IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NOs.35489-492/2016 (GM-CPC) BETWEEN:
1. SRI. NARAYANA S/O. LATE CHELUVAIAH AGED ABOUT 42 YEARS, 2. RAMESH S/O. LATE CHELUVAIAH AGED ABOUT 42 YEARS, 3. NANJAMMA W/O. LATE CHELUVAIAH AGED ABOUT 38 YEARS, ALL THE PETITIONERS ARE RESIDING AT TALUR VILLAGE, JAYAPURA HOBLI, MYSORE – 570008 4. SMT. SIDDAMMA W/O.SANGAPPA SARGUR VILLAGE, NANJUNGUD TALUK, MYSORE – 571 301 (BY SRI.LOKESH C, ADVOCATE) AND:
SMT. CHELUVAMMA W/O. DASAIAH @ KALYANAIAH, AND D/O. CHELUVAIAH @ DODDAGANDU, AGED ABOUT 55 YEARS, RESIDING AT KADAKOLA VILLAGE, ...PETITIONERS JAYAPURA HOBLI MYSORE-570008.
...RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD. 02.06.2015 PASSED BY THE LEARNED II ADDL. CIVIL JUDGE, MYSORE, IN O.S.NO.99/2001 VIDE ANNEX-A BY ALLOWING THE APPLICATION DTD. 8.1.2014 UNDER ORDER VI RULE 17 IN I.A.NO.XII/2014 VIDE ANNEX-B.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners, who are defendants 2 to 4 in O.S.No.99/2001 have assailed the order dated 02.06.2015 rejecting the application filed by them under Order VI Rule 17 CPC whereunder they sought permission to amend the written statement.
2. Respondent herein has filed the suit in question for redemption of mortgage against first defendant and to direct defendants to deliver possession of suit property, with a direction to the defendants to execute reconveyance deed in favour of plaintiff. Initially suit came to be decreed on 31.08.2005 by directing the first defendant to handover possession of suit schedule property within two (2) months from the date of judgment. Being aggrieved by the same, first defendant preferred an appeal in R.A.No.1134/2009 and during the pendency of said appeal, writ petitioners got impleaded themselves as interested parties. Thereafter, said appeal came to be disposed of on 25.03.2011 by remanding the case back to trial Court with a direction to the trial Court to frame additional issues if any arising out of said pleadings and to give an opportunity to the parties to lead additional evidence on the additional issues so framed and to dispose of the suit in accordance with law.
3. During the pendency of suit application in question came to be filed by second defendant for amendment of written statement to raise a plea that a partition was taken place on 18.02.2012, interse between them pertaining to suit property measuring 6 acres 10 guntas and contending the allotment of shares thereunder. Said application came to be rejected by trial Court by the impugned order.
4. It has been urged in the present writ petition that approach of the trial Court for dismissing the application is erroneous and trial Court committed a serious error in observing that plea sought to be put forward by defendants in their written statement is completely outside the scope of suit and as such, they have prayed for order being setting aside. It was also contended that defendants are only trying to explain as to how they are enjoying the property and in the absence of such plea, they would not be able to demonstrate this fact and as such they have contended that trial Court ought to have allowed the application for amendment of written statement.
5. Perusal of case papers would disclose that suit is one for redemption of mortgage. As rightly observed by the trial Court, a right to redeem to mortgage can be exercised before foreclosure of mortgagor or estate being sold. By filing the suit in question plaintiff has expressed her intention to redeem the mortgage, which is not foreclosed or given effect to by the decree of a Court. It is because of this precise reason trial Court is adjudicating as to whether plaintiff has a right to seek for redemption of mortgage and whether she meets the statutory requirements for seeking such prayer. In these circumstances, proposed plea of defendants contending that there was a interse partition between them, insofar as suit schedule property is concerned namely by defendants 2 to 5, who are claiming to be the relatives of mortgagee and in possession, would be a plea alien to the scope of the suit. Even if it were to be so, said partition interse between defendants 2 to 5 does not take away the right of plaintiff to seek redemption of mortgage. The universal principle ‘once a mortgagee is always a mortgagee’ is squarely applicable to the case on hand. In that view of the matter, order of rejection of plea for amendment of written statement, does not suffer from any infirmity or error, either in law or on facts calling for interference. Hence, these writ petitions stands dismissed as being devoid of merits.
SD/- JUDGE DR