Manoj Rayappa Karade vs Smt. Tulasawwa W/O. Hanumantappa ... on 17 July, 2013

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Karnataka High Court

Manoj Rayappa Karade vs Smt. Tulasawwa W/O. Hanumantappa ... on 17 July, 2013

Bench: Aravind Kumar

                             :1:




         IN THE HIGH COURT OF KARNATAKA
            CIRCUIT BENCH AT DHARWAD

      DATED THIS THE 17TH DAY OF JULY, 2013

                       BEFORE

      THE HON'BLE MR.JUSTICE ARAVIND KUMAR

             W.P.NO.76754/2013 (GM-CPC)

BETWEEN:

MANOJ RAYAPPA KARADE,
AGE: 39 YEARS,
R/O.KOLIKERI,
HOSAYALLAPUR,
DHARWAD.
                                      ... PETITIONER

(BY SRI.J.S.SHETTY, ADV.,)

AND

SMT. TULASAWWA W/O. HANUMANTAPPA
SHIRKE,
AGE: 60 YEARS,
R/O.KOLIKERI,
HOSAYALLAPURR,
DHARWAD.
                                     ... RESPONDENT
(BY SRI.C.G. SHEELAVANT, ADV.,)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 20.022.013, PASSED BY III
ADDITIONAL SENIOR CIVIL JUDGE, DHARWAD IN
O.S.NO.178/1998, THE COPY OF WHICH HAS BEEN
                             :2:




PRODUCED HEREWITH AND MARKED AS ANNEXURE-A
ETC.,


    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:


                          ORDER

Defendant No.2 being aggrieved by order of rejection of application to amend written statement has approached this Court seeking for setting aside the order dated 22.02.2013 Annexure-A and allowing the application.

2. Contention of Mr.J.S.Shetty, learned counsel appearing for petitioner/defendant No.2 is that in the rejoinder filed by the plaintiff to the written statement of 2nd defendant the will executed by plaintiff in favour of defendant No.1a is contended as fabricated document was sought to be denied by raising a plea of maintainability of suit and as such amendment of the :3: written statement as sought for ought to have been allowed.

3. Sri.Sheelavant, learned counsel appearing for plaintiff submits that subsequently, plaintiff has admitted the execution of the Will and he has also filed a memo to the said effect before trial Court. Said memo is taken on record. In that view of the matter, question of examining the plea now sought to be put forward in the proposed written statement at paragraph No.5a does not arise.

4. Insofar as claim sought to be put forwarded in para No.5b is a matter of evidence and at this stage defendants cannot be permitted raise such a plea and it is always open to them demonstrate before trial Court these aspects from the available records including value of suit property. Hence, by placing the memo filed by learned counsel for respondent-plaintiff on record nothing survives in this writ petition. Hence, writ :4: petition stands dismissed with cost of Rs.2,500/-. Registry is directed to issue a cheque to the respondent- plaintiff. Balance amount of Rs.5,000/- in deposit is ordered to be refunded to the writ petitioner.

Ordered accordingly.

SD/-

JUDGE BS

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