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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON’BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.17315 OF 2021 (GM-CPC)
BETWEEN:
1 . SRI. M.R. SHIVARUDHRAH S/O RUDRAPPA AGED ABOUT 54 YEARS
SMT. B.L. RATHNAMMA AGED ABOUT 43 YEARS, WIFE OF SHIVARUDRAIAH, BOTH ARE RESIDING AT NO.198 "RAJATHADRI", 6TH 'A' MAIN, 'A' SECTOR M.I.G., YELAHANKA NEW TOWN, BANGALORE - 560064. …PETITIONERS (BY SRI. D.L.N. RAO, SENIOR COUNSEL ALONG WITH SRI. C.SRINIVASA, ADVOCATE)
AND:
1 . SRI. RUDRAPPA SON OF RUDRAPPA, AGED ABOUT 86 YEARS
2 . SRI. M.R. SOMASHEKAR AGED ABOUT 58 YEARS SON OF RUDRAPPA
3 . SMT. GEETHA SOMASHEKAR AGED ABOUT 52 YEARS
2 WIFE OF SOMASHEKARA
ALL ARE RESIDING AT "RAJATHADRI", NO.198, GROUND FLOOR 6TH 'A' MAIN, 'A' SECTOR M.I.G., YELAHANKA NEW TOWN, BANGALORE - 560064. …RESPONDENTS (BY SMT. S. SUSHEELA, SENIOR COUNSEL ALONG WITH SRI. SOMANATHA H., ADVOCATE FOR RESPONDENT NO.1; SRI. MANJUNATH, ADVOCATE FOR RESPONDENT NOS.2 AND 3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS AND SET ASIDE THE IMPUGNED ORDERS ON IA NOS.23, 24, 25 AND 27 DATED 08.09.2021 PASSED IN O.S.NO.1209/2009, ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL JUDGE (CCH-39) AT BANGALORE, VIDE ANNEXURES-P, Q AND R AND CONSEQUENTLY ALLOW THE WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendant Nos.1 and 3 in O.S.No.1209/2009 on the file of the XIV Addl. City Civil Judge and C/C XXXVIII Addl. City Civil Judge, Bengaluru, have filed this writ petition challenging the orders dated 08.09.2021 allowing I.A.No.23 filed by the plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC' for short), I.A.Nos.24 and 25 filed by the plaintiff under Section 151 of CPC and
3 under Order XVIII Rule 17 read with Section 151 of CPC to recall the stage of the suit and to recall PW.1 for further chief examination as well as I.A.No.27 filed by the defendant No.2 under Order VI Rule 17 read with Section 151 of CPC.
The parties shall henceforth be referred to as they were arrayed before the Trial Court.
The suit in O.S.No.1209/2009 was filed for partition and separate possession of the plaintiff's 1/5th share in the suit schedule properties. The defendants denied the claim of the plaintiff, based upon which, the Trial Court framed issues and set down the case for trial. At the stage of cross-examination of DW.1, the plaintiff filed I.A.No.23 under Order VI Rule 17 read with Section 151 of CPC to amend the plaint, I.A.No.24 under Section 151 of CPC to reopen the stage of the suit and I.A.No.25 under Order XVIII Rule 17 read with Section 151 of CPC to recall PW.1 for further chief examination. The defendant No.2 filed an application under Order VI Rule 17 read with
4 Section 151 of CPC to amend the written statement. The said applications were allowed by the Trial Court, which are challenged in this writ petition.
The events leading to the filing of these applications are that the plaintiff and the defendants had allegedly entered into a co-ownership agreement, in terms of which, they had agreed to treat the suit schedule properties as properties belonging to the family. The defendant Nos.1 and 3 denied the existence of such an agreement. During the course of cross-examination of DW.2, this document was confronted to him and the same was admitted and hence, marked as Ex.D345. The marking of this document was challenged before this Court in W.P.No.14488/2020. This Court in terms of the order dated 28.01.2021 set aside the order of marking such document, as it was a photocopy of the alleged deed of Co-ownership. This Court held that unless the plaintiff laid the foundation for leading secondary evidence, the said document cannot be marked in evidence. Following this
5 order, the plaintiff claimed that the original of this document was seized by the Income Tax Department during a survey conducted under Section 133A of the Income Tax Act, 1961. In order to plead this fact, the plaintiff filed an application under Order VI Rule 17 read with Section 151 of CPC. In order to adduce further evidence on the said aspect, he filed applications to reopen the stage of the suit and to recall PW.1 for further chief examination.
The defendant No.2, on the other hand, who admitted the existence of the co-ownership agreement, also filed an application to amend his written statement to admit the existence of the co-ownership agreement. These applications were allowed by the Trial Court in terms of the order dated 08.09.2021. Hence, the defendant Nos.1 and 3 being aggrieved by the said order, have filed this writ petition.
The learned Senior counsel representing the defendant Nos.1 and 3 submitted that the applications for
6 amendment of the plaint and the written statement were filed belatedly and that no explanation was offered for the delay. He submitted that if the deed of co-ownership was available with the plaintiff, he ought to have mentioned the same in the plaint and he must have mentioned the place where it was lodged. He submitted that when the document in question itself did not exist, the plaintiff cannot amend the plaint to lead evidence on that particular aspect.
The learned Senior counsel representing the plaintiff, on the other hand, submitted that this was a crucial document that had to be secured to prove the case of the plaintiff beyond any doubt. She submitted that process of the Court should be flexible to allow a party to plead all facts to effectively prove their case before the Court. She submitted that the defendant No.2, who was a party to the said document had admitted that such document was executed between the parties. She also invited the attention of the Court to the assessment order
7 passed in the case of the plaintiff, which indicated that all the members of the family had treated the business of Hotel Sharavathi that was established in the 'A' schedule property as belonging to the members of the family. Hence, she submitted that the plaintiff had to plead the fact that the said document was seized by the Income Tax Department during a survey. She also contended that an application was filed under Order XVI Rules 1, 2 and 6 read with Section 151 of CPC to summon the said document and therefore, in order to lead evidence on the said aspect, PW1 had to be recalled and therefore, the Trial Court considering the same had rightly allowed the applications.
The learned counsel for the defendant Nos.2 and 4 contended that the deed of Co-ownership was in fact entered between the parties and that said document was lying in the custody of the Income Tax Department and therefore, it was necessary to amend the written statement to plead that fact.
I have considered the submissions made by the learned counsel for the parties.
An application for amendment of pleadings, more particularly, the one filed after issues are framed cannot be allowed as a matter of course. The party seeking amendment is bound to establish that the amendment sought for is necessary for the effective and complete adjudication of the dispute between the parties. The party applying for amendment is also bound to demonstrate before the Court that despite exercise of due diligence, he or she could not seek amendment of the pleadings at the earliest point in time. It is now well settled that even a belated application for amendment could be entertained subject to such conditions as may be imposed by the Court. In the case on hand, the plaintiff has consistently claimed that the suit properties belonged to the members of the family of the plaintiff and the defendants. This is the gravamen of the plaint also. The defendant Nos.2 and 4 have conceded to the said position
9 by admitting that the parties were bound by deed of co- ownership.
In that view of the matter, this was a relevant fact that had to be brought in pleading and was crucial for the case of the plaintiff. Though the plaintiff was in possession of the photocopy of the said document, he did not make any effort to plead about the same when the plaint was filed. However, during the course of the evidence, the said document was confronted to DW.2, who admitted its execution. However, since the marking of the said document was questioned before this Court in W.P.No.14488/2020 and this Court held that the plaintiff cannot mark the documents unless proper foundation is laid under Sections 65 and 66 of the Indian Evidence Act, 1872, the plaintiff has found it convenient to secure the document, which is lodged in the custody of the Income Tax Department. In that view of the matter, though the delay in filing the application for amendment is not explained satisfactorily, but yet since this pleading is
10 necessary for the purpose of considering the case of the plaintiff, the Trial Court was justified in allowing the same. Likewise, the application filed by the defendant No.2 to amend his written statement, who too admit the execution of the said deed of co-ownership cannot be found fault with.
In addition, since this Court has allowed the application filed by the plaintiff under Order XVI Rules 1, 2 and 6 read with Section 151 of CPC, it is necessary that the stage of the suit is reopened and PW1 is recalled to mark the document that may be secured from the Income Tax Department.
In that view of the matter, the orders passed by the Trial Court does not warrant interference. Hence, this writ petition lacks merit and is dismissed.
Sd/- JUDGE
PMR