Karnataka High Court
Muktumsab S/O. Masoom Sab vs Sri. Mallaiah S/O. Mallaiah on 4 July, 2014
Author: K.Bhakthavatsala
Bench: K. Bhakthavatsala
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2014
BEFORE
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
WRIT PETITION NO.86098/2013 (GM-CPC)
BETWEEN:
MUKTUMSAB S/O MASOOM SAB,
AGED: ABOUT 65 YEARS, AGRICULTURIST,
R/O: GUDEKOTE VILLAGE, KUDLIGI TQ,
BELLARY DIST: 583135. ... PETITIONER
(BY SRI.GODE NAGARAJ, ADV)
AND:
1. SRI MALLAIAH S/O MALLAIAH,
AGED: ABOUT 54 YEARS, AGRICULTURIST,
2. SMT.M GOURAMMA W/O TIPPESWAMY,
HOUSEWIFE, AGED ABOUT 50 YEARS,
BOTH ARE R/O: GUDEKOTE VILLAGE,
KUDLIGI TQ, BELLARY DIST.583135
3. SMT.HUSSAIN BEE W/O HUSSAIN PEERA,
AGED: ABOUT 60 YEARS, AGRICULTURIST,
R/O: WARD-10, OPP: VITHOBA TEMPLE COMPOUND,
SANDUR TOWN, TALUK: SANDUR,
DIST: BELLARY-583125.
4. SMT.KASIM BEE W/O MUKTUM SAB,
AGED: ABOUT 53 YEARS, OCC: HOUSEWIFE,
R/O: GUDEKOTE VILLAGE, KUDLIGI TQ,
BELLARY DIST.583135. ... RESPONDENTS
(BY SMT.VIDYA, ADV. FOR R1 TO R3,
2
SRI S.G.KADADAKATTI, ADV. FOR R4)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER ON IA..NO.1 IN R.A.NO.37/2011 DATED
01.02.2013 PASSED BY LEARNED CIVIL JUDGE AND J.M.F.C
KUDLIGI, VIDE ANNEXURE-F AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner who is appellant in R.A.No.37/2011 on the file of Senior Civil Judge and JMFC, Kudligi, is before this Court challenging the order dated 01.02.2013 passed on I.A.No.I filed in the above said appeal, at Annexure-F.
2. Learned counsel for the petitioner submits that the petitioner and his wife jointly filed a suit in O.S.No.38/2009 on the file of the Civil Judge (Jr.Dn.), Kudligi, against respondent Nos.1 to 3 for declaration and consequential relief of permanent injunction. Defendant No.3 filed written statement. Thereafter, the suit was dismissed. As against the dismissal of the suit, present petitioner filed appeal and on 26.11.2012 the petitioner filed an application under Order VI Rule 17 of CPC 3 seeking permission to amend the plaint and seek the relief of possession of the suit schedule properties, if it is held that the plaintiffs are not in possession of the suit schedule properties. But, the first Appellate Court erred in rejecting the application on the ground of latches. He submits that if such a relief is not granted, it would lead to multiplicity of proceedings and there will be miscarriage of justice. He relies upon decision in the case of SREENIVASA KRISHNAPPA BILAGI VS. SHIVAPPA CHANNABASAPPA (LAWS (KAR)-1988-8-30) on the point that when a party to an appeal seeks amendment of his pleadings, the proper stage at which the amendment prayed for should be allowed or refused is the stage of hearing of the appeal and in the case of XAVIER FERRAO VS. THERESA FERRAO (2007 (4) KCCR 2249), it was held that the proposed amendment does not change the basic structure of the suit but only a change in the nature of relief claimed, the application for amendment could not be rejected and in the case of SAMPATH KUMAR VS. 4 AYYAKANNU AND ANOTHER (AIR 2002 SC 3369) it was held that solely on the ground of delay prayer for amendment cannot be refused.
3. Learned counsel for the respondents submits that in paragraph 6 of the written statement filed by defendant No.3 on 25.06.2009 it is clearly stated that defendant No.3 is the owner of item No.1 of the suit schedule property which was inherited from her late husband and prior to that her late husband inherited the same from his father by name Nannya Sab and that she was in possession and enjoyment of the same and she sold it to defendant No.1 for a valuable consideration under a registered sale deed dated 01.07.2006 and thus defendant No.1 is in possession and enjoyment of the suit schedule property as absolute owner and thus denied the plaintiffs' right, title and interest over the suit schedule property. She submits that the Appellate Court rightly rejected the application seeking permission to amend the plaint and the decision 5 cited by the learned counsel for the petitioner are of no avail in the facts and circumstances of the case.
4. In view of the arguments addressed by the learned counsel appearing for the parties, the only point that arises for my consideration is:
"Whether the impugned order calls for interference?"
5. Answer to the above point is in the negative for the following reasons:
The first Appellate Court has rejected the application seeking permission to amend the plaint on the ground of latches. It is pertinent to mention that the plaintiffs have filed a suit for declaration that the plaintiffs have right, title and interest over the suit schedule property and also sought for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit land measuring 5 acres 91 guntas in Sy.No.424-B and 2 acres 75 guntas in Sy.No.429-B. In paragraph 11 of the plaint, the cause of 6 action arose on 01.03.2009 when the defendants tried to interfere with the plaintiffs' peaceful possession and enjoyment of the suit lands. According to the averment of the plaint, the plaintiffs are in peaceful possession and enjoyment of the land. Even in the proposed amendment, petitioner has not stated as to the date on which he lost possession over the suit schedule property. Under such circumstances, filing an application seeking permission to amend the plaint and seek relief of possession is devoid of any merits. The trial court in paragraph 12 of its judgment has observed that during the course of cross- examination, PW-1 has admitted that Thippeswamy and defendant No.2 executed a sale deed on 25.08.1986 with respect to suit schedule item No.2 property in favour of defendant No.1 and that defendant No.3 has executed a sale deed dated 01.07.2006 and that the name of the defendant No.1 is appearing in the ROR in respect of suit schedule properties from the date of purchasing the properties. There is no merit in the writ petition. Since it 7 is not the case of the petitioner that he contended before the first Appellate Court to consider the application for amendment along with the appeal, the ground urged in this petition that the appellant court erred in passing the impugned order is without any merits. The decisions cited by the learned counsel for the petitioner are of no avail. In the result, I pass the following order:
Petition fails and the same is hereby rejected.
(Sd/-) JUDGE Jm/-