Karnataka High Court
Sri Sohan Raj vs Sri C.M. Laxmichand on 19 February, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19th DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
WRIT PETITION No.48843 OF 2013 (GM-CPC)
BETWEEN:
1. Sri.Sohan Raj,
S/o.Late Sri.Amrutraj,
Aged about 75 years,
Agriculturist,
Residing at M.G.Road,
Chickmagalur - 577 101.
2. Sri.Dhanraj Jain,
S/o.Late Sri.Amrutraj,
Aged about 70 years,
Agriculturist,
Residing at 'Dharmajyothi',
Canara Bank Road,
Chickmagalur - 577 101 ...PETITIONERS
(By Sri.Paras Jain, Adv.)
AND:
1. Sri.C.M.Laxmichand,
S/o.Late Sri.Mohanlal,
Aged about 74 years,
Residing at M.G.Road,
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Chickmagalur - 577 101.
2. Smt.Bhawari Bai,
C/o.Sha Manikchand Tarachand,
Aged about 70 years,
Residing at M.G.Road,
Terikere, Chickmagalur District.
3. Smt.Vadan Devi,
W/o.Late Sri.Chaganmal,
Aged about 89 years,
Resident of P.Sanghvi Cloth Centre,
Jain Madir Road, Bandra (West),
Mumbai - 400 050.
4. Sri.Sukanraj,
S/o. Late Sri.Chaganmal,
Aged about 64 years,
Resident of P.Sanghvi Cloth Centre,
Jain Mandir Road, Bandra (West),
Mumbai - 400 050.
5. Dr.Prakash Chand,
S/o.Late Sri.Chaganmal,
Aged about 56 years,
Resident of P.Sanghvi Cloth Centre,
Jain Mandir Road, Bandra (West),
Mumbai - 400 050.
6. Sri.Kiranraj,
S/o.Late Sri.Chaganmal,
Aged about 53 years,
Resident of P.Sanghvi Cloth Centre,
Jain Mandir Road, Bandra (West),
Mumbai - 400 050.
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7. Shivarudregowda,
S/o.Late Halagegowda,
Aged about 62 years.
8. Smt.Sathyamma,
W/o.Late Halagegowda,
Aged about 77 years.
9. Sri.Gangegowda,
S/o.Late Halagegowda,
Aged about 59 years.
10. Sri.Chandregowda,
S/o.Late Halagegowda,
Aged about 60 years.
11. Smt.Jayamma,
W/o.Late Sri.Veeregowda
Aged about 50 years.
12. Sri.Basavegowda,
S/o.Late Sri.Veeregowda,
Aged about 42 years.
Respondents 7 to 12 are
Residing at Samshettyhalli
Village, Kasaba Hobli,
Belur Taluk, Hassan District. ...RESPONDENTS
(By Sri.K.G.Sadashivaiah, Adv. for R1
R2 to R12 - Notice dispensed with V/o dtd.30.10.13)
******
This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the impugned
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order dated 01/10/2013, on I.A. No.2 passed by Addl. Dist.
Judge at Hassan, in R.A. No.191/2012, (Annexed as
Annexure-G to this writ petition) passed on iterlocutory
application filed under order vi rule 17 of CPC and further
prays that said interlocutory application be allowed and the
petitioners may be permitted to amend the plaint to
incorporate the subsequent events/happenings, so that court
is updated regarding the latest developments and can
dispense the justice.
This writ petition coming on for Orders this day, the
Court passed the following:
ORDER
In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioners have called in question, the order dated 01.10.2013, passed by the Appellate Court, in RA No.191/2012 on I.A.No.2 vide Annexure-G.
2. By the impugned order at Annexure-G, the Appellate Court has rejected IA No.2 filed by the petitioners to amend the plaint by adding the proposed amendment.
3. Aggrieved by that, the petitioners have filed this writ petition.
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4. Briefly stated the facts are;
The petitioners had filed the suit in O.S.No.214/98 for declaration, partition and separate possession of the suit schedule properties. The suit came to be dismissed on 10.11.2010. The petitioners have filed review petition in RP No.1/2010. The Trial Court has rejected the review petition on 8.8.2012. Thereafter, the petitioners have preferred regular appeal in RA No.191/12. It is stated, there was a delay in filing the appeal and it has been condoned. Thereafter, the petitioners have filed IA-2 for amendment of the plaint by adding the proposed amendment. The Appellate Court by its order dated 1.10.2013 has rejected the application. Therefore, this writ petition.
5. The 1st respondent has filed statement of objections contending that the writ petition is not maintainable and the impugned order does not call for interference. It is also stated, when the gift deed was executed 6 no proceedings were pending. Therefore, the proposed amendment cannot be allowed and the writ petition is liable to be dismissed.
6. The learned counsel for the petitioners contended that the impugned order cannot be sustainable in law. He also submitted that the proposed amendment is a subsequent event. The suit was for declaration, partition and separate possession. The appeal is pending. The 1st respondent has gifted a portion of the suit schedule property in favour of his son Sri.L.Mahendra Kumar through gift deed dated 15.9.2012. Therefore, the proposed amendment is required for effective adjudication of the matter. The appellate court was not justified in rejecting IA No.2. He also submitted that to avoid multiplicity of proceedings, the appellate court should have allowed IA No.2. Therefore, the impugned order cannot be sustained in law. He placed reliance on the 7 decision of the Hon'ble Supreme Court reported in AIR 1974 SC page 1178 and 2002 (2) SCC page 256.
7. As against this, the learned counsel for the respondent No.1 submitted that the impugned order does not call for interference. He also submitted that the suit was dismissed on 10.11.2010. Thereafter, the review petition has been filed and it came to be dismissed on 8.8.2012. Thereafter, the gift deed has been executed on 15.9.2012. At that time, no proceedings were pending. He also invited my attention to Section 52 of the Transfer of Property Act. Further he submitted that the proposed amendment is highly belated and cannot be allowed. The trial court rightly rejected the application. Therefore, the impugned order does not call for interference.
8. I have carefully considered the submissions made by the learned counsel for the parties.
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9. The point that arises for my consideration is; Whether the impugned order calls for interference?
10. It is relevant to note, the suit in O.S.No.214/08 has been filed by the petitioners for declaration, partition and separate possession of the suit schedule properties. The suit has been dismissed on 10.11.2010. Thereafter, the review petition has been filed in RP No.1/2010. It has been dismissed on 8.8.2012. Thereafter, the petitioners have filed regular appeal in RA No.191/2013. It is pending. After the decree, the 1st respondent has gifted a portion of the suit schedule property in favour of Sri.L.Mahendra Kumar through gift deed dated 15.9.2012. Therefore, the petitioners have filed IA No.2 to amend the plaint by adding the proposed amendment which is a subsequent event. The gift deed has been executed on 15.9.2012. It is a subsequent event. The gifted property is a portion of the suit schedule property. Therefore, the proposed amendment is required for effective 9 adjudication of the matter and to avoid multiplicity of proceedings. Therefore, the impugned order cannot be sustainable in law.
Accordingly, the writ petition is allowed and the impugned order passed by the trial court in R.A.No.191/2012 on I.A.No.2 is hereby set aside. IA No.2 is allowed and the petitioners are permitted to amend the plaint as prayed in IA No.2. As the matter is pending before the appellate court, the appellate court itself can record the evidence instead of remitting the matter to the trial court for recording of evidence. The respondents can file their additional written statement. Thereafter, the appellate court can record the evidence and dispose of the matter. In the circumstances, the appellate court is directed to dispose of the matter within the outer limit of six months.
Sd/-
JUDGE KLY/