Karnataka High Court
Smt Anjanamma vs Sri M Revanna on 9 April, 2010
Author: B.Manohar
Bench: B.Manohar
INTTEIHKHICOURT(M?KARNATAKA,BANGALORE_2
DATED THIS THE 9m DAY OF APRIL, 2010 5 I
BEFORE
THE HON'BLE MR. JUSTICE B;MA--I\IO1'{AR_: V I H
WRIT PETITION NO.226S/2OOS(O'.M'-'CPO;_ -. «I " M
BEHNEEN
1 SMTANJANAMMA
W/O LATE PILIANJANAPPA
D/O LATE KAREPUITLAH :
KALKERE VILLAGE
K.R.PURAM HOB-LEI I
BANGALORE
BANGALORE-560 043 I PETITIONER
(BY SR1.SIIAI$IKARz;I:xIGAE;}RIAj"EA-GA.RAJ , ADVOCATE)
AND: V % % V %
1 SR1 M REVANNA
A 8/0 LATE-I: MADAPPAA:
AOEOIIAEIOu'~Ij4S YEARS.
. 2 'SRI:V?yAI'VB.'§ISI1§LV'A1'iAeJ
S /Q IATE 'KTMADAPPA
AGED.._AB_O{_J_T.»'45 YEARS.
--SR.'[ 1: C ..17>I.I'.t;LA MADAPPA
« 4' Siio LATE K MADAPPA
AGED ABOUT 55 YEARS.
2
4 SR1 K C PZLLA MACAPPA
S/O LATE KACHAPPA @ CHIKKA MADAPPA
AGED ABOUT 55 YEARS.
5 SR1 LAKKAPPA
S/O DODDA MADAPPA
AGED ABOUT 62 YEARS.
ALL ARE RESIDING AT
R/AT KALKERE VILLAGE, A
K.R.PURAM HOBLL
BANGALORES SOUTH TALUK .1 L -- A .1 1
BANGAORE 560 043. RE-SPQNDEN'i'S
{BY sRz.P_KR1sHNA1:->1>A FOR R1--5,.1AI5§{'OC;ATE)
THIS WRIT PETITEON FTLED1>RAY1A1xIG731fO'LQUASH THE
ORDER DT. 14.11.209%}.PASSED,=ON"'~!;j1~;ALN§}.22 ZN O.s.NO.
2611/93 ON ;ADD1T1O1\1AL CETY CIVIL JUDGE,
EANGAI1ORE'1T1(CCH.2j;V 'P]§OI )Ti( 3'ED As ANNEXURE-B, BY AN
APPROPRIATEFNRIT, DIRECTION AND GRANT
STAY THE, --QE?E1§A'If1DNv" OE ORDER DT. 14.11.2008
PASSED ILA.NQ.2fi ¥N'----€)'.'S.NO. 2611 /93 ON THE FILE OF
1 ADDITIONAL, C1*1Y'CmL JUDGE, BANGALORE (CCH--2].
TH1s MET 1éET1T1ON HAVING BEEN HEARD AND
RETSERVED AND'E'?{:NOM1NG ON FOR PRONOUNCEMENT OF
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner in this writ petition has _ quashing the order 14-11-2008 made on =_iri_:u '* O.S.No.26ll/1993 passed by the I:'»;Additionfa1.hf Judge, Bangalore, allowing the app1ir;;1tioni.iiled' nvndsg,-...,VQrderf VI Rule 17 of CPC. Petitioner 63.1.' in O.S.No.261 1/ 1993, now tran"s-posed__ats«:.6i5~Vpisfi11tiff.
2. The brief facts of the"eéise"a,r'e_ The ;;'lI: :,;"\to:t> "l1a.d"§ filed a suit in O.S.No.261 and separate possession of joint farnily lxproperties'~,to..--u~'fthe extent of l / 6 share to plaintiffs 'itoi ..y_l/llslia-re' to 4* plaintiff and l/ 6 share to the :,4"Plaj.¥1tiffs 1 to 5 have contended that the 'me,mbers family were enjoying the properties ' but ifi_yi~eW of the difference of opinion, they sought for .i_nf§the properties. Initially only respondents 1 to 3 xi« were made parties. Immediately on appearance of respondents 1 to 3, a compromise petition was filed on behalf of the plaintiffs 1 to 5 and defendants l to 3 contendingthat the plaintiffs and defendants have divided the it ancestral properties as per the memorandum"__of._:partition---.1 dated 18-5-1972 under Panchayat partition, the suit schedule properties the parties and all are in possessioii of lth.eir*V'respective shares. Accordingly, they fileda cornpi-o_I_ni's'ep petition before the court below on 22--éi_--1993.__ ll
3. who are also the family members came lIOlfli1'_lTOV'v*. lvabo-utvthe said compromise petition andlifiled an:'ap'pli(:ation tolllirnplead themselves as parties and opposedffor petition. They have contended in application there was no partition of the ancestral if plaintiffs 1 to 5 and defendants 1 to 3 with each other had filed the compromise petition. /g/V/_
4. When the matter stood thus, plaintiffs 1 to_"5, defendants I to 3 filed a Joint memo for dismissalbf ' as not pressed on the basis of the comp1'omise it by them. Accordingly, the learned I Judge by an order dated 4--6-- 1994 vJas..,p1ease.d' to the suit as not pressed. V
5. The 691 respondent 'in. thegivy-.sjuit-beiirg aggrieved by the order dated 46-14994} the. as not pressed filed RFA seeking to set aside the order 'i9v'93. This court by its order dated 2032 January vyas«"p1eased to dispose of the RFA whiie aside the orderdated 46-1994 and restored the suit on--.th._e Court with a direction to dispose of matteztxin ,__acc:ei'dance with law. Pursuant to the orders by this; court, the 591 defendant has filed written to the suit. Subsequently, 6"'? defendant was /iv 6 transposed as 601 plaintiff in the said suit. Plaintiff No.6 adduced evidence on 2-7-2003 as P.W.1 and she thoroughly crosseexarnined by plaintiffs 1 to 5 on 11-12-2003 and 29-1-04. Thereafter, plaintiff.l\I«o..uIj~ad-dueed;u evidence on behalf of plaintiffs 1 to 5 as -A subject himself for cross--exa1ninatio.n., th'o1._1'gi"3, has been granted to him. posted for arguments on 226-2006, .1' to 5 made an application for reca}1irigV_.the-"o1*d-er them to lead further eVidence__ 13-._.'W.'.2' crosswexainined in part. for further cross"
examination. Court discharged P.W.2. Once again an flapp1i'cati0i1Vé{3}as filed on 24---10~2007 for re€:"alli'ngVthe said"l'order.'vmA"ftfer prolonged adjournment, P.W.2 was 12-2-2008. On 1.9.2008 the plaintiffs e,?i"te 5 made a§1'ap~plication I.A.No.22 under order VI Rule 17 for aniendment of the plaint contending that during of Madappa who is the father of the plaintiffs, 7 there was partition of the joint family properties as per the memorandum of partition dated 18-5-1972, and respective parties took their possession and are said properties as per Scheduies--A, B, C and D_.~tc "
It is also contended that the proposed: if change the cause of action or natn're4.__of _ suit. subsequent facts that are being bro_ngh_t to the «-knnowplvedge of the court.
6. The to: 5 'that they were not aware of year 1972 until defendants 1 to their notice. Hence.
an application has'4"beve11e.rnadeffor amendment of the plaint. V. pp «,,c..;je*fendants objected for amendment of the Said Gib defendant filed written statement Vgcontendin'g.th.at' application for amendment of the plaint ' beponsidered as there is inordinate delay in filing the /$~ application and also there are no bonafide in the claim. it is also contended by the 6th defendant in the objection l.A.No.21 that she is also one of the family member.-sand'. V' entitled for share in the ancestral property. female member and accordingly, of"
said application. The learned Bangalore was pleased to allow the by its order dated 14--ll«~2008 ll were also permitted to produce by the order dated 14- 1 transposed as plaintiff No.6:v'tiil'ed' challenging the said order.
, learned counsel appearing for the petitioner..conteridedf'.c~th.at the order passed by the Trial Court proviso to Order VI Rule 17 of CPC. Proviso to if C)r;derVVlp""JI _'R1..1le:. 17 provides that -- no application for be allowed after the trial is commenced, A?
9 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 the trial. In the instant Hon'b1e court was pleased to allow the RFA on."
1995 and restored O.S.No.2611/1993., j:h,ereefter',- 7 plaintiff adduced evidence on 2--V"F}»2=Q.03V--a»nd examined by plaintiffs 1 to $5 on and 29-12004. Further the as P.W.2 on behalf of plaintiffs _l-- to after prolonged adjournm.»e4n&t.;ét,, 'commencement of the trial, the amendment of the plaint. The not produced any material to Show that _ diligence of the matter, the applicationctfore a'd.ditional'mgrounds cannot be made earlier. It is that in the year 1993 itself, defendants 5 \2ire«re awarelof the alleged partition deed of the year i Hence',»-- it is not open to them to make an application of the plafi/Lafter a lapse of 16 years.
9. Sri Nagaraj further contended that the Supreme Court in a Judgment reported in AIR" * in the case of VIDYABAI AND OTHERS If/'S R"
AND ANOTHER and another judgmentdeerepgfiedddihfhihz scw 513 in the case of AJENDR2xé¥{ASADJI. I\I.AVPANI--V)"E"Ai\¥D t V ANOTHER V/ S SWAMI 13.7%. AND OTHERS held that the statement cannot be permitted the trial. The Hon'b1e Supreme;'Co;u-,rt::tin__ v / s NANKHU AND 2346 has also held that the trialyvydiisdd when the issues are settled andpcaee do'wn'-fofsrecording of evidence. In View of-that-, the Cpe.ti',r.ioner hasddsought for allowing the writ petition and to-. passed y the Trial Court.
' "the other hand, Sri.P.Krishnappa appearing for 1 to 5 contended that there is no infirrnity or fix ii irregularity in the order passed by the Trial Court. Further although the petitioner/ 6th plaintiff is a family member, is not entitled for any share in the joint family _ she is a married daughter and is living They if leamed counsel relied upon the judgment KLJ 242 in the case of NARAYANA«-.ANI§"-Ol'HEi'{S' iv/st "Tl-1E'; LAND TRIBUNAL (IV), MANG.ALORE_ 'QTHER$:vin support of his contention.
11. I haveypejrused.{.the.:order the Trial Court and carefully"eorisideredfiy:the»..V.argurnenVts addressed by the learned petitioner as well as the Respondents, - 1 .12. fflhei _u11disputevcl...facts are that the plaintiffs 1 to 5 haVev'--fip1edTavsu.it'rfo'r:pari;ition and separate possession of the joint familyll propeiifties. if the joint family properties are .\ipl_\A.'?ga'dy diVid€e1fin the Qjiar 1972 by metes and bounds, the 12 plaintiffs I to 5 would not have filed the suit for partition and separate possession of the joint family properties. Further, the facts narrated above makes it clear that plaintiffs.' along with defendants l to 3 had filed a compromise,' "
on the basis of the alleged partition .f 1972. The suit filed by the plaintiffs'-ll to been dismissed as not pressed. The lvvalsivllchallenged before this Hon'ble court in This I-lon'ble Court allowed the on I 1995 and restored the suit, defendant transposed as 6111 plaintiff 6th plaintiff adduced evidence on was cross--examined by plaintiffs 15:9 5 ofi5}?-2003,Vi":-12-2003 and 29-1-2004 and p*lainttiff'i'has belenlexamined as P.W.2 on behalf of after the commencement of the trial, applica_tion' 'h;a*sffbeen filed for araendrnent of the plaint that there was already a partition of the joint 'fir'op'erties in the year 1972. If there was partition of /52 the joint family properties earlier, nothing prevented the respondents 1 to 5 to make necessary application"-Lfor amendment of the plaint. In the original plaint, ~ 5 sought for partition of the suit schedu1e_4prcper'ties» if the present application they have conteiided family properties have already beenbpartitioned and " if bounds and the respective members' finpossessioii of the property. Hence, there is .5,tand and the nature of the suit is allowed.
Further, no mate;riais*.have before the court to show that matter, additional grounds couid be Granting permission to amend the:.p1aintfl'at._thi~s'T'stAagevvould cause grievous prejudice tcjdipthe _petViti5oner..._ Mforeff over the amendment seems to introVdu:ce~_Vnevif-.ai'id'totally inconsistent case. The I-Ion'b}e d7JASupreme"'CoLirt a judgment referred to above clearly laid ' Iawdthat no application for amendment of the plaint "entertained firm commencement of the trial. Respondents 1 to 5 have not made out any compelling ' circumstances to show that in spite of due diligence' could not make necessary application prior §'ft'l1e"_"'*eé "
commencement of the trial.
13. The I-Ion'ble Supreme 'in a dudglneiltlldlieported in AIR 2009 so 1433 in the case OTHERS V/s PADMALATI-IA AND ANOTHER :c1e.é_.r13;.:r1%;e;d as follows:
7. By reasori_..__V fl't'€;}'_V:...__i.CiIdl'1'!_ irprocedure Code (Arnendrr1_e_r1t)"'~.Act:«:.,__2Ct)2::V(;}%Ct.:::,d32.E of 2002), the Parliament .a_' proviso to Order VI Rule 1 7 the Code; as under, A " Provided that no application for 'dmend.rrzent"'sha-ll' be allowed after the " trial :'hCI.S'..._COTTU?1BnC€d, unless the court " comes toxthe conclusion that in spite of . dilig=e_r'tc'e, the party could not have 'A raised' - the matter before the 'eonfitrfiiertcerrzent of trial"
" 'V-It couched in a mandatory form The court 'jurisdiction to allow such an application is é~ I5 taken away unless the conditions precedent therefor are satisfied, viz., it must come to conclusion that in spite of due diligence the pa;rtées;..__:_;' it could not have raised the matter before the-. ll" it commencement of the trial.
8. From the order passed.=by_ the e.le"arne,-1' Judge, it is evident that the respondents been able to fulfil the said prer-Cor'id'iiio'n..._ ' 'V The question, therefofreV,'- for consideration trial had commencedior it' The date on which = the date of first hearing;Provision;s.."Code of Civil Procedure envisage 'taking lofitsteps at different stages of the -proce4eding.~F'ilingl."of an affidavit in lieu of chiefrof the witness, in our opinion, "2 uwoitlde a--rnoi:;n,t°io_ commence merit o f proceed ing. "
l 14.A "wln ,_t3:1e,l'.lcircurI1stances, I am of the View that the it Vl;"3z1ss_ed. the court below is contrary to the Law iaid /5»