[Cites 5, Cited by 0]
Karnataka High Court
Sri. Basavaraj .S vs Sri Nagaraj S on 12 March, 2026
-1-
NC: 2026:KHC:14902
W.P. No.5651/2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.5651/2022 (GM-CPC)
BETWEEN:
SRI. BASAVARAJ .S
S/O LATE SRI. SOMASHEKAR
AGED ABOUT 52 YEARS
R/AT NO.949, SHERKHAN LANE
NAGARTHPET, BANGALORE-560002.
Digitally signed
by RUPA V ...PETITIONER
Location: HIGH
COURT OF (BY SRI. ANANDA V, ADV., FOR
KARNATAKA SRI. JAGADEESH MUNDARAGI, ADV.,)
AND:
1. SRI. NAGARAJ .S
S/O LATE SOMASHEKAR
AGED ABOUT 50 YEARS
R/AT NO.296, SIDDESHWARANILAYA
BEHIND OLD CORPORATION BANK
BANASHANKARI I STAGE
BANGALORE-560050.
2. BHAWARLAL JAIN
S/O DALICHAND
SINCE DEAD REP BY LR'S.
3. SMT. MADHUBALA
W/O SRI BHAWARLAL JAIN
AGED ABOUT 64 YEARS
R/AT. NO.7, SETHAPATHY AGARAHARA
S.L.V. RESIDENCY FLAT NO.305
3RD FLOOR, OPP. ST. THERESA
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NEAR RAYON CIRCLE
BENGALURU-560002.
(a) SMT. RASHMI MUKESH PAGARLA
D/O LATE BHAWARLAL JAIN BADERA
AGED ABOUT 43 YEARS
R/AT. NO.7, SHETHAPATHY AGARAHARA
S.L.V. RESIDENCY FLAT NO.305
3RD FLOOR, OPP. ST. THERESA
NEAR RAYON CIRCLE
BENGALURU-560002.
(b) SMT. SHWETA BAFNA
D/O LATE BHAWARLAL JAIN BADERA
W/O SANDEEP BAFNA
AGED ABOUT 42 YEARS
R/AT. NO.230/A, VARDHAMANNAGAR
SHOBHAWATON KI DHANI
PALROAD, JODPUR.
(c) SMT. SWATHI NOTESH DOSHI
D/O LATE BHAWARLAL BADERA
AGED ABOUT 40 YEARS
R/AT NO.94, SUNKALPET, 3RD CROSS
CUBBONPET, BENGALURU-560002.
(d) SMT. SMITHA NOTESH DASTI
D/O LATE BHAWARLAL JAIN BADERA
AGED ABOUT 38 YEARS
R/AT. NO.94, SUNKALPET
3RD CROSS, CUBBONPET
BENGALURU.
(e) SMT. SAMTHA SOLANKI
D/O LATE BHAWARLAL JAIN BADERA
W/O MITESH SOLANKI
AGED ABOUT 35 YEARS
R/AT. NO.101, KAMAL NIKETAN
SAKKAMMA GARDENS
JAYANAGAR, BENGALURU-560004.
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W.P. No.5651/2022
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(f) SMT. SHEETAL RISHAB DOSHI
D/O LATE BHAWARLAL JAIN BADERA
AGED ABOUT 32 YEARS
R/AT. NO.65B, SVG MANHATTAN
APARTMENT, VASVI TEMPLE ROAD
V.V. PURAM, BENGALURU-560004.
4. SRI. PADAM CHAND BADERA
S/O LATE SRI PARASMAL
AGED ABOUT 45 YEARS
R/AT NO.99/100, 3RD FLOOR
S V E DIAMOND COMPLEX
NAGARTHPET, BENGALORE-560002
...RESPONDENTS
(BY SRI. LAKSHMAN D, ADV., FOR
SRI. RAGHU PRAKASH BABU D, ADV., FOR R2 (a-f) & R4
NOTICE TO R1 IS H/S
R3 SERVED AND UNREPRESENTED)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CPC.,
PRAYING TO QUASH/SETTING ASIDE THE ORDER DTD
19.08.2021 PASSED ON I.A. FILED UNDER ORDER VI, RULE-17
CPC, 1908 BY THE LEARNED XXXVII ADDL. CITY CIVIL JUDGE
AT BENGALURU (CCH-38) IN O.S.NO.1605/2013 VIDE ANNX-A
AND ALLOW THE SAID I.A. AS PRAYED FOR THEREIN & ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed challenging the order dated
19.08.2021 passed on an interlocutory application filed by
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the plaintiff under Order VI Rule 17 of the Civil Procedure
Code, 1908 (for short, 'the CPC') in O.S.No.1605/2013 by
the XXXVII Additional City Civil and Sessions Judge at
Bengaluru (CCH-38) (for short, 'the Trial Court').
2. Sri.Ananda V., learned counsel appearing for
the petitioner submits that the petitioner-plaintiff has filed
a suit for declaration, mandatory injunction and further
relief that the sale deed dated 27.05.2013 executed by the
defendant No.1 in favour of the defendant Nos.3 and 4 in
respect of the suit schedule 'C' property, is not binding on
the plaintiff. It is submitted that during the pendency of
the suit, the plaintiff filed an application seeking for
amendment of the plaint on the ground that the plaintiff
and the defendant No.1 are the brothers and they got the
property divided under a partition deed dated 19.01.2000
and in the said partition deed, it was agreed between the
brothers that if any one of the sharer intends to sell the
property, they should inform the another and to sell the
property in his favour. But, without informing the plaintiff,
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the property has been sold by the defendant No.1 in
favour of the defendant Nos.3 and 4. Thereafter, an
application is filed to seek the amendment of the plaint
and further prayer to grant a decree for preferential right
to purchase the suit schedule property. However, the Trial
Court, solely on the ground of limitation, dismissed the
application. It is further submitted that the question of
limitation cannot be gone into during the course of trial.
In support of his contentions, he placed reliance on the
judgment of the Hon'ble Supreme Court in the case of
PANKAJA AND ANOTHER Vs. YELLAPPA (DEAD) BY
LRs. AND OTHERS1. Hence, he seeks to allow the
petition.
3. Per contra, Sri.Lakshman D., learned counsel
appearing for Sri.Raghu Prakash Babu D., learned counsel
for the respondent Nos.2(a, b, d, e, f, g) and 4 supports
the impugned order of the Trial Court and submits that the
plaintiff, on an earlier occasion sought an amendment of
(2004) 6 SCC 415
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the plaint which was allowed wherein the relief was sought
that the sale deed dated 27.05.2013 is not binding on the
plaintiff. On the said date, he was well aware about the
execution of the sale deed in favour of defendant Nos.3
and 4 by the defendant No.1. However, the plaintiff failed
to seek the relief with regard to the preferential right to
purchase the suit schedule property and only in the year
2020, an application is filed which was barred by limitation
and which has been rightly rejected by the Trial Court.
Hence, he seeks to dismiss the petition.
4. I have heard the arguments of the learned
counsel for the parties and meticulously perused the
material available on record. I have given my anxious
consideration to the submissions advanced on both the
sides.
5. It is to be noticed that the petitioner filed
O.S.No.1605/2013 seeking the relief of declaration that
the plaintiff is the owner of the suit schedule 'B' property,
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mandatory injunction to remove the illegal encroachments
and handover the physical possession of the suit schedule
'B' property to the plaintiff and further relief of permanent
injunction restraining the defendants from interfering with
the peaceful possession and enjoyment of the suit
schedule property. The records indicate that the plaintiff,
on coming to know that the defendant No.1 has sold the
suit 'C' schedule property in favour of defendant Nos.3 and
4, filed an application seeking for amendment of the plaint
which came to be allowed and thereafter, the prayer
number No.5 was added in the plaint i.e. the declaration
that the sale deed dated 27.05.2013 executed by the
defendant No.1 in favour of the defendant Nos.3 and 4 in
respect of the suit schedule property, is not binding on the
plaintiff. Therefore, the aforesaid fact makes it very clear
that the plaintiff was well aware about the execution of the
sale deed by the defendant No.1 in favour of the
defendant Nos.3 and 4 in the year 2014 itself, when the
amendment was allowed. Admittedly, the present
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application was filed in the year 2020 seeking to amend
the plaint and seeking the relief in the present proposed
amendment is to the effect that the plaintiff intends to
seek further relief to grant a decree for preferential right
to purchase the suit schedule property shown in the plaint.
Such a prayer, admittedly, is clearly barred by the law of
limitation. Article 97 of the Limitation Act, 196, provides
one year to enforce the right of pre-emption where the
right is founded on law or general usage or on special
contract. In the instant case, the plaintiff intends to seek
the relief of right for pre-emption beyond the period of
limitation. Consequently, considering the said aspect, the
Trial Court has rightly rejected the application which does
not call for any interference. The contention of the
petitioner that in the said application, the plaintiff has
sought certain other amendments and they are required to
be allowed, also has no merit as the previous paragraphs
in the application are in support of the prayer sought in
the application. It is to be noticed that the judgment
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relied on by the learned counsel for the petitioner has no
application to the facts and circumstances of the case on
hand. As the plaintiff was well aware of the execution of
the sale deed in the year 2014 itself, and had filed an
application seeking pre-emption of right in the year 2020
which is impermissible, even otherwise, it is to be noticed
that the present application is filed after conclusion of the
entire trial that too when the matter is posted for
arguments. On this ground also, the application is liable
to be rejected.
6. For the aforementioned reasons, I do not find
any reason to interfere with the order passed by the Trial
Court.
Accordingly, the petition is devoid of merits and is
rejected.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV/List No.: 1 Sl No.: 36
