Karnataka High Court
Smt Saroja N vs Sri M N Chandrashekara on 21 August, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21st DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION NO.52348 OF 2013 (GM-CPC)
Between:
Smt.Saroja N
W/o late M.N.Jagadeesha
Age: 45 years
R/a Behind Kamakshi Hospital
Saraswathipuram
Mysore - 571 102 ... Petitioner
(By Shri Fayaz Sab B.G., Advocate)
And:
1. Shri M.N.Chandrashekara
S/o late M.Narasimhaiah
Age: 67 years
R/a D.No.4522
Ksheerasagara Nilaya
Opp. Water Tank, Shankar Nagara
Mandya City - 572 101
2. Town Municipal Council
Rep. by its Secretary
2
Malavalli
Mandya District - 572 103
3. Shri R.L.Muthuraju
S/o P.Lingappa
Age: 33 years
R/a No.3, Nagarathna Nilaya
Srimatha Layout, Kottnoor, J.P.Nagar
Bangalore - 560 094 ... Respondents
(By Shri H.C.Shivaramu, Advocate)
---
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to call for the entire records
pertaining to the case of the petitioners and quash the impugned
order dated 30.10.13 made on IA No.29 filed u/O 6 Rule 17 r/w
Section 151 of CPC, in O.S.No.295/06 on the file of the Sr. Civil
Judge and JMFC at Malavalli, which is produced and marked as
Ann-A and etc.
This Petition coming on for Hearing this day, the Court made
the following:-
ORDER
Heard the learned counsel for the petitioner.
2. The petitioner is said to be the widow of one Jagadeesh. It is stated that the suit was filed for a declaration that they are the 3 owners in respect of the suit property. There was only one item indicated in the plaint schedule. This claim was based on the last Will and testament of one Cheluvaiah who is said to have died on 20.6.1987. The suit was filed in the year 2006. The present petitioner is the widow of the 2nd plaintiff who died during the pendency of the suit as on 12.6.2013. After having come on record as the legal representative of the said plaintiff, it is the case of the petitioner that she realized that the Will clearly mentioned one more item of property that has been inadvertently left out in the schedule and therefore, sought to incorporate the same. The respondent had seriously objected to the proposed amendment. The Trial Court upheld the objections and rejected the application as being hopelessly barred by time.
3. The learned counsel for the petitioner submitted that the petitioner has claimed title on the basis of a Will. The Will clearly mentions two items of properties. The suit having been filed by the 4 husband of the petitioner, for some inexplicable reason he having left out one item of the properties, results in the petitioner being denied of the benefit of having the same which is also bequeathed in favour of the plaintiffs. Therefore, without going into the nature of the claim, it is only to correct the error that has occurred. If the petitioner fails on merits even then she would have no right on the second item of the property. The Trial Court has rejected the application notwithstanding the fact that the petitioner who is a widow, has come on record only recently and has disclosed the patent error committed in the drafting of the suit by her husband. It is that which is under challenge in this petition.
4. The learned counsel for the respondents would, however, seek to justify the reasoning of the Trial Court and would point out that if really the suit claim was genuine, there was no impediment for the beneficiary under the Will to have sought change in the revenue records on the basis of the Will. Though the testator died 5 in the year 1987, there has been no attempt to seek the benefit under the Will and therefore, it is obviously a got up document and the petitioner now seeking to incorporate one more item therefore would compound the mischief and hence, the Trial Court having rejected the application is in order and there is no warrant of interference by this Court.
5. However, as rightly pointed out by the learned counsel for the petitioner, the Rule that an amendment of the pleadings cannot be allowed at a late stage of the suit being established, the exception being, that in cases where there is no failure of justice by such prayer being allowed. In that, a right accrued to the defendant is not taken away by virtue of such amendment. As already pointed out by the learned counsel, the Will which is the basis of the suit is before the Court. The same clearly indicates that the bequest is made in respect of two items of properties. If there was only one item that was indicated in the schedule, there is clearly an error 6 committed and it is that which is sought to be corrected so that the plaintiff is not disadvantaged in the relief being denied in respect of that item of property also though it is clearly indicated in the document on which the suit is based. Hence, it is a matter of form and not substance which is sought to be altered and hence, the application ought to have been allowed by the Trial Court as it does not require any major proceedings to be conducted, or repeated, in order to accommodate the petitioner in that regard.
6. Therefore, the petition is allowed. The petitioner is permitted to amend the schedule to indicate the second item of property which is claimed. On merits, the contentions available to the defendant would not be taken away. To that extent, the defendant may urge all contentions that are available on merits which are equally applicable in respect of both items of the properties, on merits and establish the contention of the defendant that there is one more Will executed by one of the wives of his 7 father, on the basis of which the respondent has obtained revenue entries in his favour and that has not been challenged by the present petitioner.
Sd/-
JUDGE RV