Karnataka High Court
Channabasappa S/O Shivappa Kichadi vs Parvatevva on 13 April, 2017
Author: B.S Patil
Bench: B.S.Patil
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
WRIT PETITION No.103362/2017 (GM-CPC)
BETWEEN:
CHANNABASAPPA S/O SHIVAPPA KICHADI
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O BISARALLI, TQ: KALAGHATAGI,
DIST: DHARWAD. ...PETITIONER
(BY SRI. AVINASH BANKAR, ADV)
AND:
1. PARVATEVVA W/O CHANNABASAPPA KICHADI,
SINCE DEAD BY HER LRS.
1(a) BASAVARAJ S/O SANKAPPA METI,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: BEGUR, TQ: KALAGHATAGI,
DIST: DHARWAD.
1(b) SMT. SUNANDA W/O MAHADEVAPPA GIDNAVAR,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: FLAT NO.101,
ROTSAN HERITAGE APARTMENT,
NEAR ARMUT TALKIES, VIDYA NAGAR,
HUBBALLI, DIST: DHARWAD. ...RESPONDENTS
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 17.01.2017 PASSED BY THE COURT OF
CIVIL JUDGE AND JMFC, KALAGHATAGI IN O.S.NO.95/2008 ON
I.A.NO.III VIDE ANNEXURE-E AND ETC.,
2
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is calling in question order dated 17.01.2017 passed by the trial Court allowing the application filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure seeking amendment of the plaint.
2. Petitioner is the defendant in O.S.No.95/2008. The said suit is filed seeking a declaration that Shivappa Kichadi, father of defendant was not the legally adopted son of Parvatevva/original plaintiff and that the adoption deed dated 06.12.1939 was invalid, null and void. A declaration was also sought to the effect that plaintiff was the absolute owner of the suit schedule property and was exclusively entitled to the same and a decree for possession of the suit lands was also sought.
3. During the pendency of the suit, plaintiff - Parvatevva died. Shri Basavaraj s/o Sankappa Meti and 3 Smt.Sunanda Gidnavar w/o Mahadevappa Gidnavar have come on record claiming that they are the legatees under the Will executed by Parvatevva and are entitled to prosecute the suit.
4. During the pendency of the suit and when the matter was posted for evidence of the parties, present application has been filed seeking amendment of the plaint to incorporate relief regarding due execution of Will by Parvatevva/original plaintiff in favour of respondents 1 and 2 herein and also for a relief regarding declaration that they are entitled as legatees of Parvatevva to the share to which Parvatevva was entitled in the family properties. The Court below has allowed the application overruling the objections filed by the defendants.
5. The objection raised by the defendants was that the controversy was solely with regard to the validity of adoption and question of introducing a fresh controversy regarding the Will and the entitlement of plaintiffs 1 (a) 4 and 1 (b) to succeed to the property under the said Will tantamounted to introducing a new cause of action. He also points out that the suit filed by the very plaintiffs claiming right under the very Will has been dismissed holding that they had failed to prove the Will.
6. Per contra, learned counsel for the respondents points out at this stage that the decree passed in the said suit is subject matter of appeal in R.A.179/2016 and therefore, the said decree could not be made basis to reject the application seeking amendment of the plaint.
7. Having heard learned counsel for both parties, I find that as plaintiffs 1 (a) and 1 (b) have already come on record to prosecute the suit based on the very Will executed in their favour, prayer made by them seeking amendment to incorporate certain averments with regard to due execution of the Will and seeking relief based on the said Will, cannot be termed as totally beyond the scope of the suit. Indeed, in the absence of the Will, rights 5 of the plaintiffs would be in serious doubt. When the decree passed in O.S.No.45/2006 is the subject matter of appeal and the question whether plaintiffs have succeeded to the estate of Parvatevva under the said Will has been seized by the appellate Court. I do not find any illegality in the order passed by the Court below permitting amendment to the plaint for incorporating certain averments regarding the Will and an additional relief based on the same.
Therefore, the writ petition being devoid of merits is dismissed.
Sd/-
JUDGE Jm/-