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2022 Supreme(Online)(Kar) 32543
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2022
BEFORE
THE HON9BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.16397/2018 (GM-CPC)
BETWEEN:
SMT. HAMSA
W/O. LATE D.R. SHEKAR,
D/O. LATE GOPALA MESTRI,
AGED ABOUT 46 YEARS,
RESIDING AT MUNESHWARANAGARA,
7TH CROSS, WIDIA FACTORY BEHIND,
NAGASANDRA POST,
BENGALURU 3 560 073.
... PETITIONER
(BY SRI B.M. GUNJAL, ADVOCATE)
AND:
1.
SMT. PAPAMMA ALIAS AMMANI @ KARUPATHAL
W/O. LATE GOPAL MESTRI,
AGED ABOUT 73 YEARS,
2.
SRI LOKANATHA
S/O. LATE GOPAL MESTRI,
AGED ABOUT 53 YEARS,
3.
SMT. SELVI
D/O. LATE GOPAL MESTRI,
AGED ABOUT 49 YEARS,
4.
KUMAI NITYASHREE
D/O. SMT. SELVI,
AGED ABOUT 23 YEARS,
5.
KUMAI NIKITHA
D/O. SMT. SELVI,
AGED ABOUT 21 YEARS,
- 2 -
6.
SRI JAGANNATHA
S/O. LATE GOPAL MESTRI,
AGED ABOUT 45 YEARS,
7.
SMT. GOMATHI
D/O. LATE GOPAL MESTRI,
AGED ABOUT 43 YEARS,
ALL ARE RESIDING AT
MURUGAN PRASAD HOUSE
COURT ROAD,
SANJAYANAGARA,
BELATHANGADY KASABA HOBLI,
BELATHANGADY TALUK,
DAKSHINA KANNADA DISTRICT,
PIN CODE 3 574 214.
... RESPONDENTS
(BY R-1, R-2, R-4, R-5 AND R-7 ARE SERVED;
MR. DEEPAK WAGLE, ADVOCATE FOR MR. A. KESHAVA
BHAT, ADVOCATE FOR R-3 AND R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR ENTIRE RECORDS MAINTAINED IN O.S.NO.69/2015 ON
THE FILE OF THE PRINCIPAL SENIOR CITY CIVIL JUDGE AND
JMFC AT BELTHANGADY, DAKSHINA KANNADA; AND QUASH
THE ORDER PASSED BY THE PRINCIPAL SENIOR CITY CIVIL
JUDGE AND JMFC AT BELTHANGADY IN O.S.NO.69/2015 ON
DATED 26.03.2018 ON ORDER OF DISMISSED THE I.A.NO.8
I.E., ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 8B9 GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:-
The present writ petition is preferred by the
plaintiff assailing the Order dated 26.03.2018 passed
on I.A. No.VIII in O.S. No.69/2015 on the file of the
- 3 -
Principle Senior Civil Judge and JMFC, Belthangady,
Dakshina Kannada (hereinafter referred to as 8the
Trial Court9 for short), whereby the application filed by
the plaintiff under Order VI Rule 17 of CPC seeking
permission to amend the plaint has been dismissed by
the Trial Court.
2.
Heard
the
learned
counsel
for
the
petitioner/plaintiff
and
learned
counsel
for
the
respondents/defendants.
The suit in OS No.69/2015 is filed for
partition and separate possession and for other
consequential reliefs against the defendants in respect
of suit schedule properties. Defendant Nos.2 and 3
appeared and filed their written statement denying the
plaint averments.
When the matter was set in for further
evidence of plaintiff, plaintiff filed I.A. No.VIII under
- 4 -
Order VI Rule 17 of CPC seeking to amend the plaint
by adding facts at paragraph Nos.8 (a) and (b) after
paragraph No.8 and prayer (a) seeking equal share in
Bank
guarantee
and
12
FDR
amount
of
Rs.18,00,000/- and allot 1/6th share with interest at
15% p.a. from 20.08.2011 till realization, stating that
earlier suit OS No.32/2013 filed by plaintiff seeking
share in respect of FDR amount of Rs.18,00,000/- was
dismissed as not maintainable with liberty to include
the schedule property of OS No.32/2013 in the
present OS No.69/2015.
The defendants filed objections to said I.A.
No.VIII stating that the application is filed after
commencement of evidence and no averment is made
in the affidavit accompanying I.A. No.VIII that inspite
of
due
diligence
the
plaintiff
could
not
seek
amendment before commencement of evidence and
sought to dismiss the application. The trial Court
- 5 -
rejected I.A. No.VIII holding that evidence has
commenced and no prima-facie case is made out that
the property sought be included is joint family
property.
Aggrieved by the said order, the plaintiff
has preferred the present petition.
Sri. B.M. Gunjal, learned counsel for the
petitioner would submit that the present application
filed under Order VI Rule 17 of CPC is sought to insert
facts
and
prayer
to
include
FDR
amount
of
Rs.18,00,000/- seeking equal share in view of liberty
granted in OS No.32/2013 and sought to allow I.A.
No.VIII. It is the contention of the learned counsel for
the petitioner that the Trial Court has erroneously
dismissed the application filed by the petitioner
without considering the fact that the defendants had
consented for including the schedule property in OS
- 6 -
No.69/2015. and thus, sought to allow the writ
petition.
8.
Per contra, Sri. Deepak Wagle, learned
counsel on behalf of Sri. A. Keshava Bhat, learned
counsel for respondent Nos.3 and 6 would justify the
order passed by the Trial Court on I.A. No.VIII and
contended that same does not call for any interference
by this Court. It is contended by the learned counsel
that the plaintiff has not made out a case to include
the schedule property in the present suit as the
application
for
amendment
is
filed
after
commencement of trial and sought to dismiss the writ
petition.
9.
Heard the learned counsel for the parties
and considered the rival contention and perused the
material on record.
- 7 -
10. It is relevant to note that the Trial Court by
order dated 26.03.2018 has rejected the application-
I.A. No.VIII on the ground that the present application
does not survive for consideration either in law or on
facts, without considering the judgment and decree
dated 14.12.2017 passed in OS No.32/2013, whereby,
the Court has dismissed the suit of the plaintiff with a
liberty to include the properties by way of amendment
in the present suit. The relevant portion of the order
reads as under:
<19. Further the counsel for defendants also
submitted that, the defendants are ready to
give consent for implead the schedule property
of this suit, in the said suit, so there may
