Karnataka High Court
Shrishail S/O Mallikarjun Bembalagi vs Smt. Shivaleela, W/O Shambulingappa ... on 12 September, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.66117/2009 (GM-CPC)
C/W.
WRIT PETITION NO.66300/2009 (GM-CPC)
C/W.
WRIT PETITION NO.66156/2009 (GM-CPC)
BETWEEN:
SHRISHAIL
S/O MALLIKARJUN BEMBALAGI
AGE:55 YEARS, OCC AGRI.,
R/O KILLA, GOKAK - 591313 - 7
DIST BELGAUM.
... PETITIONER
(COMMON)
(BY SRI : RAVI S. BALIKAI, ADVOCATE)
AND :
1. SMT. SHIVALEELA,
W/O SHAMBULINGAPPA SHETTAR,
AGE:64 YRS, OCC:HOUSEHOLD WORK,
R/O BYADAGI-580 165
TAL: BYADAGI, DIST:HAVERI.
SMT. SAROJINI W/O.GANGADHAR NAVALE
SINCE DECEASED BY HER L.RS.
2. SHAILENDRA
S/O GANGADHAR NAVALE,
2
AGE:51YRS, OCC:BUSINESS,
R/O OPPOSITE BAZI MARKET,
TAPAKIR GALLI, PANDHARPUR-465432,
DIST:SHOLAPUR (MAHARASTRA).
3. NARENDRA GANGADHAR NAVALE
AGE:45 YRS, OCC:BUSINESS,
R/O OLD KARAD NAKA,
NEAR MAHADIK BUNGLOW,
PANDHARPUR-465432
DIST: SHOLAPUR. (MAHARASHTRA).
4. KUMARI SEEMA D/O GANGADHAR NAVALE
AGE:40 YRS, OCC:HOUSEHOLDWORK,
R/O NEAR KALA MARUTI MANDIR,
TAPAKIR GALLI, PANDHARPUR-465432
DIST: SHOLAPUR (MAHARASHTRA).
5. MAHANTESH S/O GANGADHARW NAVALE
AGE:39 YRS, OCC:BUSINESS
R/O NEAR KALA MARUTI MANDIR,
TAPAKIR GALLI, PANDHARPUR-465432
DIST: SHOLAPUR (MAHARASHTRA).
... RESPONDENTS
(IN W.P. 66117/2009)
(BY SRI : SACHIN S. MAGADUM, ADVOCATE FOR R2-R5;
R1- SERVED BUT UNREPRESENTED)
W.P. NO. 66117/2009 IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DTD. 22/10/2009 PASSED ON I.A.NO. 24 FOR
AMENDMENT OF WRITTEN STATEMENT IN O.S.NO. 24/1996,
PASSED BY THE LEARNED I ADDL.CIVIL JUDGE (SR.DN),
GOKAK PRODUCED AS ANNEXURE-A ISSUE OF THE WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER
AND DISMISS THE ABOVE SAID I.A.NO. 24.
AND :
1. SMT. SHIVALEELA,
W/O SHAMBULINGAPPA SHETTAR,
AGE:64 YRS, OCC:HOUSEHOLD WORK,
3
R/O BYADAGI-580 165
TAL: BYADAGI, DIST:HAVERI.
SMT. SAROJINI W/O.GANGADHAR NAVALE
SINCE DECEASED BY HER L.RS.
2. SHAILENDRA
S/O GANGADHAR NAVALE,
AGE:51YRS, OCC:BUSINESS,
R/O OPPOSITE BAZI MARKET,
TAPAKIR GALLI,
PANDHARPUR-465432,
DIST:SHOLAPUR
(MAHARASTRA).
3. NARENDRA GANGADHAR NAVALE
AGE:45 YRS, OCC:BUSINESS,
R/O OLD KARAD NAKA,
NEAR MAHADIK BUNGLOW,
PANDHARPUR-465432
DIST: SHOLAPUR.
(MAHARASHTRA).
4. KUMARI SEEMA
D/O GANGADHAR NAVALE
AGE:40 YRS,
OCC:HOUSEHOLDWORK,
R/O NEAR KALA MARUTI MANDIR,
TAPAKIR GALLI,
PANDHARPUR-465432
DIST: SHOLAPUR
(MAHARASHTRA).
5. MAHANTESH
S/O GANGADHARW NAVALE
AGE:39 YRS, OCC:BUSINESS
R/O NEAR KALA MARUTI MANDIR,
TAPAKIR GALLI,
PANDHARPUR-465432
DIST: SHOLAPUR
(MAHARASHTRA).
6. STATE OF KARNATAKA
REPRESENTED BY
4
DEPUTY COMMISSIONER,
BELGAUM-590 001.
7. THE TAHSILDAR, GOKAK
GOKAK - 591307,
DIST. BELGAUM.
... RESPONDENTS
(IN W.P. 66300/2009)
(BY SRI : SACHIN S. MAGADUM, ADVOCATE FOR R2-R5;
SRI A.A. PATHAN, A.G.A. FOR R6 & R7;
R1- SERVED BUT UNREPRESENTED)
W.P. NO. 66300/2009 IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DTD. 22/10/2009 PASSED ON I.A.NO. 25 FOR
AMENDMENT OF WRITTEN STATEMENT IN O.S.NO. 36/2006,
PASSED BY THE LEARNED I ADDL.CIVIL JUDGE (SR.DN),
GOKAK PRODUCED AS ANNEXURE-A ISSUE OF THE WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER
AND DISMISS THE ABOVE SAID I.A.NO. 24.
AND :
SMT. SAROJINI W/O.GANGADHAR NAVALE
SINCE DECEASED BY HER L.RS.
1. SHAILENDRA
S/O GANGADHAR NAVALE,
AGE:51YRS, OCC:BUSINESS,
R/O OPPOSITE BAZI MARKET,
TAPAKIR GALLI, PANDHARPUR-465432,
DIST:SHOLAPUR (MAHARASTRA).
2. NARENDRA GANGADHAR NAVALE
AGE:45 YRS, OCC:BUSINESS,
R/O OLD KARAD NAKA,
NEAR MAHADIK BUNGLOW,
PANDHARPUR-465432
DIST: SHOLAPUR. (MAHARASHTRA).
3. MAHESH S/O GANGADHARW NAVALE
AGE:39 YRS, OCC:BUSINESS
5
R/O NEAR KALA MARUTI MANDIR,
TAPAKIR GALLI,
PANDHARPUR-465432
DIST: SHOLAPUR
(MAHARASHTRA).
4. SEEMA D/O GANGADHAR NAVALE
AGE:40 YRS,
OCC:HOUSEHOLDWORK,
R/O NEAR KALA MARUTI MANDIR,
TAPAKIR GALLI,
PANDHARPUR-465432
DIST: SHOLAPUR (MAHARASHTRA).
5. SMT. SHIVALEELA,
W/O SHAMBULINGAPPA SHETTAR,
AGE:63 YRS,
OCC:HOUSEHOLD WORK,
R/O BYADAGI-580 165
TAL: BYADAGI, DIST:HAVERI.
6. SMT. ROOPA W/O.SHRISHAIL BAMBALAGI
AGE. 46 YEARS,
OCC. HOUSEHOLD WORK,
R/O. KILLA, GOKAK-591 313,
DIST. BELGAUM.
... RESPONDENTS
(IN W.P. 66156/2009)
(BY SRI : SACHIN S. MAGADUM, ADVOCATE FOR R1-R4;
R5 & 6- SERVED BUT UNREPRESENTED)
W.P. NO. 66156/2009 IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DTD. 22/10/2009 PASSED ON I.A.NO. 26 FOR
AMENDMENT OF WRITTEN STATEMENT IN O.S.NO. 23/2006,
PASSED BY THE LEARNED I ADDL.CIVIL JUDGE (SR.DN),
GOKAK PRODUCED AS ANNEXURE-A ISSUE OF THE WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER
AND DISMISS THE ABOVE SAID I.A.NO. 26.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
6
ORDER
Children of Mallikarjun Bembalagi and Smt. Gurulingawwa, residents of Gokak have got into litigation, in respect of the estate left by Sri Mallikarjun Bembalagi. Second daughter Smt. Shivaleela, instituted O.S. No.24/1996 in the Court of I Addl. Civil Judge (Sr.Dn.) at Gokak, to pass a decree of declaration and permanent injunction in respect of the properties shown in the plaint schedule. First daughter Smt. Sarojini, who was second defendant in O.S. No.24/1996 instituted O.S. No.23/2006 based on a Will dated 06.07.1992, allegedly executed by late Gurulingawwa W/o. Mallikarjun Bembalagi. Said suit has been instituted to pass a decree of declaration and permanent injunction in respect of the property shown in the body of the plaint. Smt. Shivaleela, the plaintiff in O.S. No.24/1996 instituted O.S. No.36/2006 in the Court of I Addl. Civil Judge (Sr.Dn.) Gokak against the other children of Smt. Gurulingawwa and Sri Mallikarjun Bembalagi, to pass a decree of declaration that the Will dated 06.07.1992 as null and void and unenforceable and for grant of 7 consequential reliefs. She has further sought for a declaration to declare that she is joint owner of the properties described in the schedule of the plaint therein. The suits have been clubbed and have been tried. I.A. Nos.24, 25 and 26 were filed by L.Rs. of Smt. Sarojini, the 2nd defendant, under Order VI rule 17 of C.P.C., to permit them to amend the pleading of Smt. Sarojini, in the manner proposed. Objections filed by the adopted son of said Smt. Gurulingawwa and Sri Mallikarjun Bembalagi having been over ruled and the applications having been allowed by a common order passed on 22.10.2009, these writ petitions have been filed by defendant No.3 in O.S. No.24/1996.
2. Heard Sri Ravi S. Balikai, learned Advocate for the petitioner and Sri Sachin S. Magadum, learned Advocate for the respondents and Sri A.A. Pathan, learned Government Adovcate and perused the writ petition records.
3. Suit having been instituted prior to amendment of C.P.C. vide Amendment Act No. 22 of 2002, the amended provision under Order VI Rule 17 of C.P.C. is not attracted. 8 Keeping in view the close relationship between the parties, the trial Court, in exercise of its discretion to decide the real questions in controversy between the parties has allowed the said applications and has permitted the applicants to amend the pleadings, in the manner proposed. Mere allowing of the amendment is not recognising the claim of the applicants. The applicants will have to prove their case in accordance with law for grant of relief in their favour. In the said view of the matter, I do not find justification to interfere with the impugned order.
In the result, writ petitions are dismissed. However, the petitioner is permitted to file additional written statement in each of the three suits, within a period of three weeks. If any additional issues were to arise for determination, the same be raised within a period of six weeks. The suits having been consolidated, the plaintiff in O.S. Nos.24/1996 and 36/2006 shall adduce and complete her side of evidence within a period of two months from the date the additional issues are raised and the suit is posted for trial. The L.R.'s 9 of plaintiff in O.S. No.23/2006 shall adduce and complete their evidence within a period of two months from the date the plaintiff in O.S. No.24/1996 and 36/2006 completes her case. The petitioner herein/defendant in all the three suits, shall adduce and complete his evidence within a period of three months from the date the case of the plaintiffs in the three suits is completed. The suit be decided expeditiously and at any event, before 30.06.2014.
No costs.
SD/-
JUDGE hnm/