IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION NO.52429 OF 2018 (GM-CPC) Between:
1. Smt.Akkaiyamma, D/o. Late. Sri.Venkataramaiah, Aged about 71 years, 2. Sri.T.M.Ramesh, S/o.Smt.Akkaiyamma, Aged about 47 years, Both petitioners 1 & 2 residing at 409, Vipul Spring Manor Apartment, Flat No.A3, 3rd Floor, 11th Main, 9th Cross, BEML Layout, Thubarahalli, Bengaluru-560 066.
…Petitioners (By Sri.H.S.Dwarakanath, Advocate) And:
1. Smt.Channamma, W/o. Late Sri.M.Nagaraj, Aged about 71 years, 2. Sri.Sampath Kumar, S/o.Late Sri.M.Nagaraj, Aged about 53 years, 3. Smt.Anitha, D/o.Late Sri.M.Nagaraj, Aged about 51 years, 4. Smt.Vishalakshi, D/o.Late Sri.M.Nagaraj, Aged about 38 years, Respondents 1 to 4 Are residing at Challaghatta Village, Varthur Hobli, Bengaluru East Taluk, Bengaluru-560 037.
5. Smt.Akkaiyamma, Since dead by her LRs 6. Sri.Shantharama Reddy, S/o.Late Muthurayappa, Aged about 73 years, 7. Smt.Nagavenamma, D/o.Late Muthurayappa, Aged about 66 years, Respondents 6 & 7 are Residing at Tagachuguppa Village, Kengeri Hobli, Bengaluru South Taluk-560 060.
8. Sri.Munirangappa, Since dead by LRs, 9. Smt.Nirmalamma, W/o.Late Munirangappa, Aged about 76 years, 10. Sri.M.Venkatesh, S/o.Late Munirangappa, Aged about 49 years, 11. Smt.Muniyamma, D/o.Late Muninanjappa, Aged about 51 years, 12. Sri.Nagaraja, S/o.Late Muninanjappa, Aged about 31 years, 13. Sri.Aruna, S/o.Late Muninanjappa, Aged about 29 years, 14. Sri.Krishnappa, Since dead by his LRs, 15. Smt.Lakshmamma, W/o. Late Krishnappa, Aged about 66 years, 16. Sri.Jagadish, S/o.Late Krishnappa, Aged about 47 years, 17. Sri.Shivappa, S/o.Late Chikka Muniswamappa, Aged about 66 years, Respondents 8 to 17 are Residing at Challaghatta Village, Varthur Hobli, Bengaluru East Taluk, Bengaluru-560 037.
18. Sri.Chikkamuniyappa, Since dead by his LRs 19. Sri.Muninanjareddy, S/o.Late Chikkamuniyappa, Aged about 71 years, 20. Sri.Venkatesh Reddy, S/o.Late Chikkamuniyappa, Aged about 66 years, 21. Sri.Ramamurthy, S/o.Late Chikkamuniyappa, Aged about 61 years, 22. Smt.Padmamma, Since dead by LRs, 23. Smt.Sandhya Devi, D/o.Late Padmamma, Aged about 69 years, 24. Smt.Manjula Sharma, D/o.Late Padmamma, Aged about 67 years, 25. Smt.Vijayamma, D/o.Late Padmamma, Aged about 65 years, 26. Smt.Radhamma, D/o.Late Padmamma, Aged about 63 years, 27. Sri.Venkatesh Reddy, S/o.Late Narayanappa, Aged about 65 years, 28. Smt.Gowramma, Since dead by L.R, (Respondent No.28 Sri.Lokendranatha) 29. Sri.Lokendranatha, S/o.Late Ramakrishna Reddy, Aged about 56 years, Respondents 18 to 29 are Residing at Challaghatta Village, Varthur Hobli, Bengaluru East Taluk, Bengaluru-560 037.
30. The Amarjyothi House Building Co-operative Society Limited, No.140, MNK Rao Road, Basavanagudi, Bengaluru-560 004.
31. Sri.T.Venkatesh Murthy, S/o.Smt. Venkatalakshmamma, Aged about 55 years, 32. Smt.T.Pushpa, D/o.Smt.Venkatalakshmamma, Aged about 52 years, 33. Smt.T.Sujatha, D/o.Smt.Venkatalakshmamma, Aged about 50 years, 34. Smt.T.Nirmala, D/o.Smt.Venkatalakshmamma, Aged about 46 years, 35. Smt.T.Bharathi, D/o.Smt.Venkatalakshmamma, Aged about 39 years, 36. Smt.T.Arathi, D/o.Smt.Venkatalakshmamma, Aged about 37 years, Respondents 31 to 36 Are residing at No.22, Challaghatta Village, Yemalur Post, Bengaluru-560 037.
37. Smt.M.Shaila, D/o.Akkayamma, Aged about 52 years, Residing at Basapura Village, Hosa Road, Bengaluru-560 030. …Respondents (By Sri.Saikiran, Advocate, for, R6 Sri.G.Papireddy, Advocate, for R20 R-3 Served v/o/d.28.11.2018 notice to R5, R7 to R19 & R21-37 dispensed with v/o/d 28.11.2018 copy served on H.Srinivas, Advocate for R1-R4 before trial court) This Writ Petition is filed under Article 227 of the Constitution of India praying to set aside the order dated 03.11.2018 passed in O.S.No.9626/2007 by the City Civil Judge, Bengaluru (CCH-16) dismissing I.A.No.31 under Order VI Rules 17 read with Section 151 of CPC to amend the written statement vide Annexure-A and etc.
This Writ Petition coming on for Orders, this day, the Court made the following:
O R D E R Heard the petitioners’ counsel and the learned counsel for respondents Sri.G.Papireddy.
2. Annexure-A is the order of the trial Court on I.A.No.31 filed under Order 6 rule 17 of CPC by the defendants 2 and 25. These two defendants wanted to amend their written statement in order to include certain properties which according to them are also available for partition. They have stated that when they saw the plaint in O.S.No.5990/2002 filed by one Venkatesh Reddy against their family member, they came to know that these properties also belonged to their family and hence they should also be included in the present suit.
3. Learned counsel for the petitioners submits that though the defendants have contended that the partition had already taken place on 24.08.2012, the suit for partition filed by the respondents is not maintainable. Yet in the alternative, the defendants want to place on record that some more properties had not been included by the plaintiffs in the suit and those properties should also be included. In case the Court were to hold that partition had not taken place on 24.02.2012, then the properties sought to be included by the defendants should also be considered at the time of partition.
4. Sri.G.Papireddy, learned counsel for the respondents submits that suit is of the year 2007 and very belatedly defendant Nos. 2 and 25 came up with the proposed amendment and trial Court has rightly dismissed the application.
5. The reasons that the trial Court has given for rejecting the application are not convincing. According to it the defendants 2 and 25 effected partition on 24.08.2012 i.e., during the pendency of the suit. These two defendants were also aware of the decree in O.S.No.5990/2002.
6. While deciding an application for amendment the Court of first instance should keep in mind the relief’s sought for in the suit and how the parties have founded their respective pleadings. Of course, there are certain cardinal principles governing the amendment of pleadings and they are necessary to be followed. In the present case, all that the defendants 2 and 25 want to state by amending their written statement is that there are certain other properties which should also be included in the suit. They might have taken up a plea about a partition having already taken place, but it is argued by counsel for petitioners that in case the court were to come to conclusion ultimately that the suit has to be decreed, the properties that defendants 2 and 25 have shown to be available for partition should also be considered. The trial Court should have approached from the angle as to how the interest of other parties to the suit is affected if amendment to written statement is permitted. Mere permitting an amendment will not end in accepting the case of a party who proposes amendment; ultimate decision whether to grant a decree for partition even in these properties can be taken after recording evidence.
Therefore, I come to conclusion that writ petition deserves to be allowed and now the following order:
7. Order dated 03.11.2018 passed on I.A.No.31 filed under Order 6 Rule 17 of CPC is set aside. I.A. No.31 is allowed. Defendants No.2 and 25 are permitted to carry out amendment to the written statement.
Sd/- JUDGE NS