IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.2974/2019 (GM – CPC) BETWEEN:
1. SRI DEVAPPA S/O LATE DODDA APPAYYANNA, AGED ABOUT 79 YEARS, R/AT SRIRAMPURA IN SY.NO.41/P1 JAKKUR POST, YELAHANKA HOBLI, BANGALORE NORTH TALUK BANGALORE-560064 2. SRI HANUMANTHE GOWDA S/O DEVAPPA, AGED ABOUT 54 YEARS, R/AT SRIRAMPURAM, JAKKUR POST, YELAHANKA HOBLI, BANGALORE NORTH TALUK BANGALORE-560064 AND ALSO R/AT CHANNAKESHA POULTRY FARM, VIJAYAPURA TOWN, GADDADA NAGENA HALLI ROAD, DEVANAHALLI TALUK BANGALORE RURAL DISTRICT 3. SRI CHANNAKRISHNAPPA S/O DEVAPPA, AGED ABOUT 49 YEARS, R/AT SRIRAMPURA, JAKKUR POST, YELAHANKA HOBLI, BANGALORE NORTH TALUK BANGALORE-560064 4. SMT.GOWRAMMA W/O SRI KRISHNAPRASAD, D/O DEVAPPA, AGED ABOUT 52 YEARS, R/AT 1ST MAIN, 3RD CROSS, BEHIND POST OFFICE, NEHRU NAGAR, YELAHANKA BANGALORE. ... PETITIONERS [BY SRI C.M.NAGABUSHANA, ADV.] AND:
1. KUM. ACHAL S/O RAJANNA, AGED ABOUT 23 YEARS 2. KUM. AASHISH S/O RAJANNA, AGED ABOUT 19 YEARS 3. SMT.SUCHITHRA W/O RAJANNA, AGED ABOUT 44 YEARS ALL ARE R/AT NO.21/1, KRUSHI NILAYA, 1ST CROSS, 2ND MAIN, MUNIGURAPPA LAYOUT, AMRUTHALLI, BANGALORE-560092 …RESPONDENTS [BY SRI SHIVAPRAKASH, ADV. FOR C/R-3.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 11.12.2018, PASSED IN O.S.NO.5759/2010, ON IA XVII THE FILE OF THE XLII ADDITIONAL CITY CIVIL & SESSION JUDGE, BENGALURU, AT ANNEXURE-E, AND THEREBY ALLOW THE APPLICATION FILED BY THE PETITIONER UNDER ORDER VI RULE 17 OF THE CPC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners have challenged the order dated 11.12.2018 passed on I.A.No.17 in O.S.No.5759/2010 on the file of the XLII Addl. City Civil & Sessions Judge, Bangalore whereby the application (I.A.No.17) filed by the petitioners under Order VI Rule 17 r/w Section 151 of CPC has been rejected.
2. Respondents herein have filed O.S.No.5759/2010 against the petitioners for the relief of partition and separate possession of the suit schedule properties. In the said suit proceedings, when the matter was set down for defendants evidence, petitioners/defendants have filed an application seeking for amendment of the written statement under Order VI Rule 17 r/w Section 151 of CPC which came to be dismissed. Hence, this writ petition.
3. Learned counsel for the petitioners placing reliance on the judgment of the Hon'ble Apex Court in the case of Sajjan Kumar Vs. Ram Kishan reported in (2005)13 SCC 89 submitted that that there is no prohibition for seeking amendment of the pleadings particularly relating to the written statement. Reliance is also placed on the judgment of the Hon'ble Apex Court in the case of Pradeep Singhvi & another Vs. Heero Dhankani & others reported in (2004)13 SCC 432 to contend that even though the trial had commenced, the proposed amendment which would not cause any prejudice to the plaintiffs cannot be rejected. The amendment sought for, would be necessary for the purpose of determining the real questions in controversy between the parties and the same can be allowed at any stage of the proceedings. It was argued that the Trial Court failed to consider these material aspects while rejecting the application.
4. I have given careful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record.
5. As could be seen from the material available on record, the defendants have filed the written statement on 22.4.2013. Subsequently in the year 2015 the defendants amended their written statement. Again on 20.9.2017 the defendants have filed the present I.A. seeking amendment of the written statement which reads thus:
“2(a). It is submitted that, the item No.1 of the plaint ‘A’ schedule property which bears land bearing Sy.No.40/1 (New No.40/12 as assigned by the revenue authorities) of Srirampura Village, Yelahanka Hobli, Bangalore North Taluk, measuring 20½ Guntas (20 Guntas as shown in the revenue documents) is the self acquired property of the Defendant No.1 – Sri Dyavappa having purchased the same under the registered sale deed dated 30.01.1993, which has been registered in the office of the Sub-Registrar, Yelahanka, Bangalore as document No.5149/1992-93, Book No.1, Volume No.324 at Pages 221-224, dated 04.02.1993. Original sale deed 30.01.1993 is herewith produced for kind perusal of this Hon’ble court.
Whereas, item No.II of the plaint ‘A’ schedule property which bears land bearing Sy.No.41/P1 of Srirampura Village, Yelahanka Hobli, Bangalore North Taluk, measuring 1 Acre 20 Guntas was and is not available in the family. In view of the same none of the Defendants have any concern over the same.
Whereas, the Item No.III & IV of the plaint ‘A’ schedule properties which bears land bearing Sy.Nos.41/2 measuring 1 Acre 3 Guntas and land bearing Sy.No.45/5 measuring 10 Guntas both the lands are situated at Srirampura Village, Yelahanka Hobli, Bangalore North Taluk are concerned, those properties were standing in the name of the Defendant No.1 – Sri Dyavappa, who in turn has gifted both the properties to the Defendant No.3 – Sri Chennakrishnappa under the registered gift deed dated 29.05.2008, which has been registered in the office of the Senior Sub-Registrar, Byatarayanapura, Bangalore vide document No.BYP-1-00646/2008-09, stored in CD No.BYPD19, dated 30.05.2008. Original gift deed dated 29.05.2008 is herewith produced for kind perusal of this Hon’ble court.
Whereas, item No.V of the plain ‘A’ schedule property which bears land bearing Sy.No.45/3 of Srirampura Village, Yelahanka Hobli, Bangalore North Taluk, measuring 31 Guntas was and is not available in the family. In view of the same none of the Defendants have any concern over the same, on the other hand the said property is standing in the name of one Munishamappa.
Whereas, item No.I & III of the plaint ‘B’ schedule property which bears land bearing Sy.No.38/P2 (New No.38 as assigned by the revenue authorities) of Chikkathaththamangalal Village, Vijayapura Hobli, Bangalore North Taluk, measuring 1 Acre and land bearing Sy.No.160/P8 (New No.160 as assigned by the revenue authorities) of Vijayapura Village, Vijayapura Hobli, Devanahalli Taluk, measuring 2 Acres are the self acquired properties of the Defendant No.1 – Sri Dyavappa having purchased the same under the registered sale deed dated 22.02.1977 which has been registered in the office of the Sub-Registrar, Devanahalli as document No.1764/1976-77, dated 24.02.1977. Original sale deed 22.02.1977 is herewith produced for kind perusal of this Hon’ble Court.
Whereas, item No.II of the plaint ‘B’ schedule property which bears land bearing Sy.No.109 of Chikkathaththamangala Village, Vijayapura Hobli, Bangalore North Taluk, measuring 1 Acre is the self acquired property of the Defendant No.1 – Sri Dyavappa having purchased the same under the registered sale deed dated 02.09.1991 which has been registered in the office of the Sub-Registrar, Devanahalli as document No.1097/1991-92, dated 03.02.1991. Original sale deed dated 02.09.1991 is herewith produced for kind perusal of this Hon’ble Court.
Whereas, item No.IV of the plain ‘B’ schedule property which bears land bearing Sy.No.160/P10 (New No.160 as assigned by the revenue authorities) of Vijayapura Village,Vijayapura Hobli, Devanahalli Taluk, measuring 4 Acres is the self acquired property of the Defendant No.1 – Sri Dyavappa having purchased the same under the registered sale deed 13.03.1974 which has been registered in the office of the Sub- Registrar, Devanahalli as document No.662/1974-75 dated 29.05.1974. Original sale deed dated 13.03.1974 is herewith produced for kind perusal of this Hon’ble Court.
Whereas, item No.V & VII of the plaint ‘B’ schedule property which bears land bearing Sy.No.1/P4 measuring 3 Acres and land bearing Sy.No.133 measuring 4 Acres both the lands are situated at Mandibele Village, Vijayapura Hobli, Devanahalli Taluk, are the ancestral properties of the Defendant Nos.1 to 4 herein and that all have been in joint possession and enjoyment of the same.
Whereas, item No.VI of the plaint ‘B’ schedule property which bears land bearing Sy.No.1/B5 of Mandibele Village, Vijayapura Hobli, Devanahalli Taluk, measuring 2 Acres 10 Guntas is the self acquired property of the Defendant No.2 – Sri Hanumathegowda having acquired title to the same by virtue of the grant made by the Thahasildar, Devanahalli Taluk, Bangalore Rural District vide LNDRUCSR94-95-96(P)17B/1995-96, Saguvali Chit Extract Sl.No.219/1995-96, dated 10.07.1996. Original Saguvali Chit Extract dated 10.07.1996 is herewith produced for kind perusal of this Hon’ble Court.
Whereas, item No.VIII of the plaint ‘B’ schedule property which bears land bearing Sy.No.38/P7 (New No.38 as assigned by the revenue authorities) of Chikkathaththamangala Village, Vijayapura Hobli, Bangalore North Taluk, measuring 1 Acre is the self acquired property of the Defendant No.1 – Sri Dyavappa having purchased the same under the registered sale deed dated 07.05.1984 which has been registered in the office of the Sub-Registrar, Devanahalli as document No.162/1984-85, dated 21.05.1984. Original sale deed dated 07.05.1984 is herewith produced for kind perusal of this Hon’ble Court.
It is submitted that, neither Sri Rajanna nor the remaining Defendants have contributed anything for the purchase of the properties by the Defendant No.1 – Sri Dyavappa under various sale deeds as referred to above. Likewise, even for the purchase of the property by the Defendant No.2 – Sri Hanumanthegowda as referred to above neither Sri Rajanna nor the remaining Defendants contributed anything. On the other hand those properties are the self acquired properties of the Defendant Nos.1 & 2. Under these circumstances the Plaintiffs have no right under law to seek for partition in respect of the self acquired properties of the Defendant Nos.1 & 2 during their lifetime. Accordingly, their suit requires to be dismissed.”
6. The aforesaid discloses that the amendment sought would not be a mere amplification of the earlier facts but changes the nature of the suit prejudicing the rights of the plaintiffs. It is well settled law that amendment to the pleadings can be allowed at any stage of the suit provided it would not prejudice the rights of the other side and if such amendment is sought subsequent to the commencement of the trial, it is for the parties seeking amendment to satisfy that inspite of due diligence, they could not bring on record the facts by the proposed amendment.
7. Learned counsel placed reliance on the judgment of the Hon'ble Apex Court in the case North Eastern Railway Administration, Gorakhpur V/s. Bhagwan Das [D] by L.Rs., [AIR 2008 SC 2139] wherein the Hon'ble Apex Court has observed that all amendments ought to be allowed which satisfy the two conditions: [a] of not working injustice to the other side, and [b] of being necessary for the purpose of determining the real questions in controversy between the parties.
8. It is not the case of the defendants that they were oblivious of the facts which they are intending to bring on record by way of amendment to the written statement. On the other hand, the said facts are not the subsequent events and was well within the knowledge of the defendants at the time of filing the original written statement/amended written statement. Amendment of pleadings cannot be allowed in a routine manner and the request made by the parties would alter the frame of the suit prejudicing the right of the other party. The Trial Court has rightly observed that the proposed amendment is not just and necessary for determining the real questions in controversy between the parties which cannot be found fault with. No jurisdictional error is found in the order impugned. The petition stands dismissed as devoid of merits.
Sd/- JUDGE Dvr: