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2018 DIGILAW 831 (KAR)

M. Ganesh v. M. Vijayalakshmi

2018-07-26

SHANKAR GANAPATHI PANDIT

body2018
ORDER : 1. The petitioner is before this Court challenging the order dated 20.01.2017 on I.A. No. 17, order dated 20.01.2017 on I.A. No. 18 and order dated 20.01.2017 on I.A. No. 19 in O.S. No. 5076/1999 on the file of the 38th City Civil Judge, Bengaluru. 2. The petitioner who is the party-in-person is Defendant No. 7 and 1st respondent is the 1st plaintiff in O.S. No. 5076/1999 which is filed for partition and separate possession. The suit is of the year 1999. The parties have completed their evidence and the matter was at the stage of cross examination of the defendants. Defendant No. 7 who is the petitioner herein has filed three applications i.e. I.A. No. 17 under Order VI Rule 17 read with Section 151 of CPC to amend the written statement by including three paragraphs, I.A. No. 18 under Order VIII Rule 1(A) read with Section 151 of CPC for production of documents and I.A. No. 19 under Order 14 Rule 5 read with Section 151 of CPC for amendment of issues. The said applications were resisted by the defendants by filing objections. The trial Court by separate orders dated 20.01.2017 rejected I.A. Nos. 18 and 19 and partly allowed I.A. No. 17 for amendment. The said orders are impugned in the present writ petition. 3. Heard the petitioner-party-in-person and learned counsel for respondent No. 1. Perused the writ petition papers. 4. Petitioner, party-in-person who is also an advocate by profession submits that he has filed application for amendment of written statement to include three paragraphs. The said amendment became necessary in pursuance to the order passed in R.F.A. No. 35/2005 disposed of on 29.09.2010. In the said order, the petitioner herein was the plaintiff and the defendants therein were the respondents. The defendants were restrained from interfering with the plaintiff's possession and enjoyment of the outhouse of the plaint 'A' schedule properties and it was further ordered in the RFA that the plaintiffs shall not be dispossessed from the plaint 'A' schedule outhouse except in accordance with law. It is his submission that those amendments are necessary as shown at paragraph 3 of the application-I.A. No. 17, which is with regard to property site No. 571, which is not made as suit schedule property. I.A. No. 18 is filed seeking to produce the sketch. I.A. No. 19 is filed for amendment of issues. It is his submission that those amendments are necessary as shown at paragraph 3 of the application-I.A. No. 17, which is with regard to property site No. 571, which is not made as suit schedule property. I.A. No. 18 is filed seeking to produce the sketch. I.A. No. 19 is filed for amendment of issues. The party-in-person submits that amendment of written statement, production of sketch and amendment of issues are very much necessary for proper adjudication of the issues involved in the suit. Therefore, those I.A's. may be allowed by allowing the writ petition. 5. Per contra, learned counsel for the respondents submits that those I.A's. are filed at a belated stage. All those I.A's are not necessary for deciding the issues. The suit is only for partition. As to whether the parties in the suit are entitled for share in the suit schedule properties or not, the present applications are necessary. The suit is at the fag end and defendant No. 7 does not want the suit to be disposed of and defendant No. 7 wants suit to be kept pending so that, he can enjoy the outhouse portion which is in his occupation. 6. The trial Court has rejected I.A. No. 18 and I.A. No. 19 while partly allowing I.A. No. 17. Amendment to the written statement was allowed insofar as site No. 571 which was not included in the suit schedule properties. The other two paragraphs, the trial Court found it unnecessary to decide the issues involved in the suit. The trial Court passed an order assigning the reasons while considering I.A. No. 17 for amendment. Written statement is filed by the petitioner-defendant No. 7 on 21.07.1999. According to defendant No. 7, the amendment became necessary, in view of the order passed by this Court in RFA which was disposed of on 29.09.2010. Till 2017 the applicant has not taken any steps to get the amendment to the written statement. Moreover, the trial Court with regard to paragraph 1 of the amendment has held that in the written statement, it is contended that the suit filed by the plaintiff for partition and separate possession, does not survive in respect of 'A' Schedule properties since the defendant No. 7 is absolute owner on the will executed by late deceased Jayamma who is the sister of defendant No. 7. In respect of paragraph No. 2, the trial Court has stated that paragraph No. 1 and 2 is mutually destructive when compared to the written statement already filed by him. Furthermore, trial Court has stated that even after due diligence he has not carried out the amendment earlier. No reasons are assigned for filing of the amendment after more than five years from the date of order passed in RFA by this Court. Therefore, I am of the view that the trial Court has not committed any error or illegality in partly allowing I.A. No. 17. 7. I.A. No. 18 is filed under Order VIII Rule 1(A) read with Section 151 of CPC seeking permission to produce document as per memo dated 20.01.2017. Along with the memo, defendant No. 7 has filed the sketch. According to him, the said document is very much necessary for adjudication of the issues involved in the suit. On careful examination of the memo along with the document with measurement and boundaries as mentioned in the sketch and also the evidence and judgment and decree passed in O.S. No. 3696/1998, the trial Court is of the opinion that the sketch which is not authenticated document, is of no help to defendant No. 7. The trial Court has rightly rejected I.A. No. 18 for production of documents since it is unauthenticated document. The trial Court has further observed that when the boundaries and measurements which is mentioned in the judgment and decree in O.S. No. 3696/1998, the sketch is wholly unnecessary. In my view, the trial Court has not committed any illegality or error in passing orders on I.A. No. 18. 8. I.A. No. 19 is filed under Order 14 Rule 5 read with Section 151 of CPC requesting the Court to amend the issues already framed. Defendant No. 7 has sought for deletion of issue Nos. 2 and 3 and for framing additional issues as to "whether defendant No. 7 proves that RFA 35/2005 was partly allowed by judgment and decree dated 29.09.2010 and he is in possession of rare portion of Item No. 1 of suit schedule 'A' property." When the judgment in RFA No. 35/2005 has restrained the other defendants from interfering with the possession of defendant No. 7 from outhouse of suit 'A' schedule property, again framing issues on the said aspect is wholly unnecessary. Order itself speaks that RFA is partly allowed. The trial Court has rightly observed that the applications are filed only to protract the proceedings. It is also observed that the judgment copy of RFA 35/2005 is already on record as Ex. D5. Therefore, the trial Court has rightly come to the conclusion that there is no necessity to delete issue Nos. 2 and 3 and for framing additional issue as sought by defendant No. 7. 9. Further, from the proceedings, it could be seen that defendant No. 7/petitioner who is an Advocate by profession, has filed applications only to protract the proceeding. 10. This Court in RFA No. 35/2005 has observed in respect of defendant No. 7/petitioner as follows: "The provisions of the Bar Council of India Rules are intended to regulate the conduct of the Advocates, the restrictions and the manner of practice, the standards of professional conduct and etiquette, restrictions on other employments, the right of practice and matters of a like nature. The Rules therefore require to be complied with. When an Advocate indulges in acts of misconduct, it is the duty of the Bar Council to initiate all such proceedings as is necessary to uphold the Advocates Act as well as the Bar Council of India Rules. Under the circumstances, I' am of the considered prima facie view that the plaintiff has indulged in acts of professional misconduct etc., violating the Bar Council of India Rules. It is therefore necessary that the Bar Council initiates appropriate proceedings in accordance with the Advocates Act and the Bar Council of India Rules against the plaintiff Sri. M. Ganesh for acts of professional misconduct etc." 11. The above observations would speak volumes about the petitioner-defendant No. 7. 12. The petitioner has not made out any ground to interfere with the order passed by the trial Court. I find no error or illegality with the order passed by the trial Court. Writ petition is dismissed accordingly.