Karnataka High Court
Sri R D Suresh @ Manjunath vs Sri R A Manjunath on 24 June, 2015
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE 2015
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITIONS NO.34252-57 OF 2014 (GM-CPC)
BETWEEN:
1. SRI R D SURESH @ MANJUNATH
S/O LATE R.S.DEVENDRA
AGED ABOUT 53 YEARS,
R/AT NO.168, NO.222,
36TH A CROSS, 7TH BLOCK,
JAYANAGAR, BANGALORE.
2. SMT. NAGARATHNA
W/O LATE R.S.DEVENDRA
AGED ABOUT 72 YEARS,
R/AT NO.1014/D, 38TH CROSS,
25TH MAIN, 4TH T -BLOCK,
JAYANAGAR, BANGALORE.
3. SMT.RATHNA BAI
W/O LATE SRI.R.S.DEVENDRA
AGED ABOUT 78 YEARS,
R/AT NO.1014/D, 38TH CROSS,
25TH MAIN, 4TH BLOCK,
JAYANAGAR, BANGALORE.
4. SRI.R.D.AJITH PRASAD
S/O LATE R.S.DEVENDRA
AGED ABOUT 54 YEARS,
R/AT NO.1014/D, 38TH CROSS,
25TH MAIN, 4TH T -BLOCK,
JAYANAGAR, BANGALORE.
5. SRI.R.D.SUNIL
S/O LATE R.S.DEVENDRA
AGED ABOUT 52 YEARS,
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R/AT NO.1014/D, 38TH CROSS,
25TH MAIN, 4TH T -BLOCK,
JAYANAGAR, BANGALORE.
6. SRI.R.D.RAJESH
S/O LATE R.S.DEVENDRA
AGED ABOUT 46 YEARS,
R/AT NO.1014/D, 38TH CROSS,
25TH MAIN, 4TH T -BLOCK,
JAYANAGAR, BANGALORE. ... PETITIONERS
(BY SRI.SREEVATSA, SR. ADV. FOR
SRI.L K SRINIVASA MURTHY - ADV. )
AND:
1. SRI R A MANJUNATH
S/O LATE R.S.AMARENDRA
AGED ABOUT 50 YEARS,
R/AT NO.22, 3RD CROSS,
M.G.ROAD, K.R.EXTENSION,
TUMKUR.
2. SRI.R.A.PRAKASH
S/O LATE R.S.AMARENDRA
AGED ABOUT 47 YEARS,
R/A NO.22, 3RD CROSS,
M.G.ROAD, K.R.EXTENSION,
TUMKUR
3. SRI.R.S.SURENDRA
S/O LATE R.V.SURAPPA
AGED ABOUT 81 YEARS,
R/AT NO.582, 10TH MAIN
5TH BLOCK, JAYANAGAR,
BANGALORE. ... RESPONDENTS
(BY SMT : D GEETHA, ADV. FOR R1;
SRI.M.S.RAJENDRA PRASAD, SR. ADV. FOR
SRI.SHIVA REDDY R, ADV. FOR R2;
SRI.M.SHIVAPRAKASH - ADV. FOR R3)
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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 24.6.2014 AND SIGNED ON 25.6.2014 I O.S.
214/95 ON I.A. U/O VIII RULE 8 R/W SEC. 151 CPC PASSED BY
THE 2ND ADDL. SENIOR CIVIL JUDGE AND JMFC, TUMKUR AS
CONTAINED IN ANN-T.
THESE WRIT PETITIONS COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY AFTER HAVING HEARD AND RESERVED FOR
ORDERS ON 20.04.2015, THE COURT MADE THE FOLLOWING:
ORDER
These writ petitions are filed by the defendants No.(1)(a), 2(a), 2(b), 2(c), 2(e) and 2(f) in O S No.214/1995 on the file of the 2nd Additional Senior Civil Judge & JMFC, Tumkur being aggrieved of the order dated 24.6.2014 passed on I A filed by the third defendant therein under Order VIII Rule 8 r/w Section 151 of the Code of Civil Procedure, 1908. The court below allowed the application and permitted the third defendant to file separate written statement.
2. The facts in brief are that the plaintiff filed the suit for partition and separate possession of his one-fourth share on the ground that the properties are ancestral and joint family properties.
3. The defendants 1 to 5 filed common written statement contending that item Nos.1(a), 1(b) and IV i.e., Sy.Nos.26, 14 and 11 of Agalakok village and item Nos.2(a), 2(b) i.e., House Nos.21 4 and 22 at Tumkur Town are not ancestral and joint family properties, but self-acquired properties of late R V Surappa, father of plaintiff, defendants 1 and 2 and grandfather of defendants No.3 & 4. He left behind holographic Will dated 3.5.1969 bequeathing the same to defendant Nos.1 to 4. That partition took place in 1988 in terms of the said Will and respective parties are in possession and enjoyment of their respective shares of properties.
4. The 4th defendant filed Additional written statement seeking to assert counter claim under Order VIII Rule 6A, 6B and 8 of Code of Civil Procedure which came to be dismissed by the trial court on 24.11.2009. On 7.2.2009 the third defendant filed I A seeking leave of the Court to file Additional Written Statement along with Additional Written statement under Order 8 Rule 9 of Code of Civil Procedure pertaining to theme of codicil of late Surappa. The trial court allowed the said application by the order dated 31.7.2009 which came to be challenged in W P Nos.18767- 68/2010. This Court by the order dated 27.7.2010 allowed the writ petitions and set aside the additional written statement so far as it relates to codicil, but however reserved liberty to file application for amendment under order VI Rule 17 of Code of Civil Procedure. 5
5. Accordingly, the third defendant filed I A seeking for amendment on 23.8.2010 seeking to incorporate the pleadings relating to codicil, which were rejected by this Court. The trial court by the order dated 8.10.2010 allowed the amendment application.
6. Challenging the above order, W P No.33997/2010 was filed before this Court. This Court by the order dated 27.3.2014 allowed the said writ petition and set aside the order of the trial court allowing application for amendment.
7. As a next resort, the defendant No.3 filed IA under order VIII Rule 8 r/w Section 151 of Code of Civil Procedure seeking leave of the trial court to file separate writ petition. The trial court allowed the said application and permitted to file separate written statement. Aggrieved by the same, the present writ petitions are filed.
8. I have heard the learned senior counsel for the petitioners, learned counsel for the respondent No.1, learned senior counsel for R-2 and learned counsel for respondent No.3 and perused the entire records.
9. The learned senior counsel for the petitioners submitted that a definite and unequivocal stand taken by the third defendant 6 along with the other defendants in the common written statement cannot be taken away and entirely new theory cannot be allowed to be urged. The third defendant is estopped from resiling or sidetracking the earlier stand. It is submitted, under Order 8 Rule 8 of Code of Civil Procedure only subsequent event by way of set off or counter claim may be raised. But the pleadings sought to be raised by way of separate written statement does not amount to set off or counter claim. The application filed by the 4th defendant under order 8 Rule 6A, 6B, and 8 of Code of Civil Procedure is already dismissed by the trial court, which has become final. The third defendant cannot be permitted to raise identical contentions which he had sought in his additional written statement under Order 8 Rule 9 of Code of Civil Procedure and also by way of amendment, both the applications were allowed by the trial court but set aside by this Court in W P Nos.18767-768/2010 (GM-CPC) and W P No.33997/2010 (GM-CPC ) respectively.
10. It is submitted, by way of separate written statement, the third defendant wants to claim right over landed property as if his father late A S Amarendra had one-fourth share who died intestate and there is no partition in 1988 amongst legatees in terms of the Will dated 3.5.1969, which amounts to withdrawal of admissions which is impermissible. It also results in permitting a party to take 7 up totally contradictory and mutually destructive stands, seriously prejudicing the interest of co-defendants. It is also submitted, as L.Rs. of defendant No.1, the defendant No.3 & 4 are entitled to prosecute, continue or defend the suit in the same character as the deceased defendant No.1 and cannot take a different and contradictory stand. Attempt to file separate written statement is to avoid the legal bar under Order 22 Rule 4(2) of Code of Civil Procedure.
11. It is also submitted that the proposed separate written statement lacks bona fides as the third defendant had knowledge of the proposed pleadings even while defendant No.1 was alive. The proposed action on the part of the third defendant is hit by the principles of res judicata. Hence the learned senior counsel submits to set aside the impugned order by allowing the present writ petitions.
12. The learned senior counsel for the petitioners placed reliance on the following authorities:
(a) Revanasiddappa & others vs., Siddaramappa, reportedin 2005(3) Kar.L.J. 629 to contend that once written statement is filed by a party, joint written statement in the present case, cannot be 8 replaced by another written statement or separate written statement.
(b) Nalamothu Saibabu Naidu vs., Chidipothu Krishnaiah, reported in AIR 2003 A.P. 412 to contend that pleadings should not be at variance with the original pleadings and there cannot be any departure from the original pleadings.
(c) Hope Plantations Ltd., Vs., Taluk Land Board, Peermade & another, reported in (1999) 5 SCC 590 to contend that finding on interlocutory applications having become final is res judicata, which cannot be re-agitated at a later stage of same proceedings.
(d) R M Nagaraj v., Smt.B Lakshmamma & others, unreported judgment in W P No.12572/2008 (GM-CPC) in support of the contentions that to make a new and contradictory claim long after filing of the original written statement contradicting and nullifying the definite stand taken therein and prejudicing the rights accrued to other parties by efflux of time cannot be allowed.
(e) Andhra Bank Ltd., vs., R Srinivasan & others, reported in AIR 1962 SC 232 in support of the contention that legal representatives cannot take any plea which the deceased had not or could not have taken and that the LRs. step into the shoes of the deceased.9
13. On the other hand, the learned counsel and senior counsel for the respondents submit to dismiss the writ petitions. It is submitted, the jurisdiction of this Court under Article 226 of the Constitution is only supervisory in nature and the High Court could interfere with the order of the subordinate courts only when the error of law is apparent on the face of the record, when there is violation of principles of natural justice and a patent or flagrant error in procedure is found in the case and the order resulting in manifest injustice. The learned senior counsel relied upon the following authorities:
(a) Chandigarh Administration Vs., Manpreet Singh, reported in AIR 1992 SC 435 in support of the contention that power of the High Court is supervisory in nature.
(b) Satyanarayana Laxminarayan Hegde vs., Mallikarjuna Bhavanappa Tirumale, reported in AIR 1960 SC 137(142) in support of the contention eror of law apparent on the face of the record.
(c) D N Banerjee vs., P R Mukherjee, AIR 1953 SC 58, in support of the contention that high court can interfere when there is violation of principles of natural justice, this Court can interfere.
(d) Trimbak Gangadhar Telang vs., Ramchandra Ganesh Bhide, reported in AIR 1977 SC 1222 in support of contention, 10 patent or flagrant error in procedure and order resulting in manifest injustice, this court's interference is warranted.
14. The point that arises for consideration is, whether the impugned order passed by the court below permitting filing of separate written statement by the third defendant calls for interference by this Court? My answer would be in the affirmative for the following reasons.
15. In this case, as already stated, the defendant No.3 has made three attempts to bring on the same pleadings. Initially by way of additional written statement, next by way of amendment and now by way of a separate written statement. On the two occasions, the orders passed by the trial court allowing additional written statement and allowing amendment application were subject matter of writ petition Nos.18767-768/2010 and W P No.33997/2010. This court by the order dated 27.7.2010 and 27.3.2014 respectively set aside both the orders. Now by way of the present application, the third defendant wanted to bring on record the same pleadings but by way of separate written statement, which is also allowed by the court below by the impugned order.
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16. It is to be mentioned here that the third defendant joined defendants 1 & 2 and 4 & 5 and filed common written statement and pleaded earlier partition in the year 1988 among the legatees by virtue of the Will dated 3.5.1969. Now the present application is filed by the defendant No.3 alone to contend right over landed properties in question as if his father late R S Amarendra had one- fourth share who died intestate, there is no partition in 1988 amongst legatees basing the said claim on the basis of codicil dated 10.6.1969 said to have been executed by Sri R V Surappa, now deceased. The third defendant stated that he noticed the codicil only when the room of R V Surappa was cleaned up on 11.3.2008.
17. In the order passed in W P No.18767-768/2010 (GM-CPC) and connected matters disposed of on 27.7.2010 in Para-12, it is stated as follows:
"12. The them of the codicil is raised for the first time in the additional written statement. I therefore set aside that part of the trial Court's order permitting the additional written statement, which pertains to the codicil. In all other respects, the Trial Court's order and the consequent filing of the additional written statement are left undisturbed".
Therefore, it is clear that averment relating to codicil is rejected by this Court in the above order.
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18. In the order dated 27.3.2014 passed in W P No.33997/2010 (GM-CPC) in Para-28, this is what stated by this Court:
"28.......when joint written statement has been filed, one of the defendants cannot be allowed to take inconsistent stand without the consent of the other defendants. The co-defendants are disputing the codicil. Therefore, the Trial Court was not justified in allowing the application. While it is true, amendments have to be considered liberally. But, it depends upon the facts and circumstances of each case. In the present case, the proposed amendment lacks bona fides and it is highly belated. Therefore, the impugned order cannot be sustained in law."
19. Therefore, it is clear that the averments relating to codicil is already rejected and it is held to be belated. In none of the provisions of Code of Civil Procedure, it is provided for replacement of the written statement filed by a party. The separate written statement sought to be filed by the third defendant is inconsistent and in complete variance with the averments made in the joint written statement filed by him along with the other defendants. The other defendants are not in agreement with the theory of codicil and they are the petitioners in the present writ petitions.
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20. When right of the third defendant to bring on record the averments sought to be raised in the separate written statement is already concluded not once but twice by this Court, the said issue cannot be sought to be decided once again as it is hit by the principles of res judicata. The third defendant is also a legal heir of defendant No.1. When defendant No.1 himself could not take the contention of codicil and though the codicil itself is dated 10.6.1969 and the first defendant died on 11.3.2008, the third defendant is not entitled to take a different contention than that of the first defendant as his Legal Representative.
21. The learned counsel and senior counsel for the respondents submit that there is no patent illegality or violation of principles of natural justice in the impugned order and only an opportunity is given to the party to bring on record the subsequent event and therefore this court cannot interfere in such matters under its supervisory jurisdiction. I have given my anxious consideration to the contentions and the authorities on which reliance was placed and I am of the view that the third defendant alone is not legally entitled to file a separate written statement when he has already filed 14 joint written statement and the said other defendants are not in agreement with the proposed pleadings which are in complete variance from the original pleadings, this court is definitely entitled to interfere with such an order to correct the same. The trial court has proceeded only on the basis that if the third defendant is not provided opportunity to bring on record the proposed averments by way of separate written statement, it would lead to multiplicity of proceedings. The court below has failed to consider the other facts of the case where the third defendant has already filed common written statement, other defendants are not in agreement with the proposed pleadings, delay in filing such application, proposed pleadings being in complete variance with the original pleadings and the principles of res judicata.
22. For the above reasons, I am of the view that the impugned order suffers from legal infirmity, liable to be set aside.
23. In the result, these writ petitions are allowed. Impugned order is set aside.
Sd/-
JUDGE akd