IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.9108/2017 (GM-CPC) BETWEEN:
A.GUNDURAO, AGED 60 YEARS, S/O LATE ASWATHNARANAIAH, R/A. NO.39 GROUND FLOOR, 19TH MAIN, FIRST BLOCK, RAJAJINAGARA, BENGALURU-560 010.
(BY SRI. D.R.SUNDARESHA, ADVOCATE) AND:
1. SMT. A.LALITHAMMA, D/O LATE G.ASWATHANARANAIAH, W/O H.S.SATHYANARAYANA RAO, AGED ABOUT 55 YEARS, NO.46, 3RD MAIN ROAD, OPP: “ASTA GANAPATHY TEMPLE”, MARUTHINAGAR, YELAHANKA, BENGALURU-560 064.
2. SRI. A.NAGARAJA RAO, S/O LATE G.ASWATHANARANAIAH, AGED ABOUT 53 YEARS, NO.397, I FLOOR, 19TH MAIN, 1 BLOCK, RAJAJINAGAR, BENGALURU-560 010.
3. SMT. A.SRIVALLI, D/O LATE G.ASWATHANARANAIAH, W/O UMESH JOSHI, AGED 50 YEARS, NO.66, 2ND CROSS, VENKETESHWARA LAYOUT, VISWANEEDAM POST, HEROHALLI, BENGALURU-560 091.
…PETITIONER 4. SMT. A.SHAMANTHAKA MANI, D/O LATE G.ASWATHANARANAIAH, AGED ABOUT 48 YEARS, NO.31, I CROSS, VENKETESHWARA LAYOUT, VISWANEEDAM POST, HEROHALLI, BENGALURU-560 091 … RESPONDENTS (BY SRI. ARAVINDA BABU B.S., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ALLOW THE WRIT PETITION AND QUASH THE ORDER DATED 25.11.2016 IN I.A.NO.I IN ORDER I.A. IN FDP NO.81/2015 VIDE ANNEXURE-C TO THE WRIT PETITION REJECTING ORDER VII RULE 17 CPC TO AMEND THE SUIT SCHEDULE IN ORDER ON I.A. AND DIRECT THE LEARNED TRIAL COURT TO AMEND THE SCHEDULE AS PER JUDGMENT IN ORIGINAL SUIT.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the defendant in O.S.No.2631/2008 and also being the first respondent in the FDP No. 81/2015 arising therefrom, is invoking the writ jurisdiction of Writ Court for assailing the order dated 25.11.2016, a copy whereof is at Annexure-C, whereby his application under Order VI Rule XVII read with Section 151 of CPC, 1908 seeking leave for amendment has been rejected by the learned V Additional City Civil Judge, Bengaluru.
2. The respondent – decree holders having entered appearance through their counsel have filed their Statement of Objections dated 08.03.2017 resisting the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court does not much interfere with an impugned order but disposes off this writ petition with the observation that the FDP shall be confined to Schedule ‘A’ property minus the Schedule ‘B’ property inasmuch as:
(a) the trial Court vide order dated 05.10.2015 at Annexure-2 to the respondents’ Statement of Objections, made on petitioner’s application under section 152 of CPC, 1908 at para No.9 has observed as under:
“I have gone through the judgment. The judgment and decree in this case are passed my learned predecessor, decreeing the suit of the plaintiffs in part. The defendant has sought for proposed corrections in the judgment and decree. There is already a correction as to 1/5th share in the plaint “A” Schedule Property effected in the judgment. In para No.13 of the judgment there is an observation to the effect that during the life time of late Ashwathanarayanaiah, he had gifted “B” Schedule Property to the defendant on 28.5.2007. Therefore, the plaintiffs are not entitled to claim any share in “B” Schedule Property and it is held that the plaintiffs are entitled for a share only in “A” Schedule Property.”
(b) the above observations made after hearing the parties in the body of the order which is produced by the respondent – decree holders themselves as an Annexure to the Statement of Objections operates as res judicata since the doctrine is invokable at the successive stages of the same proceeding vide REKHA VS. ADDITIONAL CHIEF JUDICIAL MAGISTRATE 2003 AIHS 755 (ALL), NATESAN VS. RAJENDRAN 2013 (3) ICC (MAD) 478 & MANAGEMENT SHAHDARA (DELHI) SAHARAPUR LIGHT RAILWAY CO. LTD., VS. S.S.RAILWAY WORKERS’ UNION, AIR 1969 SC 513;
and, (c) though it is true that the petitioner could urge the grounds that are urged in this writ petition, in the FDP, however in view of the specific finding that the ‘B’ schedule property being the subject matter of gift, the FDP has to be confined to ‘A’ schedule property minus ‘B’ schedule property; an argument to the contrary would breed lot of injustice to the petitioner; the decision cited by the respondents in the case of SRI CHANNAVEERAPPA GOWDA Vs. SRI RENUKAPPA GOWDA AND OTHERS, LAWS (KAR) 2014 (4) 154, does not come to their aid to dislodge this position; in fact, this decision supports the case of the petitioner in holding that a property that was left out in the preliminary decree cannot be brought in subsequently In the above circumstances, this Writ Petition is disposed off with the aforementioned observations.
No costs.
Sd/- JUDGE DS/Bsv