IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 32247 OF 2017 (GM-CPC) BETWEEN:
RAVINDRANATH K S/O LATE KOCHAPPA DEVADIGA, AGE: 72 YEARS, SENIOR CITIZEN BENEFIT NOT CLAIMED C/O. SHREEDEVI DEPARTMETAL STORES, RASIK CHAMBERS, MARKET ROAD, MANGALORE - 575 001.
(BY SRI. SACHIN.B.S, ADVOCATE) AND:
1 . SHALINI D/O LATE KOCHAPPA DEVADIGA, AGE: MAJOR, C/O. SHREEDEVIDEPARTMENTAL STORES, RASIK CHAMBERS, MARKET ROAD, MANGALORE - 575 001.
2 . SMT. SHARADA W/O LATE KOCHAPPA DVADIGA, AGE: MAJOR 3 . VASANTHI D/O LATE KOCHAPPA DEVADIGA, AGE: MAJOR 4 . SUJATHA D/O LATE KOCHAPPA DEVADIGA, AGE: MAJOR 5 . RAGHAVENDRA K S/O LATE KOCHAPPA DEVADIGA, AGE: MAJOR ... PETITIONER 6 . SHASHIKALA D/O LATE KOCHAPPA DEVADIGA, AGE: MAJOR 7 . RAJENDRA K D/O LATE KOCHAPPA DEVADIGA, AGE: MAJOR RESPONDENT NOS.2 TO 7 R/AT KALLODY, MOODUMANE, MALAVOOR VILLAGE, MANGALORE TALUK, D.K. DISTRICT – 575 001.
... RESPONDENTS (BY SRI. G.RAVISHANKAR SHASTRY, ADVOCATE FOR RESPONDENT NOS.2, 3, 4 & 7) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD:5.6.2017 PASSED ON I.A.NO.3 IN R.A.NO.15/2017 ON THE FILE OF IV ADDL. DISTRICT AND SESSIONS JUDGE D.K. MANGALORE AS PER ANNEXURE-A AND CONSEQUENTLY ALLOW I.A.NO.3 AS PRAYED FOR; AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the defendant in a partition suit in O.S.No.32/2002 having suffered judgment & decree on 18.01.2014, a copy whereof is at Annexure-D has preferred an appeal in R.A.No.15/2014; in the said appeal he had moved the application seeking amendment of Written Statement which has been negatived by the lower appellate Court by the impugned order dated 05.06.2017, a copy whereof is at Annexure-A; aggrieved by this he has approached Writ Court.
2. After service of notice, the respondent-plaintiffs in the suit and the opponents in the regular appeal having appeared through their counsel resist the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons:
(a) the amendment now sought for could have been taken up by the petitioner since suit is post amendment to the CPC; the suit having been tried and decreed and the appeal having been filed now, it is not desirable that such an amendment should be entertained and therefore, the Court below has rightly denied the leave to amend the Written Statement; this view is consistent with the long line of decisions of the Apex Court and also the spirit of proviso order VI Rule 17;
(b) the amendment so far as the alienation of property is concerned, also cannot be favoured inasmuch as, pleadings to that effect having been taken up by the petitioner at paragraph 3 of the Written Statement, a copy whereof is part of the record here, impugned order cannot be faltered;
(c) the amendment for introducing a counter claim belatedly at this stage is not desirable inasmuch as the suit having been already decreed, decree too is in challenge;
(d) the contention that denial of leave to amend the pleadings would result multiplicity of proceedings is a poor ground for granting indulgence in the matter especially when the battle lines having been drawn up in the suit itself and the suit accordingly having been decreed; and, (e) anyway it is open to the petitioner to file a separate suit in respect the subject matter of the counter claim if at all the same is maintainable in law.
In the above circumstances, writ petition being devoid of merits is dismissed.
No costs.
Sd/- JUDGE DS