IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.37052 OF 2017 (GM-CPC) & WRIT PETITION No.40574 OF 2017 (GM-CPC) BETWEEN Channappa S/o. Late Lingappa, Aged about 64 years, R/o. Ajjagondana Halli Village, Bellavi Hobli, Tumkur Taluk-572101.
…Petitioner (By Sri. Shashidhara R., Advocate) AND 1. S. Gangaiah dead by his LR’s 1(a) Gowramma W/o. Late Gangaiah, Aged about 65 years, 1(b) Mahesh S/o. Late Gangaiah, Aged about 41 years, 1(c) Siddalingaiah S/o. Late Gangaiah, Aged about 25 years, All are R/o. Ajjagondana Halli Village, Tumkur Taluk-572101.
1(d) Mamatha W/o. Ramesh, Age major, R/o. Malehalli, Bharammasandra Post, Kora Hobli, Tumkur District-572128.
1(e) Manjula W/o. Rudresh, Age Major, R/o. Chikkanetagunte, Mookanayakanahalli Post, Kasba Hobli, Gubbi Taluk-572216, Tumkur District.
1(f) Ramya W/o. Lokesh, Major, R/o. Mallapanahalli, Hebbur Hobli, Ariyur Post, Tumkur Taluk-572101.
Tumkur District (R1 (a) to (f) amended as per court order dated 23.10.2018) 2. Bhagyamma D/o. Late Siddalingaiah, Aged about 65 years, R/o. Ajjagondana Halli Village, Bellavi Hobli, Tumkur Taluk-572101.
…Respondents (By Smt. Nalina K., Advocate for R1(a-f) & R2) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the order passed on I.A. by the II Additional Senior Civil Judge and JMFC at Tumakuru in O.S.No.359/2013 dated 01.03.2017 vide Annex-F and G.
These Writ Petitions coming on for preliminary hearing in ‘B’ group, this day, the court made the following:
ORDER Heard the counsel for the petitioner and the respondents.
2. The petitioner has assailed the order of the trial court dated 1.3.2017 in O.S.359/2013 on two applications, one filed under Order I Rule 10 (2) of CPC and the other under Order VI Rule 17 CPC produced as per Annexures-F and G to the writ petitions.
3. The petitioner is the plaintiff in the suit for partition. By amending the plaint, the petitioner wanted to include two more items of the properties in the plaint schedule and implead the purchasers of those properties as defendants 3 to 10. The trial court dismissed these two applications. For dismissing the application filed under Order VI Rule 17 CPC, the trial court has assigned the reasons that the trial has already commenced and that the documents sought to be produced by the plaintiff were already produced by one Gangamma on 10.1.2014 and 31.12.2013. The plaintiff has not shown diligence in seeking the amendment before commencement of the trial and therefore amendment cannot be permitted. With regard to another application under Order I Rule 10 (2) CPC, the trial court has given reasons that the proposed respondents are neither necessary nor proper parties. The proposed respondents are purchasers of the property from the first defendant and his children and since in those sale deeds it is mentioned that the properties belonged to the ancestors of one Siddalingaiah, the proposed respondents cannot be impleaded.
4. It is the clear case of plaintiff that the properties in respect of which the suit has been filed were ancestral and joint family properties and other two items which are sought to be included also belong to the joint family. It is stated that these two items of the property could not be included in the suit because documents pertaining to them were not available at that time. If the plaintiff wants to seek partition in the other two items of the property stating that they too constitute joint family, it is for him to prove. It is settled principle that all properties must be included in the suit for partition. If the plaintiff has stated that he is entitled to partition in these two properties also, he can certainly include them. The reasons assigned by the trial court are not acceptable for denying the amendment.
5. With regard to impleading the purchasers, the reasons assigned by the trial court cannot be accepted at all. If they are the purchasers of the property from some of the defendants in the suit, they may not be necessary parties, they could be treated as proper parties. Their presence will help not only to decide the suit effectively and completely but also to avoid future litigations. The trial court has certainly committed an error in dismissing these two applications. Therefore, the following order : -
(i) Writ Petitions are allowed.
(ii) The order at Annexures-F and G are quashed. These two applications are allowed.
(iii) The plaintiff is permitted to amend the plaint and implead proposed parties as defendants 3 to 10.
Sd/- JUDGE ckl