Writ Petition No. 31747 of 2018 · The High Court
Case Details
- 1 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 31747 OF 2018 (GM-CPC) BETWEEN: SRI. HUCHEGOWDA HEGGADE @ HUCHEGOWDA, AGED ABOUT 65 YEARS, S/O LATE KURI HUCHEGOWDA, ALIAS KURI HUCHAIAH, R/AT NO. 671, OPP. VIJAYA TALKIES, HUNSUR-MYSORE MAIN ROAD, HINKAL, MYSORE - 570 017. (BY SRI. Y.V. PRAKASH, ADVOCATE FOR SRI. Y.K. NARAYANA SHARMA, ADVOCATE) …PETITIONER AND: 1. Digitally signed by SHARADAVANI B Location: High Court of Karnataka SRI. BOJEGOWDA AGED ABOUT 74 YEARS S/O HELAVEGOWDA, R/AT NO. 2757, BASAVANAGUDI BEEDI, RANGANATHA BADAVANE, 2ND DIVISION, KALKUNIKE, HUNSUR TOWN - 571 105. 2. SRI. AJJIHUCHAIAH AGED ABOUT 71 YEARS, S/O LATE HELAVEGOWDA, - 2 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR RESIDING AT JADAGANAKOPPALU VILLAGE, KEBBEKOPPALU POST KASBA HOBLI, HUNSUR TALUK, MYSORE DISTRICT - 571 105. 3. 4. 5. 6. 7.
Legal Reasoning
SRI BOOLI HUCHAIAH AGED ABOUT 71 YEARS S/O LATE HELAVEGOWDA, R/AT JADAGANAKOPPALU VILLAGE, KEBBEKOPPALU POST KASBA HOBLI, HUNSUR TALUK, MYSORE DISTRICT - 571 105. SMT. POJAMMA AGED ABOUT 49 YEARS W/O SRI BOOLI HUCHAIAH, R/AT 2811, RANGANATHA BADAVANE 2ND DIVISION, KALKUNIKE HUNSUR TOWN - 571 105. SMT. CHIKKAMMA AGED ABOUT 69 YEARS, W/O SRI KULLEGOWDA, R/AT 2547, NEAR HUCHAMMA TEMPLE, KURAJANA BEEDI, KALKUNIKE HUNSUR TALUK - 571 105. SMT. LAKSHMAMMA AGED ABOUT 54 YEARS W/O LATE SRI CHIKKAHUCHAIAH, R/AT 2452, ARALIKDAMARADA BEEDI, KALKUNIKE, HUNSUR TOWN - 571 105. SRI. K.H. SHIVANNA, DEAD BY LRS. - 3 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR 7(A). SMT. K.S. MANJULA AGED ABOUT 47 YEARS, D/O LATE SRI K.H. SHIVANNA R/AT NO. 1425, 11TH CROSS, JANATHANAGARA MYSURU - 570 022. 7(B). SRI. K.S. BALARAJU AGED ABOUT 44 YEARS, S/O LATE SRI. K. H. SHIVANNA R/AT NO. 50, K.R.NAGAR MAIN ROAD, RANGANATHA BADAVANE KALKUNIKE, HUNSUR TOWN - 571 105. 7(C). SMT. K.S. LAKSHMAMMA, AGED ABOUT 44 YEARS, D/O LATE SRI. K.H. SHIVANNA R/AT NO. 774, HUNSUR MAIN ROAD, MYSORE DISTRICT - 571 105. SMT. RAMAMMA AGED ABOUT 79 YEARS, W/O LATE SRI. K.B. HONNAPPA, SRI ASHOK KUMARA AGED ABOUT 54 YEARS, S/O LATE SRI K.B. HONNAPPA, SRI. ASHWATH AGED ABOUT 54 YEARS, S/O LATE SRI K.B. HONNAPPA, SRI SHARATH KUMAR AGED ABOUT 49 YEARS, S/O LATE SRI. K.B. HONNAPPA, 8. 9. 10. 11. - 4 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR 12. 13. 14. 15. 16. 17. SRI CHANDRA SHEKAR AGED ABOUT 47 YEARS, S/O LATE SRI. K. B. HONNAPPA, RESPONDENTS NO.8 TO 12 ARE RESIDING AT NO. 2759, BASAVANAGUDI BEEDI, KALKUNIKE HUNSUR TOWN - 571 105. SRI. HONNEGOWDA AGED ABOUT 74 YEARS, S/O LATE HARAVEGOWDA, SMT. GOWRAMMA AGED ABOUT 45 YEARS, W/O LATE SRI HUCHEGOWDA, RESPONDENTS NO.13 AND 14 ARE RESIDING AT NO.2885, OLD K.R.NAGAR MAIN ROAD, KALKUNIKE, HUNSUR TOWN - 571 105. SMT. DODDAMARIYAMMA, AGED ABOUT 69 YEARS, W/O SRI TENT CHENNAPPA, SMT. SANNAMARIYAMMA AGED ABOUT 66 YEARS, D/O LATE KARIYAPPA, C/O SRI TENT CHENNAPPA, RESPONDENTS NO.15 AND 16 ARE RESIDING AT NO. 104, HOSABEEDI HINKAL, MYSORE - 570 017. SRI. OADHUVAIAH AGED ABOUT 79 YEARS, S/O LATE SOMAPPA, RESIDING AT NO. 2208, - 5 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR 4TH DIVISION, K.R.NAGARA MAIN ROAD, KALKUNIKE HUNSUR TOWN - 571 105. 18. 19. 20. 21. SRI. CHIKKAKEMPAIAH AGED ABOUT 69 YEARS, S/O LATE CHIKKAKENDAIAH, RESIDING AT NO. 2255, HATTIMARADA ROAD, (MARIGUDI ROAD), KALKUNIKE HUNSUR TOWN - 571 105. SRI. SRIDHAR AGED ABOUT 44 YEARS, S/O SRI KENDAGANNEGOWDA, SRI KUMARA AGED ABOUT 41 YEARS, S/O SRI KENDAGANNEGOWDA, RESPONDENTS 19 AND 20 ARE RESIDING AT NO. 2255, HATTIMARADA ROAD, (MARIGUDI ROAD), KALKUNIKE HUNSUR TOWN - 571 105. SMT. BEERAMMA AGED ABOUT 47 YEARS, W/O SRI NARAYANA SWAMY, RESIDING AT NO. 2792 BASAVANAGUDI ROAD, KALKUNIKE, HUNSUR TOWN - 571 105. …RESPONDENTS (BY SRI. H.M. MANJESH, ADVOCATE FOR R1; R2, R3, R7(A) AND R7(C), R8, R9, R10, R11 ARE SERVED VIDE ORDER DATED 20.07.2023; NOTICE TO R15 AND R16, R4, R5, R6, R7(B), R13, R19, R20 AND R21 ARE HELD SUFFICIENT; DEEMED SERVICE OF NOTICE IN RESPECT OF R12, R14, R17 AND R18 (VIDE ORDER DATED 29.01.2025)) - 6 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR THIS WP FILED IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-SET ASIDE THE ORDER DATED 26.06.2018 PASSED ON I.A.NO.6 IN R.A.NO.711/2018 BY THE COURT OF THE 8TH ADDITIONAL DISTRICT & SESSIONS JUDGE, MYSORE, SITTING AT HUNSUR AS PER ANNEXURE-K AND PASS NECESSARY ORDERS ALLOWING THE SAID APPLICATION I.A.NO.6 IN R.A.NO.711/2014 AND PERMIT THE PETITIONER TO AMEND THE PLAINT AS PROPOSED IN THE APPLICATION I.A.NO.6, BY ALLOWING THIS WRIT PETITION WITH COSTS. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking following relief: "the petitioner respectfully prays that this Hon'ble Court be pleased to pass necessary orders and issue a writ of Certiorari or other appropriate writ or Order and set aside the order dated 26.06.2018 passed on I.A.No.6 in R.A.No.711/2018 by the Court of the 8th Additional District and Sessions Judge, Mysore, sitting at Hunsur as per Annexure "K" and pass necessary orders allowing the said application I.A.No.6 in R.A.No.711/2014 and permit the petitioner to amend the plaint as proposed in the application I.A.No.6, by allowing this writ petition with costs in the interest of justice". 2. Learned counsel appearing for petitioner submits that petitioner filed an application seeking amendment of the plaint in Regular Appeal filed by him, - 7 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR intending to incorporate certain facts which came to his knowledge after dismissal of the suit. It is submitted that respondents claim that there is a partition on 05.09.2003 and based on such partition revenue records have been affected. However, in the said partition, the petitioner was neither a party nor a signatory and this aspect was not within the knowledge of the petitioner when the original suit was filed. Hence, they later discovered that fact is required to be brought on record by way of amendment in the pending appeal. 3. It is submitted that the respondents have not disclosed this fact in the written statement in the pending suit. If they had disclosed, he would have filed an application for amendment in the suit. Hence, the petitioner was compelled to file an application in the appeal. It is submitted that, if the amendment is necessary to decide the controversy involved between the parties, it can be amended during the appellate stage. In support of his contention he placed reliance on the - 8 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR decision of the Hon'ble Supreme Court in the case of DINESH GOYAL ALIAS PAPPU V/s. SUMAN AGARWAL reported in AIR 2024 SUPREME COURT 4779 and the decision of this Court in the case of SMT. PUTTAMARAMMA V/S. GIRIYAPPA AND OTHERS reported in 2016 (1) KCCR 73 and submits that the proposed amendment is necessary to decide the controversy involved between the
Decision
parties. Hence, he seeks to allow the writ petition. 4. Per contra, Sri. H.M.Manjesh, learned counsel appearing for respondent No.1 supports the impugned order and submits that there is absolutely no due diligence on the part of the petitioner, he cannot be allowed to bring facts at the appellate stage, in the re-joinder filed by the petitioner in the suit. He clearly admits that the revenue records were affected pursuant to the partition. If the application for amendment in the appellate Court is allowed it would change the nature of the pleadings pleaded in the suit. Hence, he seeks to dismiss the petition. - 9 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR 5. I have heard the arguments of the learned counsel for the petitioner, learned counsel for respondent Nos.1 and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 6. The petitioner filed O.S.No.262/2009 for relief of partition and separate possession. The said suit came to be dismissed vide judgment dated 10.10.2014. Being aggrieved by the same, the petitioner filed an appeal in RA.No.711/2014 and the same is pending before the District Judge, Mysuru. In the said appeal, petitioner filed an application under Order 6 Rule 17 read with Section 151 of CPC seeking for amendment of the plaint. The application indicates that the petitioner intends to bring the fact that the respondents claim that there was partition on 05.09.2003 and pursuant to the said partition, revenue records have been changed. It is contended that in the said partition dated 05.09.2003, the petitioner is not a party. Hence, the said fact is required to be brought on - 10 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR record for the complete adjudication of the dispute between the parties. 7. The petitioner claims that the said fact came to his knowledge recently. Such a vague assertion of coming to knowledge at a later point of time, after the dismissal of the suit, cannot be accepted unless the said statements are supported with acceptable material on record. The application filed for amendment of the plaint in appeal is without any ground and the Trial Court has rightly observed that the allowing of application for amendment would amount to introducing new set of facts which were never pleaded by the parties before the Court. It is also brought to the notice of this Court that the respondent has filed O.S.No.18/2015 seeking for partition and in the said suit, the petitioner impleaded himself as a party. That being the case, I am of the considered view that the proposed amendment sought by the petitioner is without any due diligence and there is no material on record to come to conclusion that those facts are necessary to - 11 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR decide the controversy involved between the parties. It is well settled position of law that the appellate Court has power to allow the application for amendment of plaint, such power are to be exercised sparingly and only in case where the amendment is necessary for determining the real controversy between the parties and when the party seeking amendment has acted with due diligence. Allowing such an application at the appellate stage would defeat the purpose of the appeal and cause prejudice to the respondent. 8. The Trial Court considering the rival submissions has come to the conclusion and rejected the application. I do not find any error in the findings recorded by the Trial court. 9. Learned counsel for the petitioner has relied on two decisions referred supra. There is no dispute with regard to the proposition of law laid down by the Hon'ble Supreme Court and this Court in the aforesaid decisions. However, the said proposition of law is required to be - 12 - NC: 2025:KHC:22469 WP No. 31747 of 2018 HC-KAR applied, taking note of the peculiar facts and circumstances of the case. 10. In the case on hand, the application for amendment is filed in the appellate stage and it can also be allowed if it is relevant to decide the dispute between the parties and filed after due diligence. Under such circumstances, I am of the considered view that the judgments relied by the learned counsel for the petitioner are not helpful to be applied to the peculiar facts of this case. For the aforementioned reasons I proceed to pass the following: ORDER i) Writ Petition is devoid of merits and the same is rejected. Sd/- (VIJAYKUMAR A. PATIL) JUDGE LDC List No.: 1 Sl No.: 22 CT: BHK