IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.Nos.1376/2019 & 3094/2019 (GM-CPC) BETWEEN:
Sri. Kabbalegowda @ Kabbalaiah S/o. Late. Durgegowda, @ Chotegowda, Since dead by his legal representatives brought on record, in compliance of the trial Court order dated 20.07.2002.
Smt.Chikkathayamma W/o. late Kabbalegowda, Since dead by her legal representatives brought on record, in compliance of the trial Court order.
1(a) Sri.Kumar.K S/o. Late Kabbalegowda @ Kabbalaiah, Aged about 46 years 1(b) Sri.Lokesh S/o. Late Kabbalegowda @ Kabbalaiah, Aged about 44 years 1(c) Sri.Swamy.K S/o.Late Kabbalegowda @ Kabbalaiah Aged about 39 years All are residents of Kabbalu Village, Sathanur Hobli, Kanakapura Taluk, Ramanagara District – 562 126 (By Sri.M.Veerabhadraiah, Advocate) AND:
1. Sri.D.Krishne Gowda S/o.Durgegowda, Aged about 53 years, Kabbalu Village, Sathanur Hobli, Kanakapura Taluk, Ramanagaram District – 562 117 2. Smt.Parvathamma W/o.Siddegowda, Aged about 50 years, 3. Smt.Jayamma D/o. Late. Durgegowda, Aged about 40 years, Respondent Nos.2 & 3 are R/at No.325, 4th ‘T’ Block, Jayanagar, Bengaluru – 560 011 …Petitioners …Respondents (By Sri.Shammukhappa, Advocate for R1;
Notice to R2 and R3 are dispensed with vide order dated 12.02.2019) These Writ Petitions are filed under Article 227 of the Constitution of India praying to quash the impugned order dated 07.01.2019 passed by the Principal Civil Judge (Jr.Dn.) and JMFC., Kanakapura, in O.S.No.190/1998 as per Annexure–A consequently allow the application filed under Order 6 Rule 17 read with Section 151 of CPC for amendment of written statement and application filed under Order 14 Rule 5 read with Section 151 of CPC for framing of additional issues as per Annexure-D and F and etc., These Writ Petitions coming on for Orders, this day, the Court made the following:
O R D E R The petitioners-defendants filed these writ petitions against the order dated 07.01.2019 on I.A.Nos.19 and 20 in O.S.No.190/1998 rejecting the applications filed by the defendants No.1 (b) to (e) under Order VI Rule 17 read with Section 151 of CPC and Order XIV Rule 5 read with Section 151 of CPC.
2. The first respondent who is the plaintiff before the trial Court filed suit for partition, to declare that the plaintiff is entitled to half share in all the suit schedule properties and also half yearly pooja work in the Kabbalamma temple when the term of their Archakaship commences, separate possession of the same by metes and bounds and for mesne profits contending that the plaintiff and defendants are the members of the joint family and the suit schedule properties are joint family properties. Hence, the plaintiff is entitled to half share in all the suit schedule properties.
3. The first defendant filed written statement denying the averments made in the plaint and contended that there is no relationship between the plaintiff and defendants and the plaintiff is not entitled to any share, the suit filed by the plaintiff is liable to be dismissed as it is barred by law.
4. When the matter was posted for further cross examination of PW.1, at that stage the application came to be filed by defendant Nos.1(b) to 1(e) on 17.12.2018 under Order VI Rule 17 read with Section 151 of CPC to amend the written statement i.e., to add paragraph 8(b) after para 8 to effect that the suit filed by the plaintiff is badly barred by limitation and suit is not maintainable for non joinder of necessary and proper party and plaintiff is not entitled for any declaratory relief in the absence of document as well as order of statutory authority. The said application came to be resisted by the plaintiff, reiterating the averments made in the plaint, the defendants also filed an application under Order XIV Rule 5 read with Section 151 of CPC for framing of additional issues with regard to pleadings in the written statement. The said application is also resisted by the plaintiff by filing the objections.
5. The trial Court considering both the applications and objections, by the impugned order dated 07.01.2019 rejected both the applications. Hence these writ petitions are filed.
6. Sri.M.Veerabhadraiah, learned counsel for the petitioners-defendants contended that the impugned order passed by the trial Court rejecting the applications filed by the defendants under Order VI Rule 17 read with Section 151 of CPC and Order XIV Rule 5 read with Section 151 of CPC is erroneous and contrary to law. He would further contend that the suit is filed by the plaintiff for partition and separate possession, defendants disputed the very relationship itself and contended that the plaintiff is not entitled for any partition. The suit filed by the plaintiff is barred by law and issues were not properly framed with regard to the contention based on the written statement, more particularly in paragraph 8 as contemplated under Order XIV Rule 5 read with Section 151 of CPC. Therefore, the trial Court ought to allowed, the applications viz., seeking amendment and to frame the additional issues as contemplated. He would further contend that mere allowing the applications for amendment with regard to limitation and raising preliminary issue will no way prejudice the case of the plaintiff. Therefore, he sought to allow the writ petitions.
7. Per contra, Sri.Shanmukhappa, learned counsel for respondent No.1-plaintiff sought to justify the impugned order passed by the trial Court rejecting the application filed by the defendants. He would further contend that the suit was filed in O.S.No.190/1998 for partition and separate possession and when the matter was posted for cross-examination of PW.1, at that stage the application came to be filed by defendant Nos.1(b) to 1(e) on 17.12.2018 under Order VI Rule 17 read with Section 151 of CPC, where by the trial Court has rightly rejected the application and it is mandate as per the proviso under Order VI Rule 17 of CPC that once trial is commenced there is no scope of amendment of pleadings unless the Court comes to the conclusion that in spite of due diligence, the party could not raise the matter before commencement of trial. He would further contend that in a partition suit there is no question of limitation. Therefore, the trial Court has rightly rejected the applications filed by the defendants. Therefore, he sought to dismiss the writ petitions.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the respondent No.1- plaintiff before the trial Court has filed a suit for partition and separate possession contending that the plaintiff and defendants are members of joint family and the plaintiff is entitled to half share in all the suit schedule properties and half yearly pooja work in the Kabbalamma temple and the plaintiff and the defendants are in joint possession and for mesne profits. The defendants filed a written statement specifically contending that the plaintiff is a stranger to the defendants’ family and suit filed by the plaintiff is not maintainable. He would further contend in paragraph 8 of the written statement that the suit filed by the plaintiff is barred by law, the plaintiff has no right to perform pooja at the Kabbalamma temple.
9. It is also not in dispute, when the matter was posted for cross examination and at that stage the applications came to be filed for amendment and the suit filed by the plaintiff is badly barred by limitation and is not maintainable for non joinder of necessary and proper party to the suit and plaintiff is not entitled for any declaratory relief in absence of document as well as order of statutory authority and the trial Court proceeded to dismiss the applications mainly on the ground that the proposed applications filed is after lapse of twenty years and there is no sufficient reason on the part of the defendants as to why they have been waiting to do so till date. In view of the provisions as stated under Order VI Rule 17 read with Section 151 of CPC and Order XIV Rule 5 read with Section 151 of CPC, once the trial is commenced there is no scope of amendment of pleadings.
10. When the plaintiff filed suit for partition, the issues framed by the trial Court are against the plaintiff to prove whether all the suit schedule properties are joint family properties and if the plaintiff is entitled for share and whether he has proved the same. Mere allowing the amendment with regard to the limitation as raised in written statement will in no way prejudice the case of the plaintiff. Ultimately, the plaintiff has to succeed based on the oral documents and evidence produced by both the parties. If an issue is raised with regard to limitation as contended by the defendants, the burden shifts on the defendants to prove the said issue. Even if the issue is framed, ultimately it has to be decided along with the main suit as the issue of limitation is a mixed question of facts and law which has to be adjudicated at the time of final disposal of the suit along with other issues. The provisions of Order VI Rule 17 of CPC is not mandatory and it is only directory. The amendment can be allowed at any stage unless the amendment alter the nature of suit or cause of action. The proposed amendment to raise two points in the written statement with regard to limitation and non joinder of necessary party, will not affect the case of the plaintiff. The amendment sought is imperative for proper and effective adjudication of the case. Though the applications was filed at a belated stage it was not malafide. Mere allowing the amendment will not cause prejudice to the case. Plaintiff, refusing the amendment will lead to injustice and multiplicity of litigations. The proposed amendment will not constitutionally or fundamentally change the nature or character of the case. Ultimately the plaintiff has to prove joint possession of the joint family properties and defendants have to prove how it is barred by law of limitation, since they have taken a specific defence that the plaintiff is a stranger to the family and all these issues have to be decided at the time of adjudication or the final disposal of the suit. Though there was delay of twenty years, the same has to be compensated in terms of money.
11. For the aforesaid reasons, the impugned order passed by the trial Court dated 07.01.2019 on I.A.Nos.19 and 20 is hereby quashed. I.A.Nos.19 and 20 filed by the defendants for amendment of the written statement and to frame additional issues under Order XIV Rule 5 read with Section 151 of CPC are hereby allowed, subject to payment of cost of Rs.5,000/- (Rupees Five Thousand only) payable by the defendants-petitioners to the plaintiff- respondent No.1 on the next date of hearing before the trial Court.
All contentions raised by both the parties are kept open and to be urged before the trial Court at the time of adjudication of the suit.
It is also relevant to mention here that this Court in W.A.No.5585/2015 dated 22.10.2018 has already directed the trial Court to dispose the suit. It is for the parties to co-operate with the trial Court and the trial Court shall comply the order passed by this Court, in accordance with law.
Sd/- JUDGE KPS