IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23" DAY OF OCTOBER,
BEFORE ' H'
THE HON'BLE MR. JUSTICE A.N. vENuGOPA..LA'_fGOIA[OA 3
WRIT PETITION NO.7679;{2OI:OT'(I3t%I;C'Ié'Q3 . _V I T'
BETWEEN:
Mr. Desi Lingu,
Son of Late Chikka Ningaiah, '
Aged about 54 years, A '
Residing at No.76/1, I . .
15" Cross, Nachanahalli Pa|y'a,_ U A
3.P.Nagar, A
Mysore. '
__ I 'F PETITIONER
(By Sri KarTIa|, !,3\CF}I.) » *
AND:
1. Sr: Des[gOwd'e,_ ' «
Son of {Late Desi.qOwda.,.."'
Aged about .69 years,
Re2sidEI'.g at NO'-.w77/1.,
19:' CrI:Oss;-- f\lachana'hal|t Palya,
. ' =J,.P.N_agar.,,
M$r's0f'e,; - A'
2. C.Mud;:§abpa,
Son of Late Chikka Boregowda,
Agedaiaout 44 years.
F.S'r ifM.Paramesh,
Son Of C.Muddappa,
EAged about 39 years.
K}
Respondent No.2 and 3 are
Residing at ‘E’ Block, J.P.i\lagar,
Opp: to MUDA Park, Mysore,
C/o. Sri Chandrappa,
Traffic Circle Inspector,
Devaraja Police Station,
Mysore.
4. Sri Lingappa,
Since dead by his L.Rs.
Sri Ningappa @ Patel,
Son of Late Lingappa,
Aged about 64 years.
5. Sri Kalegowda, ._ , _
Since dead by his i_.Rs. ‘
Sri Chandru, A
Aged about_58,years.]
Both are R~es’i~d at _N-0.2868’,
Saras’w”aith.ipt3ran*if;”
Myso..re._ . V" " A 1 RESPONDENTS
(By Sri H.Shivakurnai’,.’AdV:-,_for R1;
Sri B.V.Sharii<a'ra Narayaiiia Rao, Adv. for R2 & R3;
Sri T;;A';i{arumbai_a'h, Adv. for R4;
‘~ _R5 but u n’– represented)
. A – ” ~’iiri’is,,wr’i’t petition is filed under Articles 226 and 227 of
the”-iCon’stii:utio.hv=”‘of India praying to call for records in
O.Si.NiO.977/’Z0015 on the file Of the III Additional Civil
Eudage (E”-__3″r’.E”m’.), Mysore and after verifying the propriety or
‘otherwise; of the order dated 13.10.2009 passed on
,ap.pl.i,catiori under Order VI Rule 7 of CPC (I.A.VII), vide
._ ‘~Anneka:re — D; set aside the order dated 13.10.2009 vide
‘ ..A’n_ne:<t;ire — D and etc.,
This petition coming on for preliminary hearing in 'B'
"'r.,iiVrjiroup, this day the Court made the following:
RDE
Petitioner has filed O.S.i\lo.977/2005 in the Couitof
Civil }udge (Sr. Divn.) Mysore, against the respoVn.d'4e.n'ts..'forV.
the relief of partition and separate possession. l
statement was filed on 28.o3.2oo6.n'end'rtnel..tietinjfn~.ede?in°~.
the suit was contested. Issues Vwere framg-:d'iandV
plaintiff deposed as" PW-1. Petitiionerh on V
12.03.2009 under orde'n_6 F'?;ij'l'e"lv.ij'7'VV:l"€',l?C to"iopeii¥:mit the
amendment of the plaint,' t'ij.e"'_measurements
of the property"tin:-.pai:'al'Hl\io.i3-i.Va'nd~_forj'incorporation of
additional the plaint schedule.
Statement ofAll’o’bjectti.ons»_T”we-re filed on behalf of the
defendants’~..24’8i 3″and..VAt3\é..,i.p}a’yer in LA No.7 was opposed.
_ The “ti-filai.,court'”.h_as rejected LA No.7. Aggrieved, the
piiaintiiif nae this writ petition.
.””‘_M_r,’l{a’ma|, learned advocate appearing for the
V . petiti”onei<'contended that, the proposed amendment reiates
risubistiltultion of measurement in para No.3 of the plaint
._j__ai"'.wd"addition of an item of property in the plaint schedule,
M
/'I
which does not change the status or nature of the suit and
hence, ought to have been allowed. Learned _,co'u..ns~e!
submits that, by mere change in the measure_rnV_e.nt"i~'o,f.:ijrien"_
property and by addition of an item,,,,ogf_ pro.p'erty:'_in""a vsuit," "
which is one for partition, no prejud,ice;'woru!d».be jcauséi-dy to
the respondents and the amendment'-beinyg n,:ecess.ary.3 for
deciding the real question in____i:contr.o_versy'««.i_between the
parties, to avoid muEtip|i'cit'y.,0'«Egp:govce'edvingis, ought to have
been ailowed. V V
3. Rao, learned counsel
appearing””f’or.,];thedifiresjpoywn-dents””‘2V4 & 3, the contesting
defendants,’ firstiy’conte4n_’ded._.that, there is suppression of
true facts, in”~.th’at.,_thou_gh~–“trial has commenced, there is a
“‘«–bAoid-ii’imig_s£:ea,dingAVi”averrnent in the writ petition that,
Vfdevidernce._din.,”th:e=above matter has not yet commenced as
one_’this_A.”vdsd_a.te”. Learned counsel submits that,
Vd’=«.__itpetitiorser/’;.:3|aintiff has deposed in the suit and hence, it is
“:ino.to’p_en to him to have suppressed the same and make a
misleading statement. it was contended that, petitioner not
‘(,_.,+*”‘
having approached the court with clean hands, is not
entitled to seek any relief in the writ jurisdiction. Secondly,
the suit was filed seeking partition and separate
only in respect of land measuring 1 acre 33 guntas, ”
Survey No.176/1 with definite boun-d’a’ri’e«s.A Vto-‘the; V
specific case pleaded in the plaint, a1not’l~ier itelmiof.,pto’p,e’rty’w._
measuring 2 acres 14 guntas’-the,» Survey ‘vvith ‘V
total different boundarie*s,_ wasi”sori;I.,’9ght’-»,.to be”i’ncor}porated,
long after the institutioélnmof counsel
submits that, respondenfitsl land bearing
Survey Nos.;1″7:€’%,,_;’–.1 ‘as ._asmO9.09. 1992 under
the regi’steredisvalVe.__:dee’d..,VV_a-n_d hence, the petitioner cannot
pretend andseek”the.,’re:.li.ef:,”” Learned counsel submits that,
V valua4i:;>l’e ,rights,.__V”vvhich have accrued in favour of
3 would be affected and that, the proposed
Ap’!ea.,jmg.,.,Ai’s._:also=”ex~facie barred by limitation. Learned
_ counsel made submissions in support of the findings and
;co.ncl_.usio~i1..of the trial court in rejecting LA No.7.
\.
rt”.
6
4. The trial court has found that, I.A No.7 has been
filed after the commencement of trial and that, there is
twisting of facts by the plaintiff to suit his convenienc.§:-:::.”»..Et
has further found that, there is no due diligence
of the piaintiff and hence, the prayer in LA be
ailowed.
5. in view of the rivai-.co=n_tention__s,’ Ihaye:”perujsed ” it
the writ petition record. ,.-The poén–t.,”f’or'(:onsiderati.onv’§is:
Whether the impugned ifs:r._irr;aitiona! and
“”” “petiti:o-n do’es”‘contain a statement at
para No.”10″t_o ‘the evidence in the matter
has not yet c”o.m’men.ced._as–“on the date.” Mr.Kama|, iearned
“‘«.aAdvo’:ci§te_…,:ap._pearixng»—-for the petitioner submits that, the
V’=.statemen–t_’isfincorrect. Learned counsei conceded that, the
tri.ac!’_”o«f t_rie’e,.stjit has commenced and the Diaintiff has
“»,.___’v.deposed.jIn the circumstances, the proviso appended to
A of Order 6 CPC gets attracted and the power of the
court to allow the party to amend the pie;-xiing is restricted.
{x i
7
7. The only material reason stated in the affidavit
in support of LA No.7 is that, the mistake in the schedule is
not intentional, but on account of previous counsel—-___not
mentioning the appropriate schedule. It is
there is no due diligence. The defendants 2 &
written statement on 28.03.2006 have”-cate’gorVi.ca’i:vlyf
that, the 2″” defendant purchased blearing
Nos.176/1 8?. 175/2 under the’-re’gistered…sal,ej’»_.de-ed””dated ‘ 0
09.09.1992 from its prev_ious,low-nae-rs””»and hie”-was put in
possession of both the items’ oi’:_§rope’ArtVi_e_5Lon that day and
the entries in revenue his name and that,
\ V.
he has Qvbtaimed”–‘De.r_n1issi..o’ri-pt.the Deputy Commissioner to
make use’o.f4’14 gu.nt”aS in Survey No.176/2 for non~
agricujturai purposes and the same was granted on
“o’7«..:’:o.1saf4fit has been further stated that, 2″” defendant
s’ti,bsequenti,§/1 oi>t~ained licence to carry out construction in
_ acco”rdan,.c’e the plan, on the alienated portion of the
,V,l”and,_bea’ring Survey No.176/2 and the same was granted on
2289.1-1–.*’i1995 and thereafter, hetook up construction and
completed it and has occupied the house so constructed
/5
along with his family members and stayed there till 2005
and subsequently leased out to a tenant. It hasbeen
further stated that, he sold distinct portions in
individuals during 1993-95 itself by execut.in,g4_j’=.reg.istered'”l
sale deeds and put them in possegssion4g’of”‘th’e_’respectliygegllt
portions also and also aboutythe falrnilly arra.nVgement’£; iii’.
regard to the land bearing Surveuyv-510,176/’l2-.. ‘!Tl’lVl:JS it is clear
that, certain rights ha’«.ief”‘y«.ac<.§Vrued' iriwifayour of "the said
defendants and such righitslcannlot fbe-"permitted to be taken
away by permittingytheta-men'd}ne'nt.':–"' *
""" "cT.he};'triaig:,;c–oij'rt"h'as 'taken into consideration the
materia[l.._._asp_eCts_ifo'f~-.j;heV_:°caste and having examined the
application Vcorrect'p'erspective and finding the prayer
….__t_g of fneri–.t,…l'ias rejected the application. This is
exercising the jurisdiction vested in the
trialcourti the facts and circumstances of the case, I do
7.not it appropriate to interfere with the impugned
A fo,rder;..ywhich is neither irrational nor illegal.
ls»:
In the resuit, the writ petition is devoid of merit and
shait stand dismissed.
There shail be no order as to costs.
Ksj/ –