In the High Court of Karnataka, Dharwad Bench Dated This the 11 Th Day of August, 2015 Before the Hon’Ble Mr

1 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11 TH DAY OF AUGUST, 2015 BEFORE THE HON’BLE MR. JUSTICE K.N. PHANEENDRA W.P. No. 104125/2015 (GM-CPC) BETWEEN 1. GEETA, W/O CHANDRAGOUDA PATIL, AGE:37 YEARS, OCC:AGRICULTURE AND COOLIE, R/O: TUMARIKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD. 2. KUMAR. KALANGOUDA S/O CHANDRAGOUDA PATIL, AGE:17 YEARS, OCC:STUDENT, R/O: TUMARIKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD. 3. KUMARI. VIDYA D/O CHANDRAGOUDA PATIL, AGE:13 YEARS, OCC:STUDENT, R/O: TUMARIKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD. 4. KUMARI. MEGHA D/O CHANDRAGOUDA PATIL, AGE:10 YEARS, OCC:STUDENT, R/O: TUMARIKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD. 2 5. KUMAR. BASANGOUDA S/O CHANDRAGOUDA PATIL, AGE:8 YEARS, OCC:STUDENT, R/O: TUMARIKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD. PETITIONER NO.2 TO 5 ARE MINORS AND THEY ARE REPTD., BY PETITIONER NO.1- NATURAL GUARDIAN MOTHER ... PETITIONERS (BY SRI. GURURAJ M SOMAKKALAVAR, ADVOCATE) AND: RENUKA, W/O SUBHAS GHATAGE, AGE:47 YEARS, OCC:HOUSEHOLD, R/O: TUMARIKOPPA, TQ: KALAGHATAGI, DIST: DHARWAD. ... RESPONDENT (BY SRI. S R HEGDE, ADVOCATE ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER ON I.A.NO.5 DATED 06.02.2015 IN O.S.NO.103/2013 ON THE FILE OF CIVIL JUDGE AND JMFC, KALGHATAGI (ANNEXURE-E) & GRANT AN INTERIM ORDER, TO STAY THE FURTHER PROCEEDINGS IN OS NO.103/2013 ON THE FILE OF CIVIL JUDGE AND JMFC KALAGHATAGI. 3 THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R Heard the learned Counsels appearing for the petitioners and the respondent on merits, at the time of consideration of the prayer of extension of interim order. I have carefully perused the order, which is impugned in this writ petition. 2. The 1 st plaintiff in O.S. No.103/2013 (petitioner herein) along with other plaintiffs have filed the said suit against the Defendant for declaration of their title to the suit schedule property and also for cancellation of the sale deed executed By the deceased husBand of the 1 st plaintiff in favour of the Defendant and also for other consequential reliefs, such as declaration, injunction, etc. It is the case of the plaintiff that the husBand of the 1 st plaintiff was addicted to Bad and wise haBits. Taking advantage of the same, Defendant without the knowledge of the plaintiffs and 4 others, By persuading the said Chandragowda, who is the husBand of the 1 st plaintiff, had purchased the same and also got entered her name in the record of rights. Therefore, it necessitated the plaintiffs to file the said suit. 3. The Defendant appeared and filed a detailed written statement denying all the allegations made in the plaint. It is specifically stated at Para-9 of the plaint that the plaintiffs have sought for the relief of declaration and injunction and also for cancellation of the sale deed. But the plaintiffs have not paid the proper court fee as per the Karnataka Court Fee and Suit Valuation Act ( for short, KCF & SV Act’). The Defendant has also taken up other contentions in the written statement. 4. SuBsequently, the plaintiffs filed an application under Order VI Rule 17 of CPC r/w. 151 of CPC seeking amendment of the plaint By way of incorporating Para-11 to the plaint. The trial Court 5 after considering the oBjections of the Defendant, ultimately came to the conclusion that the said application is filed to cover-up the admissions made By PWs. 1 & 2 during the course of cross-examination, therefore, the said application is devoid of merit and the same is liaBle to Be dismissed. Accordingly, the said application was dismissed at the cost of Rs.200/-. 5. Admittedly, the suit was filed in the year 2013 after lapse of two years and the present application is filed after the trial Court has framed the issues and proceeded to record the evidence of the plaintiffs. According to the learned Counsel, now the case is set-down for Defendant’s evidence. 6. A careful perusal of the proposed amendment reveals that, Para-7(a) refers to explanation to the pleading already made. Actually, By the amendment sought for, the plaintiffs want to explain as to how the Defendant has misused the Bad haBits of the deceased 6 Chandragouda, how they requested the Defendant and in spite of that how the Defendant has purchased the said property and the said sale deed is a concocted document etc. But so far as the second prayer, ie., in order to amend the prayer coloumn is concerned, perhaps after the Defendant taken-up the contention that proper court fee is not paid with reference to the cancellation of the sale deed, the plaintiffs proposed to modify the prayer column stating that the said sale deed is not Binding upon the plaintiffs. 7. Admittedly, it is not a suit for partition amongst the memBers of the family and if any one of the memBers of the family sold the property ignoring the rights of the other co-parceners or family memBers, in such an eventuality, the plaintiffs would have claimed that the said sale deed is not Binding on them on their pre-existing properties. Defendant is altogether a different party, who alleged to have purchased the same from the husBand of the 1 st plaintiff. In order to avoid 7 payment of court fee for the relief sought in the plaint, amendment of the plaint is sought stating that the said sale deed is not Binding on them, which cannot Be allowed, Because of the simple reason that in the plaint averments they claimed that the said sale deed is void, as it is a concocted document and even in the Body of the plaint, the plaintiffs have sought for cancellation of the said sale deed. Therefore, they cannot Blow hot and cold at once and they cannot alter the pleadings already pleaded in the plaint and take-up totally a contradictory prayer. Therefore, I am of the opinion that the first portion of the proposed amendment at Para-7(a) is only explanatory in nature so far as Paras-5 & 6 of the plaint and it does not alter or change the nature of the suit. 8. Learned Counsel for the respondent strenuously contends that the parties have already led evidence Before the court. PWs. 1 and 3 have already Been examined and the trial Court has also oBserved that they have given some admissions in favour of the 8 Defendant. Even if the proposed amendment is allowed, that will not take away the admission already made By PWs. 1 & 2. It is only an amendment to the pleadings and not to the evidence. In the aBove said circumstances, I am of the opinion that the trial Court ought to have allowed I.A. No.5 partly and rejected the same partly, on terms. Hence, the application filed under Order VI Rule 17 of CPC deserves to Be partly allowed on payment of cost of Rs.2,000/-. 9. In the result, the following order is passed:- The petition is partly allowed. Consequently, the order dated 06.02.2015 passed By the trial Court on I.A. No.5 in O.S. No.103/2013 is partly set-aside, which refers to amendment of the prayer in the plaint. So far as the order relates to the proposed amendment at Para 7(a) is concerned, to that extent the order is confirmed and consequently I.A. No.5 is partly allowed and the 1 st plaintiff is permitted to amend the plaint as proposed at 9 Para- 7(a) in the amendment application on cost of Rs.2,000/- to Be deposited Before the trial court and to Be payaBle to the Defendant. The trial Court is directed to proceed with the case in accordance with law and dispose of the case at the earliest. The parties are directed to co-operate with the court for early disposal of the case. Sd/- JUDGE KGR*.

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