Karnataka High Court
Shri Ilahi S/O. Saifansab Gothe vs Shri Hitesh S/O Dilip Oswal on 3 January, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-D:139
WP No. 101709 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 101709 OF 2022 (GM-CPC)
BETWEEN:
SHRI ILAHI S/O. SAIFANSAB GOTHE,
AGE: 73 YEARS, OCC: PVT. SERVICE,
R/O. NEAR LAKKANAKERE, JAMKHANDI,
TQ: & DIST: BAGALKOT-587301.
...PETITIONER
(BY SRI. KIRANKUMAR CHATTIMATH, ADVOCATE)
AND:
SHRI HITESH S/O. DILIP OSWAL,
AGE: 39 YEARS, OCC: BUSINESS,
R/O. SARAF BAZAR, JAMKHANDI,
DISTRICT: BAGALKOT-587301,
DIST: BELGAUM.
...RESPONDENT
(BY SRI. VITHAL TELI, ADVOCATE)
---
GIRIJA A
BYAHATTI
Digitally
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
signed by AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
GIRIJA A
BYAHATTI QUASH THE IMPUGNED ORDER PASSED BY THE
ADDITIONAL CIVIL JUDGE AND JMFC, JAMKHANDI IN
O.S.NO.04/2019 IN I.A.NO.04 DATED 14/02/2022 VIDE
ANNEXURE-G AS NULL AND VOID.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
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NC: 2024:KHC-D:139
WP No. 101709 of 2022
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a) To quash the impugned Order passed by the Additional Civil Judge & JMFC., Jamkhandi in O.S.No.04/2019 in I.A.No.04 dated 14/02/2022 vide Annexure-G as null and void,
b) Issue any other writ or direction as this Hon'ble Court may deems fit in the interest of justice and equity.
2. The petitioner/plaintiff had filed a suit in O.S.No.4/2019 seeking for permanent injunction to restrain the respondent/defendant from obstructing the peaceful possession and enjoyment of the petitioner with regard to the suit schedule property. Written statement having been filed by the defendant, on appearance, issues were framed.
3. The plaintiff led his evidence and the matter was posted for cross-examination of PW1. It is at this stage, that the plaintiff filed an application under Order VI Rule 17 of the Code of Civil Procedure, which -3- NC: 2024:KHC-D:139 WP No. 101709 of 2022 came to be numbered as I.A.No.4, seeking for the relief of declaration that the sale deeds executed on 16.01.2013 and 10.08.2014, were not binding on the plaintiff, which was a fraudulent sale deed and for the further declaration that the plaintiff is in actual possession and enjoyment of the suit schedule property. The said application came to be rejected by the trial Court vide order dated 14.02.2022, on the ground that the proviso to Rule 17 of Order VI of the Code of Civil Procedure has not been satisfied and further that the said application had only been filed to fill up the lacuna in the case. It is aggrieved by the same that the petitioner is before this Court seeking for the aforesaid reliefs.
4. Learned counsel for the petitioner submits that, it is only after the defendant filed his written statement and when the affidavit in lieu of evidence was to be filed on behalf of the petitioner, that it came to their notice that the sale deeds have been executed and -4- NC: 2024:KHC-D:139 WP No. 101709 of 2022 sale deeds have not been challenged, as such, he submits that the said application is required to be allowed.
5. Having perused the plaint, as originally filed, more particularly para 9 of the plaint, it is clearly seen that there is a specific averment made by the plaintiff about the sale deed executed on 16.01.2013 as also the sale deed executed on 19.06.2014. Despite the said sale deeds being to the knowledge of the plaintiff, the plaintiff chose not to challenge the sale deeds, but only seek for permanent injunction for the reason best known to the plaintiff. It is only after the evidence is commenced that those sale deeds have been sought to be challenged by way of an amendment application.
6. I am of the considered opinion that, the plaintiff being aware of the said sale deeds and no application under Order II Rule 2 of the Code of Civil Procedure having been filed, such a challenge to the sale deeds cannot be made by way of an amendment sought for, nearly -5- NC: 2024:KHC-D:139 WP No. 101709 of 2022 after eight years after the execution of the sale deeds, which is not only to the constructive knowledge of the plaintiff, but to his actual knowledge from the averments made in para 9 of the plaint.
7. In that view of the matter, apart from the application not satisfying the requirement of proviso to Rule 17 of Order VI of the Code of Civil Procedure, the relief sought for being hopelessly barred by limitation, would also be required to be rejected.
8. There being no merit in the above petition, the petition stands dismissed.
Sd/-
JUDGE gab ct-mck List No.: 1 Sl No.: 58