Writ Petition No. 31215 of 2019 · The High Court
Case Details
- 1 - NC: 2025:KHC:453 WP No. 31215 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 31215 OF 2019 (GM-CPC) BETWEEN: 1. SMT. SADIQ UNNISSA W/O LATE MADAR SAB, AGED ABOUT 60 YEARS. 2. SRI. MUSKHAN KHANUM S/O LATE SHABANA BANU & SALEEM KHAN, AGED ABOUT 20 YEARS.
Legal Reasoning
3. SRI. MAHABOOB KHAN S/O LATE SHABANA BANU & SALEEM KHAN AGED ABOUT 13 YEARS. 4. SRI. SHABAS KHAN S/O LATE SHABANA BANU & SALEEM KHAN AGED ABOUT 11 YEARS, R/O KHARADI MOHALLA SIRA TOWN -572 137 TUMAKURU DISTRICT TUMAKURU P3 AND P4 SINCE MINORS REP. BY THEIR MATERNAL GRAND MOTHER SMT. SADIQ UNNISSA. Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA 5. SRI. NAJEER S/O LATE MADA SAB AGED ABOUT 33 YEARS 6. SMT. SALMA BANU D/O LATE MADAR SAB AGED ABOUT 31 YEARS - 2 - NC: 2025:KHC:453 WP No. 31215 of 2019 7. SRI. MOHAMMED RASHEED D/O LATE MADAR SAB AGED ABOUT 27 YEARS 8. SRI. SUMAYA BANU S/O LATE MADAR SAB AGED ABOUT 25 YEARS 9. SRI. MOHAMMED HUSSAIN S/O LATE MADAR SAB AGED ABOUT 24 YEARS ALL ARE R/O KHARADI MOHALLA, SIRA TOWN -572 137, TUMAKURU DISTRICT. (BY SRI. V.B. SIDDARAMAIAH, ADVOCATE) …PETITIONERS AND: 1. SRI. MOHAMMED JALEEL, S/O LATE HUSSAIN SAB, AGED ABOUT 65 YEARS. 2. SMT. MUJEEB W/O LATE MOHAMMED GHOUSE, AGED ABOUT 65 YEARS. 3. SMT. SHABEENA D/O LATE MOHAMMED GHOUSE, AGED ABOUT 50 YEARS. 4. SRI. MOHAMMED ASLAM S/O LATE MOHAMMED GHOUSE AGED ABOUT 47 YEARS. 5. SMT. MOUSEENA D/O LATE MOHAMMED GHOUSE AGED ABOUT 45 YEARS. - 3 - NC: 2025:KHC:453 WP No. 31215 of 2019 6. SRI. MUBEENA W/O LATE MOHAMMED GHOUSE AGED ABOUT 43 YEARS. 7. SRI. MOHAMMED JEELAN W/O LATE MOHAMMED GHOUSE AGED ABOUT 41 YEARS. RESPONDENTS NO.1 TO 7 ARE R/O PARK MOHALLA, SIRA TOWN-572 137, TUMAKURU DISTRICT 8. SRI. ATHAULLA, S/O LATE HUSSAIN SAB, AGED ABOUT 53 YEARS. 9. SRI. DADAPEER S/O LATE AMEER SAB AGED ABOUT 40 YEARS. 10. SRI. REHAN S/O LATE AMEER SAB, AGED ABOUT 37 YEARS. 11. SRI. HUSSAIN S/O LATE AMEER SAB AGED ABOUT 35 YEARS. 12. SRI. MAHABOOD S/O LATE AMEER SAB AGED ABOUT 33 YEARS. RESPONDENTS NO.8 TO 12 ARE R/O. KHARADI MOHALLA, SIRA TOWN 572 37, TUMAKURU DISTRICT. (BY SRI. KESHAV R AGNIHOTRI, ADVOCATE FOR R1, R3, R4, R5, R6, R10 AND R12; V/O/D 02.09.2022, NOTICE TO R2 TO R11 ARE D/W) …RESPONDENTS - 4 - NC: 2025:KHC:453 WP No. 31215 of 2019 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 14.06.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, LAT SIRA IN O.S.NO.45/2014, PASSED ON THE APPLICATION FILED BY THE PETITIONERS U/O 6, LRULE 17 OF CPC FOR AMENDMENT OF THE PLAINT, VIDE ANNEXURE- F AND THEREBY ALLOW THE APPLICATION FILED BY THE PETITIONERS, VIDE ANNEXURE-D AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed on the I.A. filed under Order VI Rule 17 of CPC in O.S.No.45/2014 dated 14.06.2019, by the Principal Civil Judge and JMFC, Sira, the petitioners are before this court. 2. The original plaintiff had filed the suit seeking the relief of permanent injunction. It is the case of the plaintiff that the suit schedule property originally belonged to one Asma Bi who purchased the property through registered sale deed dated 01.01.1991 and after the said purchase, she was in lawful possession and enjoyment of the property and her name was reflected in all the municipal records. It is stated that Asma Bi is the mother of the original plaintiff and she executed - 5 - NC: 2025:KHC:453 WP No. 31215 of 2019 registered Will in favour of the plaintiff on 01.01.1997 and the mother of the plaintiff died on 13.12.2000. Now, by way of amendment, the legal representative No.1(e) of the original plaintiff wants to add that the property is gifted orally and possession of the property was delivered in favour of the plaintiff. The application filed seeking amendment came to be dismissed by the trial court by way of the impugned order. The trial court while dismissing the application, observed that on perusal of the record, there is no whisper about the gift. The applicant cannot plead new facts which are not in the knowledge of the original plaintiff. In general, if there is any title deed, then definitely, the plaintiff should narrate the same in his plaint and the original plaintiff has not stated anything about the gift deed. There are no supporting documents to believe the existence of the alleged gift deed. Accordingly, the application is dismissed. 3. Learned counsel appearing for the petitioners submits that while entertaining the application under Order VI Rule 17 of CPC, the court cannot go into the merits of the matter. It is stated that in the Mohammedan Law, the gift may be an oral gift and there need not be a document to witness the - 6 - NC: 2025:KHC:453 WP No. 31215 of 2019 same and he submits that only the issues were framed and now if the amendment is allowed, no prejudice will be caused to the defendants. The court, without considering the injustice that is to be caused to the plaintiff, had dismissed the application. 4. Learned counsel appearing for the respondents / defendants submits that the legal representative of the original plaintiff by way of an amendment cannot introduce altogether a new case. He submits that when the original plaintiff had not stated anything about the gift deed and is relying on a Will, now the legal representatives are taking an inconsistent stand by way of an amendment, which is not permissible. It is submitted that the court had rightly considered the application and dismissed the same. 5. Having heard the learned counsel on either side, perused the materials on record. It is the consistent case of the original plaintiff that his mother has executed a Will in his favour and he is in possession of the property and he has sought for injunction against the defendants. Now, by way of an amendment, one of the legal representatives of the original plaintiff wants to amend the pleadings by saying that the - 7 - NC: 2025:KHC:453 WP No. 31215 of 2019 property was orally gifted by his mother and possession was delivered to him, which is clearly an inconsistent stand and by way of this amendment, he is introducing a new case. Already issues are framed. Now, when the application is filed under Order VI Rule 17 of CPC, the party has to prove that inspite of due diligence, they could not bring all these facts to the notice of the court. It is stated that they were not able to properly advice the advocate. The original plaintiff who has filed the suit is aware of the facts and he has stated those facts. Now, the legal representatives cannot introduce a new case. Even on that ground also, the writ petition needs to be dismissed. Accordingly, the following:
Decision
ORDER i) The writ petition is dismissed. ii) All I.As. in the writ petition, shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE RD