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2002 DIGILAW 548 (KAR)

N. v. JAYAGOPAL VS N. V. VIJAYAGOPALAN

2002-09-02

N.K.PATIL

body2002
PATIL, J. ( 1 ) THIS revision is directed against the order dated 13th January, 2000 passed by the XXII Addl. City Civil Judge, Bangalore, on I. A. XVII in O. S. No. 5487/1987. ( 2 ) THE 1st respondent herein has filed application under Order 6 Rule 17 r/w Section 151 CPC to include the suit schedule properties mentioned in the said IA as joint family properties and that all the co-parceners have equal right over the same. Hence, it is necessary to add this properties. ( 3 ) THE petitioner herein has filed detailed objections to the said IA contending that these two properties mentioned in the IA are self acquired properties of himself and his wife and they are not joint family properties. He has also taken a specific stand that the application filed by the 1st respondent does not disclose the nature of the properties and the extent or boundaries and how they are included as the joint family properties. He further stated that the said application was filed after more than 7years and pressed the same after 13 years. Without taking into consideration the case made out by the petitioner herein, the Trial Court has allowed the ia filed by the 1st respondent holding that the burden is on the 1st respondent to prove and that it is matter of evidence. Feeling aggrieved by the impugned order, the petitioner has filed this revision. ( 4 ) THE principal submission of the learned Senior Counsel is that in the amendment to Rule 17 proviso it is clearly stated thus:"provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the parties could not have raised the matter before commencing the trial". He submitted that in the present case, the 1st respondent has filed I. A. after the commencement of the trial. In view of the amendment to Rule 17 CPC, the revision is not maintainable. There is also inordinate delay of more than 7 years in filing the application for amendment and thereafter he has pressed the said application for orders after 13 years. The inordinate delay itself suffice for this court to set aside the impugned order. In view of the amendment to Rule 17 CPC, the revision is not maintainable. There is also inordinate delay of more than 7 years in filing the application for amendment and thereafter he has pressed the said application for orders after 13 years. The inordinate delay itself suffice for this court to set aside the impugned order. Further he placed reliance on the judgment in case of BISAKHA RANI GHOSE vs SATISH shandra ROY SINGHA1 wherein it is stated:-"affidavits must be either affirmed as true to knowledge or from information received provided the source information is disclosed, or as to what the deponent believes to be true provided that the grounds for such belief are stated. It is easy to see that the words "to the best of my knowledge, means nothing, This kind of verification cannot be accepted. "he is quick to take me to the affidavit filed by the 1 st respondent and pointed out that nothing is forthcoming with regard to the source of information the deponent gathered with regard to the schedule properties mentioned in his application. Therefore, taking into consideration this aspect of this matter, the impugned order is liable to be set aside. ( 5 ) PER contra, the learned Counsel for the 1st respondent, interalia, contended that the Trial Court while passing the impugned order observed that the burden is on the 1st respondent to prove the same whether it is joint family property or not and it is a matter of evidence and this aspect of the matter has been rightly considered by the Trial Court and the application was allowed to avoid the multiplicity of litigation. But he has failed to persuade this court with regard to the delay in filing the application and pressing the same after lapse of 13 years. ( 6 ) AS rightly pointed out by the learned Senior Counsel for the petitioner, it is not in dispute that the 1st respondent has filed the said IA after lapse of 7 years and the said application was pressed after 13 years. Though the same contention was urged before the trial Court, the Trial Court-has not considered the same. Secondly, in the affidavit filed by the 1st respondent in support of IA it is not stated about the source of information that how the properties mentioned in the application are included as the joint family properties. Though the same contention was urged before the trial Court, the Trial Court-has not considered the same. Secondly, in the affidavit filed by the 1st respondent in support of IA it is not stated about the source of information that how the properties mentioned in the application are included as the joint family properties. Therefore, in my considered view, the reasoning assigned by the Trial Court is contrary to the material on record and I do not find any justification to sustain the impugned order passed by the Trial Court. Further it is significant to note here itself that as per the amendment to Rule 17 proviso, the said application filed by the 1st respondent is not maintainable. ( 7 ) HAVING regard to the facts and circumstances of the case and taking into consideration the material on record, the impugned order is liable to be set aside. For the foregoing reasons, revision is allowed. The impugned order dated 13th January, 2000 passed by the XXII Addl. City Civil judge, Bangalore, on I. A. , XVII in O. S. No. 5487/1987 is set aside. The parties to bear their own costs. --- *** --- .