Karnataka High Court
Mahadevappa vs Sri.Sahadev & Ors on 28 November, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.No.201722/2018 (GM-CPC)
Between:
Mahadevappa
S/o Paruthappa Meti
Age: 55 years, Occ: Agriculture
R/o Donur, Tq. Basawan Bagewadi
Dist. Vijayapur
... Petitioner
(By Sri Ravindra Reddy, Advocate)
And:
1. Sri Sahadev S/o Paruthappa Meti
Age: 49 years, Occ: Agriculture
R/o Donur, Tq. Baswan Bagewadi
Dist. Vijayapura - 586 101
2. Smt. Basamma W/o Prakash Hunal
Age: 55 years, Occ: Household
R/o Beelagi, Tq. & Dist. Bagalkot - 586 101
3. Smt. Renuka W/o Sangappa Byali
Age: 34 years, Occ: Household
R/o Hullur, Tq. Muddebihal
Dist. Vijayapur - 586 101
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4. Smt. Gourabai W/o Siddlingappa Meti
Age: 49 years, Occ: Household
R/o Donur, Tq. Basawan Bagewadi
Dist. Vijayapur
5. Smt. Annapurna W/o Shivanand Telgi
Age: 31 years, Occ: Household
R/o Donur, Tq. & Dist. Vijayapur - 586 101
6. Sri Manjunath S/o Siddlingappa Meti
Age: 29 years, Occ: Student
R/o Donur, Tq: & Dist: Vijayapur - 586 101
7. Smt. Suvarna W/o Shivanand Arkeri
Age: 28 years, Occ: Household
R/o Donur, Tq & Dist: Vijayapur - 586 101
8. Smt. Basamma W/o Erappa
@ Sannaverappa Kaghade
Age: 61 years, Occ: Household
R/o Seethimani,
Tq. & Dist. Bagalkot - 587 101
9. Vijayalakshmi Kelashetty Kachgar
Age: 41 years, Occ: Household
R/o Kudalasangama,
Tq & Dist. Bagalkot - 587 101
10. Smt. Manjula W/o Digamber
Age: 39 years, Occ: Household
R/o Telgi, Tq. & Dist. Bagalkot - 587 101
...Respondents
This writ petition is filed under Article 227 of the
Constitution of India praying to issue a writ of certiorari
quashing order dated: 16.04.2018 passed on I.A.No.XXXV in
O.S.No.196/2009 by the Court of Additional Civil Judge &
JMFC, Basavana Bagewadi, vide Annexure-E.
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This petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
Petitioner is the plaintiff in O.S.No.196/2009. When matter was at the fag end namely, at the stage of final arguments, I.A.No.XXXV under Order VI Rule 17 of Code of Civil Procedure came to be filed seeking amendment of plaint, whereunder plaintiff proposed to incorporate certain properties which had been left out from the schedule of properties. After considering the objections filed by the defendant Nos.9 and 10 said application came to be rejected by the impugned order dated 16.04.2018 Annexure-E. Though, granting or permitting amendment of raising a plea of this nature would be considered liberally, keeping in mind proviso to Order VI of Rule of 17 of Code of Civil procedure, this Court cannot lose sight of the fact that under proviso to Rule 17, burden is cast on the applicant to establish and demonstrate that inspite of due diligence he could 4 not have raised such plea at the first available opportunity.
2. In the instant case, defendants having filed written statement way back in the year 2012 have specifically contended all the properties belonging to the joint family has not been included in the plaint scheduled. Despite such plea having been raised by the defendants in the year 2012 itself, which was within the knowledge of plaintiff-petitioner, for reasons best known did not incorporate by way of amendment the properties now sought to be added. In the light of embargo placed under proviso to rule 17 namely, amendment being impermissible in the event of trial having commenced and coupled with the fact that plaintiff has not explained the reasons for not raising such a plea at an earlier point of time knowing fully well that said properties had not been included in the schedule and 5 had kept quite for six (6) long years would disentitle the plaintiff to the relief sought for.
3. No other good ground made out. Hence, writ petition is hereby dismissed.
Sd/-
JUDGE BL