Karnataka High Court
Irawwa W/O Basappa Choudhari vs Sri.Shivappa Adiveppa Choudhari on 10 September, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 103212 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 103212 OF 2018 (GM-CPC)
BETWEEN:
1. IRAWWA W/O. BASAPPA CHOUDHARI,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587313, DIST: BAGALKOT.
2. IRAPPA @ IRANNA
S/O. BASAPPA CHOUDHARI,
SINCE DECEASED BY HIS LR'S.
2A. LATA W/O. IRAPPA @ IRANNA CHOUDHARI,
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL, DIST: BAGALKOT.
2B. SAMARTH S/O. IRAPPA @ IRANNA CHOUDHARI,
AGE: 11 YEARS, OCC: NILL,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL, DIST: BAGALKOT.
GIRIJA A
BYAHATTI 2C BHAGYA D/O. IRAPPA @ IRANNA CHOUDHARI,
Location: HIGH
AGE: 10 YEARS, OCC: NILL,
COURT OF
KARANTAKA R/O. WARD NO.5, GOVINDPUR GALLI,
DHARWAD
BENCH MUDHOL, DIST: BAGALKOT.
2D. SHRAVANI D/O. IRAPPA @ IRANNA CHOUDHARI,
AGE: 09 YEARS, OCC: NILL,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL, DIST: BAGALKOT.
2E. BASAVARAJ S/O. IRAPPA @ IRANNA CHOUDHARI,
AGE: 08 YEARS, OCC: NILL,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL, DIST: BAGALKOT.
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WP No. 103212 of 2018
APPLICANT 2(B) TO 2(E) ARE MINORS
REPRESENTED BY M/G MOTHER WHO IS
APPLICANT NO.2(A) SMT. LATA
W/O. IRAPPA @ IRANNA CHOUDHARI.
3. ANNAPPA S/O. BASAPPA CHOUDHARI,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587313, DIST: BAGALKOT.
4. SMT. BHARATI @ KALPANA
W/O. PRAKASH RADDARATTI,
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587313, DIST: BAGALKOT.
5. SMT. NAGAWWA W/O. RUDRAGOUDA PATIL,
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O. AREBENCH, TQ: RAMDURGA-581123,
DIST: BELGAUM.
...PETITIONERS
(BY SRI. B.S. KAMATE, ADVOCATE)
AND:
1. SRI. SHIVAPPA ADIVEPPA CHOUDHARI,
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587313, DIST: BAGALKOT.
2. SRI. ISHWAR ADIVEPPA CHOUDHARI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587313, DIST: BAGALKOT.
3. SRI. DUNDAPPA ADIVEPPA CHOUDHARI,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587313, DIST: BAGALKOT.
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4. PRAKASH S/O. CHAMPAKLAL SHAHA,
AGE: 51 YEARS, OCC: BUSINESS,
R/O "YOGI DARSHAN",
12 APPASAHEB PATIL NAGAR,
INFRONT OF "SONA CLINIC"
SANGALI-416416, MAHARAHTRA STATE.
5. VIPUL S/O. CHAMPAKLAL SHAHA,
AGE: 46 YEARS, OCC: BUSINESS,
R/O "YOGI DARSHAN",
12 APPASAHEB PATIL NAGAR,
INFRONT OF "SONA CLINIC"
SANGALI-416416, MAHARAHTRA STATE.
6. MOHAMMAD ISMAIL S/O. MOULASAB PARTHNALLI,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O. KUNCHNUR ROAD,
JAMKHANDI-587301, DIST: BAGALAKOT.
7. TOUFIQ AHMMAD S/O. MOULASAB PARTHNALLI,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O. KUNCHNUR ROAD,
JAMKHANDI-587301, DIST: BAGALAKOT.
8. UDAY S/O. VENKAPPA SARAWAD,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. MUDHOL-587313, DIST: BAGALKOT.
9. SRI. SHANKAR S/O. ADIVEPPA CHOUDHARI,
SINCE DECEASED BY LR'S.
9A. SMT. SUMITRA W/O. SHANKAR CHOUDHARI,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL, DIST: BAGALKOT.
9B. MAHADEV S/O. SHANKAR CHOUDHARI,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL, DIST: BAGALKOT.
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9C. HANAMANT S/O. SHANKAR CHOUDHARI,
AGE: 22 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL, DIST: BAGALKOT.
9D. SURESH S/O. SHANKAR CHOUDHARI,
AGE: 20 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL, DIST: BAGALKOT.
9E. SUBASH S/O. SHANKAR CHOUDHARI,
AGE: 18 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL, DIST: BAGALKOT.
10. SMT. GOURAWWA W/O. ADIVEPPA CHOUDHARI,
AGE: 93 YEARS, OCC: AGRICULTURE,
R/O. WARD NO.5, GOVINDPUR GALLI,
MUDHOL-587313, DIST: BAGALKOT.
11. ARAVIND S/O. VASANNA DESAI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. MUDHOL-587313, DIST: BAGALKOT.
...RESPONDENTS
(BY SRI. SANGRAM S. KULKARNI, ADV. FOR R1-R3;
SRI. PRASHANT KADADEVAR, ADV. FOR R4 & R5;
NOTICE TO R6, R7, R9 & R11 ARE HELD SUFFICIENT;
R8-SERVED; P1-P5 & R1-R3 & R9 ARE LR'S OF DECEASED R10)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER WRIT OR ORDER OR
DIRECTION, QUASHING THE IMPUGNED ORDER ON I.A. NO.19 TO 21
DATED 21.02.2018 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC,
MUDHOL, IN O.S.NO.17/2011 PRODUCED AT ANNEXURE-L AND
ALLOW THE I.A.NO.19 TO 21 FILED BY THE PETITIONERS IN
O.S.NO.17/2011 VIDE ANNEXURE-E, G AND J RESPECTIVELY AND
ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard the petitioners' counsel and also the counsel appearing for the respondents.
2. in this writ petition, a prayer is sought to issue writ in the nature of certiorari or any other writ or order or direction to quash the order passed by the Senior Civil Judge and JMFC, Mudhol ('Trial Court' for short) on I.A.No.19 to 21 dated 21.02.2018 in O.S.No.17/2011 produced at Annexure-L and allow the I.As filed by the petitioners vide Annexures E, G and J respectively and grant such other relief as deems fit in the circumstances of the case.
3. The factual matrix of the case of the petitioners/defendants while seeking the said relief is that;
3.1. Respondents No.1 to 3 herein i.e., the plaintiffs have filed a suit in O.S.No.17/2011 for declaration and consequential relief of -6- NC: 2024:KHC-D:12957 WP No. 103212 of 2018 injunction against the defendants/petitioners. Defendant No.1 has filed written statement and plaintiffs have also filed amendment application and the said amendment application was allowed and plaintiffs carried out the amendment.
3.2. Consequently, Defendants No.14 and 15 have also filed written statement and additional written statement filed by the petitioners and written statement is also filed by defendant No.2.
3.3. The Trial Court framed issues and evidence of plaintiffs also commenced on 07.08.2017. Thereafter, I.A.Nos.19 to 21 are filed by the defendants/petitioners on 22.08.2017 for amendment of the written statement, impleading and production of documents. The said applications were resisted by the plaintiffs by filing statement of objections on 04.09.2017.
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NC: 2024:KHC-D:12957 WP No. 103212 of 2018 3.4. The Trial Court rejected the said applications by order dated 21.02.2018. Being aggrieved by the same, the present writ petition is filed by the defendants praying this Court to quash the order of rejection.
4. The main contention urged by the learned counsel for the petitioners is that;
4.1. The Trial Court has committed an error in rejecting I.A.No.19, which pertains to the counter claim of the defendants in respect of certain properties were to be included as counter claim suit properties and it was necessary for the adjudication of the dispute between parties. The Trial Court has also committed an error in rejecting I.A.Nos. 20 and 21 and no reasons have been assigned for rejection of the same. I.A.No. 20 was filed to implead the proposed party in whose name the properties stood, against which there is a -8- NC: 2024:KHC-D:12957 WP No. 103212 of 2018 counter claim and hence the impugned order is not sustainable in law.
4.2. The counsel also would contend that, by filing I.A.No.21, the petitioners have sought for production of the documents which are very much necessary to substantiate the counter claim and impleading of the party. The Trial Court ought not to have rejected the same. The Trial Court fails to take note of the fact that, though the suit was filed in the year 2011, the plaintiffs have amended the plaint three times. The petitioners have filed their additional written statement in the year 2015 and issues are also framed under the amendment of plaint as well as filing of additional written statement. There was no delay on the part of the petitioners in filing such applications and the Trial Court failed to see that the applications would not introduce -9- NC: 2024:KHC-D:12957 WP No. 103212 of 2018 entirely different or new case so as to displace the plaintiffs completely, but in turn it is to include suit properties which are not included by the plaintiffs. Hence the Trial Court committed an error which requires interference.
5. Per contra, counsel appearing for the respondents vehemently contended that;
5.1. The amendment is sought only after the commencement of the trial, after the examination of the plaintiffs and applications are also filed belatedly. The Trial Court rightly rejected the applications which have been filed. The properties which have been sought to be included are not in the name of the plaintiffs and only with an intention to protract the proceedings applications are filed as an after thought and the same has been taken note of by the Trial Court.
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NC: 2024:KHC-D:12957 WP No. 103212 of 2018 5.2. The counsel in support of his argument relied upon the judgment of the Hon'ble Apex Court in the case of Vijay Prakash Jarath Vs. Tej Prakash Jarath reported in (2016) 11 SCC 800, and brought to the notice of this Court the detailed discussion made in paragraph No.6 of the said judgment. So also the counsel brought to the notice of this Court paragraph No.8, wherein a discussion was made on the counter claim by defendant and also in paragraph No.10, when there was a delay in filing the application, issues were framed on 18.10.1993 was also discussed and delay also taken note of. The counsel also brought to the notice of this Court paragraph No.13, needless to mention, that it shall be open to the respondent-plaintiff to raise all pleas open to him through written statement which is filed by the respondent-plaintiff to the counterclaim.
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6. Having heard the petitioners' counsel and also the counsel appearing for the respondents and also taking note of the prayer sought in the applications, I.A.No.19 is filed invoking Order VI Rule 17 R/w. Section 151 of CPC, contending that the counter claim suit properties are also to be added as suit properties. The deceased defendant No.1 out of curtsey has purchased the counter claim suit properties in the name of plaintiffs No.1 and 2 and also in the name of one Adiveppa Shivappa Choudhari, who is the son of plaintiff No.1. Plaintiffs and son of plaintiff No.1 have started to act adverse to the interest of these defendants No.5 to 9 asserting their hostile title over the properties standing in their names. The other I.A. is also filed only to implead the son of the plaintiff No.1 in whose name the counter claim properties are standing and documents which have been sought to be produced are also to substantiate his contention.
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7. In the case on hand, it is to be noted that the suit is filed for the relief of declaration to declare that the plaintiffs are the exclusive owners of the suit schedule properties, in the alternative, if the Court comes to the conclusion that it is not a fit case to grant the relief of declaration, the court be pleased to grant the relief of partition. The prayer for amendment in the written statement claimed by the defendants also is to declare that the counter claim suit schedule properties are self-acquired properties of defendant No.1 and as such, defendants No.5 to 9 be declared as owners in possession of counter claim suit properties or in the alternative it is prayed that, in case the Court comes to the conclusion that it is not a fit case to grant declaration, under such circumstances, the court be pleased to award 1/6th share in the counter claim suit properties to the defendants No.5 to 9 jointly by effecting partition by metes and bounds.
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8. When the suit is filed for the relief of declaration and when the defendants already made counter claim by filing the written statement and having taken note of chronological events also, no doubt the applications are filed after commencement of the trial in the first week of August, the evidence was commenced on 07.08.2017 and immediately application was filed on 22.08.2017 on the very same month and issues were also framed on 08.07.2017. When such contention was raised and the amendment sought will not change the very nature of the suit and the defendants also filed a counter claim in respect of some of the items of the properties and the reason for impleading the son of the plaintiff No.1 is also that the properties stand in the name of the son of plaintiff No.1 and other documents also sought to be produced to substantiate his contention.
9. When the amendment sought will not change the very nature of the suit and the claim is also with
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NC: 2024:KHC-D:12957 WP No. 103212 of 2018 regard to claiming share in respect of some of the properties which ought to be included, the matter has to be considered to determine whether the parties are entitled for the relief as sought in the plaint or in the written statement, or not. In a suit for partition, both the plaintiffs and defendants are treated as plaintiffs only while deciding the share and when the plaintiffs also sought for the relief of declaration as the same are the self-acquired properties, whether the properties are self-acquired properties or not also to be decided by the Trial Court.
10. When such being the case, the Trial Court ought not to have rejected the application filed under Order VI Rule 17 of CPC and ought not to have rejected the application to implead the person in whose name the properties were standing and production of documents is also subject to proving of the case of the defendants. When such being the case, the Trial
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NC: 2024:KHC-D:12957 WP No. 103212 of 2018 Court has committed an error in rejecting the applications.
11. No doubt the counsel appearing for the respondents relied upon the judgment in case of Vijay Prakash Jarath (supra), and also brought to the notice of this Court the principles laid down in the judgment, wherein in paragraph No.6, extracting the paragraph No.15 of the judgment of K. M. Madapa case, it is observed that, it may be true that further litigation should be endeavoured to be avoided and further observation is that, joinder of several causes of action in a suit is permissible and the Court must, however, exercise the discretionary jurisdiction in a judicious manner. While considering that subservance of the justice is the ultimate goal, the statutory limitation shall not be overstepped. Grant of relief will depend upon the factual background involved in each case.
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12. Though such discussion was made, in view of the principles laid down in the judgment, the Court has to exercise its discretion judiciously and the said judgment is also helpful to the petitioners herein. Instead of making multiplicity of proceedings with regard to the counterclaim is also concerned, in the particular suit itself, the dispute between the parties could be considered and given finding on the issues involved between the parties. Hence it requires interference of this Court. Hence I pass the following:
ORDER i. Writ petition is allowed. ii. The impugned order dated 21.02.2018 passed by the Senior Civil Judge and JMFC, Mudhol, in O.S.No.17/2011 on I.A.Nos.19 o 21 are quashed. iii. Petitioners are permitted to file amended written statement with counterclaim and also permitted to
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NC: 2024:KHC-D:12957 WP No. 103212 of 2018 bring the impleading applicant on record and also permitted to produce the document as sought in I.A.Nos.19 to 21.
iv. The suit is of the year 2011 and the same is more than one decade old. Hence the Trial Court is directed to dispose of the suit within one year. v. The parties and their respective counsel are directed to assist the Trial Court in disposal of the case within a time bound period of one year. vi. Respondents/plaintiffs are also given opportunity to file rejoinder in respect of the claim made by the defendants within a period of one month from the date of receipt of copy of this order.
Sd/-
(H.P.SANDESH) JUDGE gab CT-MCK List No.: 2 Sl No.: 5