Karnataka High Court
K. N. Subrahmanya Adiga vs K. N. Parameshwara Adiga on 6 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2248
Author: Alok Aradhe
Bench: Alok Aradhe
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE ALOK ARADHE
WRIT PETITION NO. 52899 OF 2018 (GM-CPC)
BETWEEN:
K. N. SUBRAHMANYA ADIGA
AGE 36 YEARS,
S/O K.N.NARASIMHA ADIGA,
R/O KOLLUR VILLAGE & POST,
KUNDAPURA TALUK, UDUPI DISTRICT
PIN-576 220.
... PETITIONER
(By Sri. ASHOK HARNAHALLY, SR. ADV. FOR SRI. M.E.NAGESH,
ADV.)
AND
1. K. N. PARAMESHWARA ADIGA
AGE 58 YEARS,
S/O LATE NARSI SUBRAYA ADIGA,
2. SMT.KRISHNAVENI
AGE 53 YEARS,
W/O K.N.PARAMESHWARA ADIGA,
3. K.N.SHYAMA ADIGA
MAJOR,
S/O K.N.PARAMESHWARA ADIGA,
4. K.N.GOPALAKRISHNA ADIGA
AGE 65 YEARS,
S/O LATE NARSI SUBRAYA ADIGA,
5. K.N.NARASIMHA ADIGA
AGE 67 YARS,
S/O LATE NARSI SUBRAYA ADIGA,
2
6. SMT.KATHYAYINI
AGE 56 YEARS,
W/O VASUDEVA BHAT
R/AT KATTABELTHUR VILLAGE & POST,
KUNDAPUR TALUK, UDUPI DISTRICT
PIN-576 220.
7. SMT.SAVITRI
D/O LATE NARSI SUBRAYA ADIGA,
W/O BALACHANDRA ADIGA,
R/AT NO.1345, SOUTH LINK ROAD,
4TH CROSS, KRISHNAMOORTHYPURAM,
MYSORE-570 004.
8. BHAGIRATHI,
MAJOR,
D/O K.N.GOPALAKRISHNA ADIGA,
9. K.N.GOVINDA ADIGA
AGE 60 YEARS,
S/O LATE K.N.KRISHNA ADIGA,
10. K.N.SEETHARAMA ADIGA
AGE 58 YEARS,
S/O LATE K.N.KRISHNA ADIGA,
11. K.N.SRIKANTHA ADIGA
AGE 56 YEARS,
S/O LATE K.N.KRISHNA ADIGA,
12. K.N.THIMMAPPA ADIGA
AGE 52 YEARS
S/O LATE K.N.KRISHNA ADIGA,
13. K.N.CHANDRASHEKARA ADIGA
AGE 51 YEARS,
S/O LATE K.N.KRISHNA ADIGA,
14. SMT.VARADAMBIKA
AGE 51 YEARS,
D/O LATE K.N.KRISHNA ADIGA,
15. SARASWATHI
AGE 70 YEARS,
WIDOW OF N.TRIVIKRAMA ADIGA,
3
16. K.N.VISHWANATHA ADIGA
AGE 45 YEARS,
S/O N.TRIVIKRAMA ADIGA,
17. K.N.VASANTHA ADIGA
AGE 45 YEARS,
D/O N.TRIVIKRAMA ADIGA,
18. K.N.SRINATHA ADIGA
AGE 40 YEARS,
S/O N.TRIVIKRAMA ADIGA,
19. SMT.JAYALAKSHMI ADIGA
AGE 80 YEARS,
W/O LATE K.N.KRISHNA ADIGA,
20. KUMARI VANI
AGE 33 YEARS,
D/O GOVINDA ADIGA,
21. KUMARI VRINDA
AGE 29 YEARS,
D/O GOVINDA ADIGA,
RESPONDENTS NO.1 TO 5 & 8 TO 21 ARE
R/AT KOLLUR VILLAGE,
KUNDAPUR TALUK,
UDUPI DISTRICT PIN-576 220.
... RESPONDENTS
(By Sri. CHANDRANATH ARIGA.K, ADV. FOR C/R-9)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE,
KUNDAPUR IN IA 22/2018 IN OS NO.12/2010 DATED
06.10.2018 AS PER ANNEXURE-J.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
4
ORDER
Mr.Ashok Haranahalli, learned Senior counsel for Mr.M.E.Nagesh, learned Counsel for the petitioner.
Mr. Chandranath Ariga.K, learned Counsel for the respondents.
The petition is admitted for hearing. With the consent of learned Counsel for the parties, the matter is heard finally.
2. In this writ petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 6.10.2018 passed by the trial Court, by which the counter claim and amendment of pleadings in the written statement filed by defendant No.9 has been allowed at the stage of cross-examination of defendants' witness No.1. In order to appreciate the petitioner's challenge to the impugned order, few facts need mention which are stated infra.
5
3. Petitioner filed a Civil Suit seeking relief of declaration and partition of suit schedule properties on 18.10.2010. The defendants, on receipt of summons, filed the written statement in the year 2011. Thereafter, on 18.09.2018, defendant No.9 filed an application for amendment of the pleadings, by which the relief of declaration was sought to be incorporated in the written statement to declare that the partition deed dated 2.03.2006 is binding on the parties to the Suit and to include the hereditary pooja rights of Sri Kolluru Mookambika Temple, as schedule 'B' to the Suit and to divide the property described in Schedule 'B' to the Suit in three equal shares. The petitioner filed objections to the aforesaid application and it was pointed out that the pooja rights of the Temple in question was subject matter of W.P.Nos. 43922/2011 and 4214/2015 and this Court, by order dated 16.12.2015, directed the Deputy Commissioner, Hindu Religious and Charitable Endowment, Udupi, to decide the rights of the parties. 6 It was further submitted that the issue with regard to pooja rights cannot be made subject matter of the suit. The trial Court, by order dated 6.10.2018, inter alia held that Archakship right is a property right and can be partitioned inter se between the family members. It was further held that the issue with regard to proposed amendment appears to be within limitation under Article 109 and 110 of the Limitation Act, 1963. Accordingly, the application was allowed. In the aforesaid background, the petitioner is before this Court.
4. Learned Senior counsel for the petitioner submitted that the Civil Suit was filed in the year 2010 and defendant No.9 had filed written statement on 22.01.2011. It is further submitted that thereafter, on 20.09.2018 i.e. after a period of approximately eight years of filing of the written statement, an application for amendment was filed, by which, the counter claim 7 was sought to be amended. It is also submitted that the aforesaid amendment is prima facie barred by limitation in view of Order VIII Rule 6-A of the Code of Civil Procedure. It is also argued that the trial Court failed to examine the aforesaid aspect of the matter. It is also urged that even assuming that defendant No.9 was waiting for withdrawal of the Suit, which was withdrawn in the year 2013, yet the aforesaid application for amendment was filed in the year 2018 i.e. after a period of five years. The impugned order, therefore, suffers from an error apparent on the face of the record, as well as jurisdictional infirmity.
5. On the other hand, learned counsel for respondent No.9 submitted that plaintiff's father had filed Civil Suit in O.S.No.72/2006 which included all the properties. The aforesaid Civil Suit was withdrawn on 13.02.2013 and thereafter, defendant No.9 who has been arrayed as respondent No.9 in this petition, filed 8 an application seeking amendment on 12.02.2018. It is further submitted that respondent No.5 did not raise any counter claim as the counter claim was already raised in the original written statement, which was filed by respondent No.9. It is further submitted that the trial Court has taken into account the fact that the Suit is one for partition and it must include all the properties. It is also pointed out that the trial Court has recorded a finding that the application filed by the petitioner is within limitation in view of Articles 109 and 110 of the Limitation Act, 1963. It is also submitted that the proposed amendment does not cause any injustice or prejudice to the other side.
6. In support of the aforesaid submissions, reference has been made to the decision of the Supreme Court in the case of Gurubakhsh Singh and others - vs- Buta Singh and another [AIR 2018 SC 2635]. 9
7. I have considered the submissions made on both the sides.
8. The Supreme Court in the case of South Konkan Distilleries and another -vs- Prabhakar Gajanan Naik and others [(2018)14 SCC 632] has held that if an application for amendment is within limitation, the Court should liberally allow the same if it is necessary for just and fair decision of the Suit. It has been further held that if the claim made in the application for amendment is barred by limitation, in such a case, the Court should reject the application for amendment. However, where the question of limitation is arguable, the application for amendment should be allowed and issue should be framed in this regard.
9. Order VIII Rule 6-A of the Code of Civil Procedure, which is relevant for the purpose of controversy involved in this petition is reproduced below for ready reference:
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"6-A. Counter-claim by defendant - (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court."
10. In the backdrop of aforesaid well settled legal position and facts of the case, the present case is examined.
11. In the instant case, admittedly, defendant No.1 had filed written statement on 22.01.2011. Thereafter, the plaintiff had lead the evidence and 11 defendant No.1 was sought to be cross-examined and at the stage of cross-examination of defendant No.1, an application for amendment was made, by which the counter claim which was initially made in the written statement by respondent No.9 was sought to be amended. From close reading of the order passed by the trial Court, it is evident that the trial Court has nowhere recorded a finding that defendant No.9, notwithstanding exercise of due diligence, would not have made an application for amendment before commencement of the trial. Besides that the trial Court has also not taken into account the provisions contained in Order VIII Rule 6-A of the Code of Civil Procedure. The trial Court has also not recorded a finding whether or not a debatable question with regard to limitation in respect of the claim made in the application for amendment. Amendment has been made out by defendant No.9. The trial court ought to have decided the application for amendment in the light 12 of the law laid down by the Supreme Court in the case of South Konkan Distilleries (supra), which has not been done.
12. So far as reliance placed by learned counsel for respondent No.9 in the case of Gurubakhsh Singh (Supra) is concerned, it is pertinent to note that in the aforesaid decision itself the Supreme Court has held that if an application for amendment is made after commencement of the trial, it has to be shown that inspite of due diligence, it could not have been made earlier. The trial Court has nowhere recorded such a finding.
13. In view of preceding analysis, the impugned order dated 6.10.2016 passed by the trial Court is hereby quashed and set-aside. The trial Court is directed to decide the application filed by respondent No.9 afresh, in the light of the observations made supra, 13 within a period of four weeks from the date of receipt of certified copy of the order passed today.
Accordingly, the petition is disposed of.
Sd/-
JUDGE ln.