was filed under Order I Rule
10(2) of CPC claiming that they are the legal
representatives of Sannamma wherein also a dispute was
raised by filing objection that the Ningegowda is not
adopted son of Sannamma. Hence, the First Appellate
Court once again remanded the matter to decide the issue
recording the evidence by holding an enquiry. Accordingly,
the Trial Court once again held the enquiry under Order 22
Rule 5 of CPC as contemplated.
9. Having perused the material on record,
particularly, taking into note of the material on record, in
paragraph 15 of the order allowed on the application filed
under Order I Rule 10(2) of CPC considering the document
at Ex.D1 dated 26.02.1982 wherein the reference was
made that Sannamma had executed the mortgage deed
along with her adopted son Ningegowda and also there
was a recital in the document itself that he was a adopted
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son and said document also came into existence on
26.02.1982 and suit was filed in the year 1992. Apart
from that Ex.D2 and D6 were also taken note of to comes
to a such conclusion that he was adopted son and allowed
the application.
10. It is important to note that the very document
of mortgage is in favour of plaintiff who filed the suit for
the relief of declaration and there is a force in the
contention of the appellants' counsel that the plaintiff
cannot approbate or reprobate to the circumstances.
Apart from that the suit was remanded twice and the
second remand is also to decide the issue of LRs and same
has been considered by passing an order and the said
order has attained its finality and this decision was taken
on 24.08.2011 and suit was dismissed on 30.11.2012.
11. Being aggrieved by the said order, an appeal is
filed. In the appeal, the plaintiff kept quiet when the order
was passed on the application filed under Order I Rule 10
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and same was attained its finality and though a writ
petition was filed in W.P.No.43507/2011, same was
disposed of on 11.06.2012. The counsel for the
respondent also brought to notice of this Court that
admittedly, this Court held that the claim which was made
cannot be finally decided in the said application and same
has to be considered with regard to the representing a
legal representatives and also an observation is made that
after trial, the status of the legal representative, their
share or otherwise can be decided by the Trial Court and
not at this stage. No doubt, the observation is made that
the Trial Court having considered the material on record in
O.S.No.129/1992 after the remand, considered the matter
on merits also. When such being the case, an application
is filed belatedly in the appeal filed in R.A.No.5/2013 and
kept quiet for a period of almost four years after the
determination of the application filed under Order I Rule
10 of CPC and application is filed in the year 2016 that is
an after thought that too seeking for amendment disputing
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the relationship and the First Appellate Court fails to take
note of the nature of amendment sought in the plaint.
The Trial Court also while considering the relationship
between the parties particularly, the legal representatives,
when an application under Order I Rule 10(2) of CPC was
taken note of the fact that there is undisputed time of
document of the year 1982 wherein the plaintiff itself is a
beneficiary in the document of the year 1982 when the
document was executed by the Sannamma along with her
son who has been recited as adopted son. When all these
material on record taken note of while disposing of
application filed under Order I Rule 10(2) of CPC by the
Trial Court, the First Appellate Court ought to have taken
note of the same. But the First Appellate Court fails to
take note of the fact that amendment is sought after
unsuccessful before the Trial Court twice and the First
Appellate Court has to take note of the fact that on what
juncture, the application was filed for amendment. Hence,
the very reasoning given by the First Appellate Court by
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allowing I.A.No.1 to give a sufficient opportunity to the
appellant in the appellate stage cannot be a ground for
allowing the application filed under Order VI Rule 17 of
CPC. But the fact that the parties have represented before
the Trial Court when an application was filed before it
seeking permission to come on record and same was
decided in the presence of the plaintiff as well as the
defendants who are on record and they cannot agitate in
the appeal that no opportunity was given while deciding
the issue when the same has been considered by the Trial
Court by giving an opportunity, even the evidence was
recorded and enquiry was made as contemplated under
Order 22 Rule 5 of CPC. The First Appellate Court fails to
take of enquiry held under Order 22 Rule 5 of CPC by the
Trial Court while determining the application filed under
Order I Rule 10(2) of CPC and only in the presence of
parties that is including the plaintiff as well as the
defendants, the dispute was considered and enquiry was
conducted and decision was taken. When such being the
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case, the First Appellate Court ought not to have
considered the application filed under Order VI Rule 17 of
CPC and committed an error in allowing the application
which was filed after thought even though the suit was
filed in the year 1992 i.e., after almost 2½ decades an
application is filed for amendment without any
documentary evidence and only on oral say of the plaintiff
and the said fact also not taken note of by the First
Appellate Court and hence, the First Appellate Court
committed an error while entertaining the application filed
under Order VI Rule 17 of CPC after two rounds of
litigation and twice the suit was dismissed before the Trial
Court. Hence, it requires interference of this Court.
12. In view of the discussions made above, I pass
the following:
ORDER
This Miscellaneous Second Appeal is allowed.
The impugned judgment dated 24.04.2018 passed in
R.A.No.5/2013 by the First Appellate Court is set aside and
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the matter is remitted back to the First Appellate Court to
consider the same on merits.
Sd/-
(H.P.SANDESH)
JUDGE
SN
