Writ Petition No. 31383 of 2019 · The High Court
Case Details
- 1 - NC: 2025:KHC:618 WP No. 31383 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. 31383 OF 2019 (GM-CPC) BETWEEN: 1. SRI. B.S. KESHAVA IYENGAR S/O LATE M.S.SHESADRI IYENGAR AGED ABOUT 72 YERS R/A BOOVANAHALLY VILLAGE HASSAN TALUK-573201 2. SRI B.K.DEEPAK S/O SRI B.S.KESHAVA IYENGAR AGED ABOUT 40 YEARS R/A BOOVANAHALLY VILLAGE HASSAN TALUK-573 201 (BY SRI. ABHINAV RAMANAND A., ADVOCATE) …PETITIONERS AND: Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
Legal Reasoning
1. SRI B.V. KARIGOWDA S/O VENKATEGOWDA AGED ABOUT 72 YEARS 2. SRI CHIKKALINGEGOWDA S/O BOMMEGOWDA AGED ABOUT 79 YEARS 3. SRI VENUGOPAL A. S/O PATEL ANNEGOWDA AGED ABOUT 73 YEARS 4. SRI.PADMARAJ S/O PUTTEGOWDA AGED ABOUT 63 YEARS - 2 - NC: 2025:KHC:618 WP No. 31383 of 2019 5. SRI B.K.LAKSHMANA S/O KARIYAIAH AGED ABOUT 46 YEARS 6. SRI B.V.THIMMEGOWDA S/O VENKATEGOWDA AGED ABOUT 56 YEARS RESPONDENT 1 TO 6 ARE R/A BOOVANAHALLY VILLAGE KASABA HOBLI HASSAN-573 201 (BY SRI.GIRISH B.BALADARE, ADVOCATE FOR R1, R3 TO R6 R2 SERVED AND UNREPRESENTED) …RESPONDENTS THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED: 24.06.2019 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT HASSAN IN O.S.NO.18/2010 VIDE ANNEXURE-K TO THE W.P. AND REJECT I.A.NO.23 DATED:08.04.2019 FILED BY RESPONDENTS IN O.S.NO.18/2010 VIDE ANNEXURE-H TO THE W.P. BY ALLOWING THE PRESENT PETITION. 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 The present writ petition is filed aggrieved by the order passed in I.A.No.23 in O.S.No.18/2010 dated 24.06.2019 by the Additional Senior Civil Judge, Hassan, whereby the trial Court had allowed the application filed by the defendants under Order 6 Rule 17 of CPC. 2. The facts of the case are that the petitioner herein who is the plaintiff had filed the suit seeking declaration that the - 3 - NC: 2025:KHC:618 WP No. 31383 of 2019 plaintiffs are the absolute owners of plaint A schedule properties (except Sy.No.74 and 244) and plaint "D" schedule property and consequential relief of permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the properties. Earlier, in the suit, the defendants had filed I.A.No.22 under Order 6 Rule 17 of CPC seeking permission to amend the written statement. Through proposed amendment the defendants wanted to add a paragraph that the property belongs to a public trust and as such, the suit is not maintainable. That I.A. came to be dismissed by the trial Court holding that the amendment is not necessary to adjudicate the dispute between the parties at a belated stage and it is necessary to consider the question of law and the Court had framed an additional issue and dismissed I.A.No.22. Thereafter, the suit itself came to be dismissed. Aggrieved thereby, the plaintiffs had filed R.A.No.2/2018 and in that, the defendants had filed cross appeal. The Appellate Court by judgment and decree dated 03.07.2018 had allowed the appeal filed by the plaintiffs and cross objections filed by the defendants and set aside the order of the trial Court and remanded the matter for fresh disposal, the Appellate Court - 4 - NC: 2025:KHC:618 WP No. 31383 of 2019 had observed that the trial Court shall frame additional issue and also afford the opportunity to both the parties to amend their pleadings and to file rejoinder if any and also to lead evidence. Considering the pendency of the case, the trial Court was directed to dispose off the matter within ten months. 3. After the remand, the defendants once again filed an application i.e., I.A.No.23 under Order 6 Rule 17 of CPC seeking amendment of the written statement on the maintainability of the suit in view of Section 92 of CPC which came to be allowed by the trial Court by way of order impugned. The trial Court while allowing the application observed that no doubt, the doctrine of res-judicata is applicable to interlocutory applications also but in the peculiar facts of the present case, it is to be noted that the proposed amendment sought for by the defendants is with respect to maintainability of the suit filed by the plaintiff and it touches the very jurisdiction of the Court to entertain the suit of the plaintiff and such a point of law can be urged even at the time of arguments without supporting pleadings. But the Appellate Court in R.A.No.2/2018 has clearly reserved the liberty to both sides to get their pleadings amended and file rejoinders, if any. - 5 - NC: 2025:KHC:618 WP No. 31383 of 2019 Under such circumstances, the application filed by the defendants cannot be said to be hit by doctrine of res-judicata and the proposed amendment is very much essential for effective disposal of the case and accordingly allowed the application. 4. Learned counsel appearing for the petitioners submits that once an application filed by the defendant under Order 6 Rule 17 of CPC is dismissed, he cannot re-agitate the very same issue and file another application under the guise of the remand order. He submits that the same is barred by res- judicata. In this regard, learned counsel had relied on the judgment of the Hon'ble Apex Court in case of S.Ramachandra Rao Vs. S.Nagabhushana Rao and Others1 and he had relied on another judgment of the Hon'ble Apex Court in case of Vidyabai and Others Vs. Padmalatha and Another2. Relying on these judgments, learned counsel submits that after the commencement of trial without even an averment that in spite of due diligence, these particular facts could not be brought to the notice of the Court and the Court had allowed the application. He submits that while passing the 1 2022 LiveLaw (SC) 861 2 (2009) 2 SCC 409 - 6 - NC: 2025:KHC:618 WP No. 31383 of 2019 order, the Court ought to have given reasons for allowing the application. It is submitted that simply basing on an order passed in the R.A., the Court had allowed application filed under Order 6 Rule 17 of CPC which is contrary to the settled law. 5. Learned counsel appearing for the respondents/ defendants submits that when the matter is remanded by the Appellate Court, the Court had given liberty to all the parties to amend their pleadings, if any and to file appropriate applications and in the guise of the liberty given by the Court, the question of res-judicata will not arise. As the property is a public trust property, the suit is not maintainable and as the issue goes to the root of the matter which is very much essential for adjudicating the dispute between the parties, the amendment has been allowed by the trial Court and there is no illegality with the said order. 6. Having heard the learned counsels on either side, perused the entire material on record. The application under Order 6 Rule 17 of CPC was originally dismissed by the Court and the suit was also dismissed. The Appellate Court had remanded the matter and the defendants have again moved - 7 - NC: 2025:KHC:618 WP No. 31383 of 2019 the same application which came to be allowed only on the ground that liberty is given by the Appellate Court. This is a suit of the year 2010. The case of the defendant even in the written statement is that the property is a public trust property. The trial Court had framed additional issue whether the defendants prove that the Court has no subjective jurisdiction to entertain the suit. By way of this amendment, again the defendants want to amend the written statement stating that the Court has no subjective jurisdiction to entertain the suit. The additional issue that is framed, the amendment that is sought are one and the same though it is worded in a different manner. When there is an additional issue, there was no reason for the defendants to file a petition seeking amendment and the Court without any reason had allowed the petition. 7. When the Court allowed the application that was questioned before this Court by way of this present writ petition if such an amendment is ordered under law, no prejudice would be caused to the plaintiffs and the contention of the learned counsel for the petitioners/plaintiffs is that the defendants have been filing these kinds of applications to protract the proceedings. This Court is not able to understand and - 8 - NC: 2025:KHC:618 WP No. 31383 of 2019 appreciate the submission of the counsel for the petitioners as this writ petition is filed in the year 2019 and till 2025, the same is pending before this Court. Even with the amended written statement, if the case was heard by this time, the case would have been taken to a logical conclusion. It is very unfortunate that in the civil litigation, the parties for the reasons best known to them are filing the cases just because a remedy is available to the party. The fact remains is that the Court while allowing an application under Order 6 Rule 17 of CPC ought to have looked at several aspects, particularly, the necessity for the amendment whether the case is made out by the defendant or not. Considering the additional issue already framed, such an amendment is not at all necessary. Hence, this Court is passing the following order:
Decision
ORDER i. The order passed in I.A.No.23 in O.S.No.18/2010 dated 24.06.2019 by the Additional Senior Civil Judge, Hassan, is set aside. ii. As this is the suit of the year 2010, the trial Court shall proceed with the matter and - 9 - NC: 2025:KHC:618 WP No. 31383 of 2019 dispose off the same as expeditiously as possible, but not later than six months. iii. Accordingly, the writ petition is allowed. iv. All I.As. in this writ petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 46