Karnataka High Court
Smt Hamsa vs Smt Papamma Alias Ammani @ Karupathal on 18 August, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.16397/2018 (GM-CPC)
BETWEEN:
SMT. HAMSA
W/O. LATE D.R. SHEKAR,
D/O. LATE GOPALA MESTRI,
AGED ABOUT 46 YEARS,
RESIDING AT MUNESHWARANAGARA,
7TH CROSS, WIDIA FACTORY BEHIND,
NAGASANDRA POST,
BENGALURU - 560 073. ... PETITIONER
(BY SRI B.M. GUNJAL, ADVOCATE)
AND:
1. SMT. PAPAMMA ALIAS AMMANI @ KARUPATHAL
W/O. LATE GOPAL MESTRI,
AGED ABOUT 73 YEARS,
2. SRI LOKANATHA
S/O. LATE GOPAL MESTRI,
AGED ABOUT 53 YEARS,
3. SMT. SELVI
D/O. LATE GOPAL MESTRI,
AGED ABOUT 49 YEARS,
4. KUMAI NITYASHREE
D/O. SMT. SELVI,
AGED ABOUT 23 YEARS,
5. KUMAI NIKITHA
D/O. SMT. SELVI,
AGED ABOUT 21 YEARS,
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6. SRI JAGANNATHA
S/O. LATE GOPAL MESTRI,
AGED ABOUT 45 YEARS,
7. SMT. GOMATHI
D/O. LATE GOPAL MESTRI,
AGED ABOUT 43 YEARS,
ALL ARE RESIDING AT
MURUGAN PRASAD HOUSE
COURT ROAD,
SANJAYANAGARA,
BELATHANGADY KASABA HOBLI,
BELATHANGADY TALUK,
DAKSHINA KANNADA DISTRICT,
PIN CODE - 574 214. ... RESPONDENTS
(BY R-1, R-2, R-4, R-5 AND R-7 ARE SERVED;
MR. DEEPAK WAGLE, ADVOCATE FOR MR. A. KESHAVA
BHAT, ADVOCATE FOR R-3 AND R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR ENTIRE RECORDS MAINTAINED IN O.S.NO.69/2015 ON
THE FILE OF THE PRINCIPAL SENIOR CITY CIVIL JUDGE AND
JMFC AT BELTHANGADY, DAKSHINA KANNADA; AND QUASH
THE ORDER PASSED BY THE PRINCIPAL SENIOR CITY CIVIL
JUDGE AND JMFC AT BELTHANGADY IN O.S.NO.69/2015 ON
DATED 26.03.2018 ON ORDER OF DISMISSED THE I.A.NO.8
I.E., ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The present writ petition is preferred by the plaintiff assailing the Order dated 26.03.2018 passed on I.A. No.VIII in O.S. No.69/2015 on the file of the -3- Principle Senior Civil Judge and JMFC, Belthangady, Dakshina Kannada (hereinafter referred to as 'the Trial Court' for short), whereby the application filed by the plaintiff under Order VI Rule 17 of CPC seeking permission to amend the plaint has been dismissed by the Trial Court.
2. Heard the learned counsel for the petitioner/plaintiff and learned counsel for the respondents/defendants.
3. The suit in OS No.69/2015 is filed for partition and separate possession and for other consequential reliefs against the defendants in respect of suit schedule properties. Defendant Nos.2 and 3 appeared and filed their written statement denying the plaint averments.
4. When the matter was set in for further evidence of plaintiff, plaintiff filed I.A. No.VIII under -4- Order VI Rule 17 of CPC seeking to amend the plaint by adding facts at paragraph Nos.8 (a) and (b) after paragraph No.8 and prayer (a) seeking equal share in Bank guarantee and 12 FDR amount of Rs.18,00,000/- and allot 1/6th share with interest at 15% p.a. from 20.08.2011 till realization, stating that earlier suit OS No.32/2013 filed by plaintiff seeking share in respect of FDR amount of Rs.18,00,000/- was dismissed as not maintainable with liberty to include the schedule property of OS No.32/2013 in the present OS No.69/2015.
5. The defendants filed objections to said I.A. No.VIII stating that the application is filed after commencement of evidence and no averment is made in the affidavit accompanying I.A. No.VIII that inspite of due diligence the plaintiff could not seek amendment before commencement of evidence and sought to dismiss the application. The trial Court -5- rejected I.A. No.VIII holding that evidence has commenced and no prima-facie case is made out that the property sought be included is joint family property.
6. Aggrieved by the said order, the plaintiff has preferred the present petition.
7. Sri. B.M. Gunjal, learned counsel for the petitioner would submit that the present application filed under Order VI Rule 17 of CPC is sought to insert facts and prayer to include FDR amount of Rs.18,00,000/- seeking equal share in view of liberty granted in OS No.32/2013 and sought to allow I.A. No.VIII. It is the contention of the learned counsel for the petitioner that the Trial Court has erroneously dismissed the application filed by the petitioner without considering the fact that the defendants had consented for including the schedule property in OS -6- No.69/2015. and thus, sought to allow the writ petition.
8. Per contra, Sri. Deepak Wagle, learned counsel on behalf of Sri. A. Keshava Bhat, learned counsel for respondent Nos.3 and 6 would justify the order passed by the Trial Court on I.A. No.VIII and contended that same does not call for any interference by this Court. It is contended by the learned counsel that the plaintiff has not made out a case to include the schedule property in the present suit as the application for amendment is filed after commencement of trial and sought to dismiss the writ petition.
9. Heard the learned counsel for the parties and considered the rival contention and perused the material on record.
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10. It is relevant to note that the Trial Court by order dated 26.03.2018 has rejected the application- I.A. No.VIII on the ground that the present application does not survive for consideration either in law or on facts, without considering the judgment and decree dated 14.12.2017 passed in OS No.32/2013, whereby, the Court has dismissed the suit of the plaintiff with a liberty to include the properties by way of amendment in the present suit. The relevant portion of the order reads as under:
"19. Further the counsel for defendants also submitted that, the defendants are ready to give consent for implead the schedule property of this suit, in the said suit, so there may not to be any objections from the defendants side, if the plaintiff is directed to add schedule of the suit in the said suit with permission of Hon'ble court and not much hardship will be caused to plaintiff. Hence without deciding the case on merits by discussing oral and documentary evidences of both parties, if the suit is -8- dismissed on the ground of suit for partial partition is not maintainable, no hardship will be caused to plaintiff, as she has the liberty to agitate whatever the claim made in this suit in the said pending suit. Therefore no findings are given in respect of all the issues instead answered as "do not survive for consideration"
except additional issue. As stated above, from fast many hearings, there was no representations from the plaintiff's side to make known to plaintiff about to framing of additional issue that, whether plaintiff proves that, the suit for partial partition is maintainable without including all the movable and immovable properties of joint family which are in the knowledge of the plaintiff even at the time of filing this suit and also O.S. No.69/2015, but plaintiff failed to convince the court. Therefore the above addl. Issue is answered in the Negative, and I proceed to pass following;
ORDER
The suit is dismissed subject
following directions;
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The plaintiff is hereby directed to add the suit schedule property of this case in O.S. No.69/2015 on the file of Principal Senior Civil Judge, Belthangady, if she is advised to do so and with the permission of Hon'ble Court.
Parties to bear their respective cost under the circumstance of the case.
Office to draw decree accordingly."
(Emphasis supplied)
11. The above order dated 14.12.2017 has attained finality. In order to appreciate the facts in the present case Order VI Rule 17 needs to be emphasized, which reads as under:
"17. Amendment of Pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
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Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
12. The bare perusal of this provision, it is translucently clear that order VI Rule 17 of CPC consists of two parts.
(1) That the Court may at any stage of proceeding allow either party to amend his pleadings.
(2) That such amendment shall be made for the purpose of determining the real controversies between the parties.
13. Therefore, in view of the provisions under Order VI Rule 17 of CPC, it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such
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terms as it appears to the Court just and proper. By way of amendment to CPC, Act 2002 to Order VI Rule 17, which restricts the Court from permitting an amendment to be allowed in pleading either to the parties, if at the time of filing application for amendment, the trial has already commenced. However, Court can allow amendment, if it is satisfied that in spite of due diligence, the party *could not have raised the matter before the commencement of trial.
14. In the present case, though the application is filed after commencement of evidence, the amendment sought is in view of the liberty granted in OS No.32/2013 vide order dated 14.12.2017 and I.A. No.VIII for amendment was filed on 09.02.2018 and in view of the proviso to Order VI Rule 17, the amendment sought for could not be availed at the earliest as the liberty was granted only on 14.12.2017. Thus the reasoning of the trial Court that *Correction carried out V.C.O. dated 09/09/2022
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application for amendment after commencement of evidence cannot be considered and thus rejecting the application is not sustainable, as inspite of due diligence the defendant could not have raised the matter before the commencement of trial. Moreover the application does not change the nature of the pleadings or introduce new cause of action, it is only addition of certain properties in the plaint schedule properties nor any serious prejudice will be caused to the defendants if proposed amendment is allowed and it is always open for the defendants to file additional written statement.
15. In the light of the reasons stated supra, this Court is of the considered view that I.A. No.VIII seeking amendment of plaint needs to be allowed in the facts and circumstances of the case and rejection of I.A. No.VIII under Order VI Rule 17 of CPC is without any justifiable reasons.
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16. In the result, this Court pass the following:
ORDER i. The writ petition is allowed.
ii. Order dated 26.03.2018 passed by the Trial Court on I.A. No.VIII in OS No.69/2015 is hereby set-aside and I.A. No.VIII for amendment of the plaint is allowed and plaintiff is permitted to amend the plaint as stated in I.A. No.VIII.
iii. Liberty is always reserved to the respondents/ defendants to file additional written statement, if any, in accordance with law.
No order as to costs.
SD/-
JUDGE MBM