Karnataka High Court
Shivaputra Ishwarappa Heddurashetti vs Veerabhadrappa Ishwarappa ... on 17 July, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 17th day of July, 2013
Before
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION No. 77093/2013 (GM-CPC)
BETWEEN:
SHIVAPUTRA ISHWARAPPA HEDDURASHETTI
AGE: 77 YEARS, OCC: RETIRED
R/O. HEDDURASHETTI GALLI,
SANKESHWAR - 591313
TQ: HUKKERI
DIST: BELGAUM .. PETITIONER
(By Sri : B S KAMATE, ADVOCATE)
AND
1. VEERABHADRAPPA ISHWARAPPA
HEDDURASHETTI
AGE: 71 YEARS, OCC: PENSIONER
R/O. MARUTI GALLI,
SANKESHWAR - 591313
TQ:HUKKERI, DIST: BELGAUM
2. HANAMANANT ISHWARAPPA
HEDDURASHETTI
AGE: 64 YEARS, OCC: EX SERVICEMAN,
R/O. HEDDURASHETTI GALLI,
SANKESHWAR - 591313, TQ: HUKKERI,
DIST: BELGAUM
3. IRAWWA W/O. BABU GUDDANAVAR
AGE: 86 YEARS, OCC: HOUSEHOLD WORK,
:2:
R/O.KAMATYANATTI, TQ: CHIKODI
NOW AT C/O. S.B. GUDDANAVAR,
POLICE HEAD QUARTERS,
DIST: BELGAUM
4 VIMAL W/O. VEERABHADRAPPA
HEDDURASHETTI
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O.MARUTI GALLI,
SANKESHWAR - 591313
TQ: HUKKERI, DIST: BELGAUM
5 KRISHNABAI GIRIMALLAPPA
SINCE DECEASED BY HIS LRS
5A PUSHPA
W/O. NANDKUMAR BAVANNAVAR,
AGE: 44 YEARS, OCC: WEAVING,
R/O. ANANDPUR, HATTARAGI
TQ:HUKKERI, DIST: BELGAUM
5B. GIRISH NANDKUMAR BAVANNAVAR
AGE: 29 YEARS, OCC: WEAVING
R/O. ANANDPUR, HATTARAGI,
TQ: HUKKERI, DIST: BELGAUM
5C VINAYAK NANDKUMAR BAVANNAVAR
AGE: 26 YEARS, OCC: WEAVING
R/O. ANANDPUR, HATTARAGI,
TQ: HUKKERI, DIST: BELGAUM
5D CHANDRAKANT GIRIMALLAPPA BAVANNAVAR
AGE: 46 YEARS, OCC: WEAVING
R/O. ANANDPUR, HATTARAGI,
TQ: HUKKERI, DIST: BELGAUM
5E PRAKESH GIRIMALLAPPA BAVANNAVAR
AGE: 39 YEARS, OCC: WEAVING
R/O. ANANDPUR, HATTARAGI,
:3:
TQ: HUKKERI, DIST: BELGAUM
5F PREMA W/O. ARUN MUTAGI
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O. PARAGATI HOUSING SOCIETY,
PLOT NO. 6, NEELAGANGA BUILDING,
THEMBLAI KOLHAPUR
6 KAMALAWWA W/O. SHIVAPPA BAGALKOT
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O. SHANKAR NAGAR, SANKESHWAR
TQ:HUKKERI, DIST: BELGAUM
7 SARASWATI HUCHAPPA SHINNUR
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEAR SHIVAJI STATUE
KOLHAPUR, TQ:HUKKERI,
DIST: BELGAUM
8 CHANDRAKANT TAMMANNA HEDDURASHETTI
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O. HEDDURASHETTI GALLI,
SANKESHWAR, TQ:HUKKERI,
DIST: BELGAUM
9 SURESH TAMMANNA HEDDURASHETTI
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O. HEDDURASHETTI GALLI,
SANKESHWAR, TQ:HUKKERI,
DIST: BELGAUM
10 GAJANAN YUVARAJ HEDDURASHETTI
AGE: 44 YEARS, OCC: SALESMAN,
R/O. HEDDURASHETTI GALLI,
SANKESHWAR, TQ:HUKKERI,
DIST: BELGAUM
11 RAMU S/O. LAXMAN HEDDURSHETTI
AGE: 59 YEARS, OCC: PAINTING,
R/O. HEDDURASHETTI GALLI,
:4:
SANKESHWAR, TQ:HUKKERI,
DIST: BELGAUM
12 GANGADEVI W/O. VEERABHADRA HOSUR
AGE: 79 YEARS, OCC: NIL,
R/O. SAPAR GALLI, VADAGAON,
DIST: BELGAUM
... RESPONDENTS
(By Sri : MRUTYUNJAY TATA BANGI, ADVOCATE FOR R-1)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF
CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED:15/03/2013 PASSED BY THE
LEARNED CIVIL JUDGE AND JMFC, SANKESHWAR, ON
I.A.NO.9 IN O.S.NO.88/2009, PRODUCED AT ANNEXURE-E
AND ETC.,..
THIS PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri B S Kamate, learned Advocate appearing for petitioner and Sri Mruthyunjaya Tata Bangi, learned Advocate appearing for respondent-1.
2. This Court by order dated 27.03.2013 had issued notice to respondent-1 - plaintiff alone. Learned Advocate appearing for parties would fairly submit that respondents-2 to 12 who have been arrayed as defendants-2 to 12 before trial Court are sailing with :5: petitioner who is first defendant. Hence, notice to respondents-2 to 12 is dispensed with.
3. Application - I.A.No.9 for amendment of written statement filed by first defendant to incorporate paragraphs 15(a) and 16(a) came to be rejected by trial Court by order dated 15.03.2013 - Annexure-E on the ground that first defendant is attempting to introduce a new cause of action by pleading partition between his father and himself and there is all together a new case sought to be made out by first defendant.
4. Having heard the learned Advocates appearing for parties and on perusal of case papers, it requires to be noticed that amendment of plaint and amendment of written statement both stand on different pedestal. While seeking for amendment of the plea in the written statement, the applicant/defendant would be at liberty to raise even inconsistent pleas and this may not be permissible in the case of amendment of a :6: plaint. For this proposition, judgment of the Apex Court reported in the case of BALDEV SINGH & OTHERS vs. MANOHAR SINGH & ANOTHER reported in AIR 2006 SC 2832 can be looked up whereunder it has been held as under:
"This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co.Ltd. & Anr. Vs. M/s.Ladha Ram 7 Co. ((1976) 4 SCC 320), this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence."
The proviso introduced to Order 6 Rule 17 CPC puts an embargo on amendment of pleadings after commencement of trial and the words used in the proviso 'commencement of trial' came to be considered :7: in the same judgment referred to above by Apex Court and it has been held as under:
"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings.":8:
5. Keeping the contours laid down by Apex Court extracted herein above in mind, when the facts on hand are examined, it would emerge from the plaint that suit in question has been filed for partition and separate possession of 1/8th share. First defendant has filed written statement denying the claim of plaintiff and particularly in paragraphs 14 and 15, right of first defendant to the suit such property has been pleaded. In the proposed amendment, what is sought to be incorporated is by way of amplification of the plea raised in these 2 paragraphs. There is no new plea sought to be put forward. It is true that there is inconsistent plea insofar as paragraphs 15 & 16 of written statement as noticed by trial Court. Amendment sought for would neither change the nature of pleadings nor it would introduce an altogether a different case insofar as first defendant is concerned. Though first defendant was aware of these facts, for reasons best known, they were not pleaded at the first available opportunity and on :9: account of the application having been filed belatedly first defendant is required to be mulcted with costs by permitting the first defendant to raise additional plea now sought to be put forward. By introduction of this pleading, stand of the plaintiff would neither get jeopardised nor any right that is accrued to the plaintiff would be taken away by such amendment.
6. For the reasons aforestated, following order is passed:
(1) Writ petition is allowed.
(2) Impugned order dated 15.03.2013 passed by
Civil Judge & JMFC, Sankeshwar on
I.A.No.9 in O.S.No.88/2009 is hereby set aside.
(3) I.A.No.9 filed by defendant for amendment of written statement is hereby allowed on payment costs of Rs.2500/- to plaintiff. First defendant to carry out the amendment : 10 : and trial Court shall proceed with the suit in accordance with law. Ordered accordingly.
SD/-
JUDGE *sp