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2015 DIGILAW 325 (KAR)

Kasturibai @ Lakkavva v. Subhas @ Subhash Reddi

2015-03-24

B.VEERAPPA

body2015
ORDER : The above writ petition is filed by the petitioner who is 1st defendant in O.S.45/2011 challenging the order dated 7.1.2015 passed on I.A.10, rejecting his application filed under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure, for amendment of the Written Statement. 2. The 1st respondent who is the plaintiff filed O.S.No.45/2011 for declaration that defendants 3 and 4 are the owners of the suit schedule properties by virtue of being the heirs of the deceased Siddappa Ramappa Sataraddi and Smt.Sushilawwa W/o Siddappa Sataraddi, and for perpetual injunction to restrain defendants 1 and 2 from interfering with peaceful possession and enjoyment of suit schedule properties by plaintiff and defendants 3 and 4. It is contended that plaintiff is the brother of the 4th defendant and 3rd defendant is mother of the plaintiff and defendant4 and he has produced genealogy in para2 of the plaint, which reads as under: Smt Sushilawwa @ Sushila (1st wife)(died on 27.11.2010) Smt.Gangawwa (2nd wife) (Deft. No.3) No Issues Subhas (Plaintiff) Shridevi (Deft.4) The present petitioner/defendant1 filed written statement on 22.8.2011, and admitted the genealogy stated in para2 of the plaint. Defendant No.2 also filed written statement and defendants 3 and 4 did not file any written statement. After completion of pleadings, the matter was posted for evidence and plaintiff filed affidavit evidence PW.1 on 22.05.2012 and the matter was posted for cross-examination of PW.1. At that stage, the 1st defendant filed application under Order VI Rule 17 read with Section 151 of Civil Procedure Code, to amend the Written Statement by adding Para No.11(A) in between Para Nos.11 and 12, stating that Smt. Sushilawwa @ Sushila was only the legally wedded wife of Siddappa S/o Ramappa Sataraddi and there was no occasion to marry Siddappa Sataraddi with Gangawwa, etc. The said application was resisted by the plaintiff, by filing detailed objections to the amendment application. After considering the entire material, the trial Court passed the impugned order dated 7.1.2015 rejecting I.A.10, holding that the amendment application is filed by defendant No.1 with an intention to withdraw the admission made by her and the same cannot be allowed. 3. As against the said order, the present writ petition is filed. 4. I have heard the learned Counsel for the parties to the lis. 5. 3. As against the said order, the present writ petition is filed. 4. I have heard the learned Counsel for the parties to the lis. 5. Sri.P.H.Godkhindi, learned Counsel for the petitioner strenuously contended that the impugned order passed by the learned Civil Judge is illegal and also stated that by way of amendment of written statement adding para11(A), Defendant No.1 want to state the clear facts of the case and the amendment will in no way prejudice the case of the plaintiff nor introduce the new case, and it will have correct facts of the case for crossexamination. Therefore, he sought to set aside the impugned order passed by the learned Civil Judge. 6. Sri.N.L.Batakurki appearing for the 1st respondent/plaintiff sought to justify the impugned order. 7. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record. 8. The only point for consideration is: “Whether the proposed amendment sought by the 1st defendant, introduces a new case or it is nothing but to withdraw the earlier admissions made in the written statement by defendant No.1?. 9. After considering the original plaint, the defence taken by defendant1 and the amendment sought, it clearly depicts that defendant1 by way of amendment, wants to withdraw certain admissions made in the original written statement including the relationship, and this is nothing but introducing an altogether a new case/defence by the defendant1. In the original written statement, the relationship between the deceased Siddappa Sataraddi and defendant3Gangawwa, plaintiff and defendant4 has been admitted. Now, by way of amendment, 1st defendant wants to plead that defendant No.3, plaintiff and defendant No.4 are strangers to the family of Siddappa Sataraddi. 10. It is an admitted fact that the 1st respondent/plaintiff filed suit for declaration to declare that the plaintiff, defendants 3 and 4 are the absolute owners of the suit schedule properties being the heirs of deceased Siddappa S/o Ramappa Sataraddi and Smt.Sushilawwa @ Sushila and for perpetual injunction. The 1st defendant in para2 of the Written Statement has admitted the genealogy which is as under: “2) The geneology narrated in para No.2 of the plaint is correct. The 1st defendant in para2 of the Written Statement has admitted the genealogy which is as under: “2) The geneology narrated in para No.2 of the plaint is correct. But the description of the suit properties shown in scheduleA is not in accordance with the law and the same is denied in toto by this defendant.” In para3 of the Written Statement, the 1st defendant has stated as follows: “It is also true that said Siddappa married defendant No.3 as his second wife and through her plaintiff and defendant4 were born.” It is also admitted that the 1st defendant filed amendment application on 21.7.2014 to amend the Written Statement already filed by her, seeking permission to insert Para11(A) in between Para Nos.11 and 12, which reads as under: “11.A. Smt.Sushilawwa @ Sushila was only the legally wedded wife of Siddappa S/o Ramappa Sataraddi. The deceased Gangawwa defendant No.3 is the mother of plaintiff and defendant No.4 Shridevi, was not the 2nd wife of Siddappa Ramappa Sataraddi. The marriage of Gangawwa had taken place with one Venkangouda S/o Bhimanagouda Patil in the year 1956 in front of house of Venkanagouda at Kaghadal village, Tq: Saundatti, Dist: Belgaum. There was no occasion to marry the Siddappa Sataraddi with Gangawwa. In fact no Marriage has taken place between Siddappa Sataraddi and the Defendant No.3, Gangawwa. The plaintiff be put to strict proof of the validity of marriage between defendant No.3 and deceased Siddappa as falsely alleged in the plaint. In order to knock of the suit properties, the plaintiff has created false story by setting up a false case and trying to have wrongful gain. Absolutely there is no relationship between plaintiff and his family members with Siddappa Sataraddi and his only wife late Sushilawwa Sataraddi. Above all the suit schedule ‘A’ properties have been given to Late Sushilawwa by her own father namely Govindappa S/o Bhimappa Ningappanavar, even earlier to the year 1979. Even the property bearing RS.No.21/2 measuring 12 Acres of Hirekoppa village was gifted by Siddappa Sataraddi to Smt.Sushilawwa was her own property. No other person is having any right, title, interest to question the absolute title of Sushilawwa in respect of this property also. That is why Smt.Sushilawwa sold the said property to one Timmaraddi Venkaraddi Somapur of Hirekoppa, in Naragund Taluk, Dist: Gadag in the year 1982. No other person is having any right, title, interest to question the absolute title of Sushilawwa in respect of this property also. That is why Smt.Sushilawwa sold the said property to one Timmaraddi Venkaraddi Somapur of Hirekoppa, in Naragund Taluk, Dist: Gadag in the year 1982. Therefore, plaintiff and defendant No.3 and defendant No.4 are totally stranger to the family of late Siddappa Sataraddi and his wife Sushilawwa. The deceased Siddappa Ramappa Sataraddi died on 25.05.2008 at Kuragovinakoppa village, Nargund Taluk, Dist: Gadag and Sushilavva Urf Sushila w/o Siddappa died on 27.11.2010 at Gulagala Jambagi village, Mudhol Taluk, Dist: Bagalkot had no issues. Again it is quite surprising that even though Defendant No.3 Gangawwa has already died on 14.09.1996 at Kuragovinakoppa village, Nargund Taluk Dist: Gadag, she has been added in this suit as Defendant No.3 by stating the false reason by the plaintiff. Plaintiff has not approached this Hon’ble Court with clean hand. The Hon’ble Court has to take serious note on this conduct of plaintiff. Plaintiff has wrongly impleaded defendant No.2 in this suit, because the late Sushilawwa @ Sushila had not executed any will in favour of Defendant No.2 i.e. Somappa S/o Basappa Hotteppanavar at any time. There is collusion between plaintiff and defendant No.2, trying to knock off the suit property by somehow. Further this defendant No.1 specifically and categorically deny the contents of W.S. of defendant No.2 and his counter claim. There is no pleading about the counter claim in the W.S. and counter claim is also barred by time. More to all counter claim against codefendant is not maintainable” Considering the entire material on record, the Trial Court recorded a finding, that on perusal of the written statement of defendant1 and the proposed amendment, it transpires that defendant1 has already admitted in written statement that defendant3Gangawwa is the second wife of Siddappa Sataraddi. 11. On perusal of the entire written statement it depicts that relationship between Siddappa and Gangawwa is admitted. However, on perusal of the proposed amendment it discloses that defendant1 wants to withdraw the said admission made by her in the written statement and negate the admissions made by her about the relationship between Gangawwa and Siddappa Satraddi and the application filed for amendment is nothing but introducing new facts by withdrawal of earlier admissions, which does not inspire confidence in the case put forth by defendant1. That apart, the evidence of the parties has already commenced as long back as on 22.05.2012 and the plaintiff has already examined as PW.1 and got marked several documents and the case is posted for crossexamination of PW.1. 12. The facts are not in dispute, that earlier defendant1 has admitted the genealogy made in para2 of the plaint, which includes Gangawwadefendant3, Subhash (Plaintiff) and Shridevi (defendant4). They are the LRs of Siddappa Ramappa Sataraddi. In the written statement, the 1st defendant has also admitted that Siddappa Ramappa Sataraddi married defendant3 Gangawwa as his second wife and out of their wedlock, the plaintiff and defendant4 were born. By way of amendment of written statement, in para11(A) the defendant1 wants to state clearly the fact that Smt Sushilawwa @ Sushila was the only legally wedded wife of Siddappa Ramappa Sataraddi. The deceased Gangawwadefendant3 is the mother of plaintiff and defendant No.4, was not the second wife of Siddappa Ramappa Sataraddi. as the marriage of Gangawwa took place with one Venkangouda S/o Bhimanagouda Patil, in the year 1956 in front of house of Venkanagouda at Kaghadal village, Tq: Saundatti, Dist: Belgaum. In her written statement defendant No.1 has also categorically stated that there was no occasion for Siddappa Ramappa Sataraddi to marry Gangawwa and in fact no marriage has taken place between Siddappa Ramappa Sataraddi and defendant No.3Gangawwa and in order to knock off the suit schedule properties, the plaintiff has introduced a false plea. It is also stated in the written statement that no other person is having any right, title or interest to question the absolute title of Sushilawwa in respect of the suit properties. That is why Smt.Sushilawwa sold the said property to one timmaraddi Venkaraddi Somapur of Hirekoppa, in Naragund Taluk, Dist: Gadag, in the year 1982. Therefore, plaintiff and defendant3 and defendant4 are totally strangers to the family of late Siddappa Sataraddi. 13. The suit is filed by the plaintiff for declaration of his title and defendants 3 and 4 in respect of the suit property in question. It is for the plaintiff to establish his title based on the merits of the case. The amendment of written statement sought for by defendant No.1 is nothing but introduction of new case. The Hon’ble Supreme Court, while considering amendment of Written Statement, has specifically stated in the case of Modi Spinning and Weaving Mills Co. Ltd. Vs. It is for the plaintiff to establish his title based on the merits of the case. The amendment of written statement sought for by defendant No.1 is nothing but introduction of new case. The Hon’ble Supreme Court, while considering amendment of Written Statement, has specifically stated in the case of Modi Spinning and Weaving Mills Co. Ltd. Vs. Ldha Ram and Company, reported in AIR 1988 S.C. 680, has held that: “by means of an amendment the Defendant wanted to introduce an entirely different case. In the facts and said circumstances, it was held that the Defendants cannot be allowed to change completely the case made out in their written statement and to substitute an entirely different new case and that if such amendments are allowed the plaintiffs will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the Defendants.” 14. The Hon’ble Supreme Court in the case of Heeralal Vs. Kayalan Mal and Ors, reported in AIR 1998 S.C.618, has held that: “once written statement contains and admission in favour of the plaintiff, the amendment of such admission of the Defendants cannot be allowed to be withdrawn and such withdrawal would amount to totally displacing the case of the plaintiff which would cause him irretrievable prejudice.” The Hon’ble Supreme Court, in the case of B.K. Narayana Pillai vs. Parameshwaran Pillai and Anr. reported in (2000)1 SCC 712 , it was held: “though the defendant has a right to take alternative pleas in defence by way of amendment, it would be subject to qualification that (i) Proposed amendment should not result in injustice to the other side; (ii) any admission made in favour of plaintiff should not be withdrawn; and (iii) inconsistent and contradictory allegations which negate admitted facts should not be raised.” In the present case, the admission made in the original written statement and the amendment sought for by way of 1st introducing para11(A), clearly indicates that the defendant wants to take away the admission made in paras2 and 3 of the original Written Statement and in the written statement he has admitted the relationship of 3rd defendant and plaintiff and defendant4 and very strangely in contravention of the same, by way of amendment, he has specifically stated that the plaintiff, defendants3 and 4 are strangers to the family of Siddappa Sataraddi. This clearly indicates that the 1st defendant wants to introduce altogether a new case and to withdraw the admissions made in original written statement, which is not permissible. 15. The learned Civil Judge, on appreciation of the entire material on record, has rightly rejected the amendment sought for by the 1st defendant and the same is in accordance with laws. I see no grounds to interfere with the impugned order under Articles 226 and 227 of the Constitution of India. Accordingly, the writ petition is dismissed.