IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.5823 OF 2017 (GM-CPC) BETWEEN:
1. SMT.DYAMAVVA W/O HANUMANTHAPPA.K (D/O LATE N.GIRIYAPPA) AGED ABOUT 59 YEARS R/AT BHANUVALLI VILLAGE HARIHARA TALUK DAVANAGERE DISTRICT – 577 517 2. SMT.MANJULAMMA W/O MAHADEVAPPA (D/O LATE N.GIRIYAPPA) AGED ABOUT 47 YEARS R/AT HALIVANA VILLAGE HARIHARA TALUK DAVANAGERE DISTRICT – 577 514 (BY SRI.RUDRAPPA P., ADVOCATE) AND:
HANUMANTHAPPA SINCE DEAD BY LRS 1. SMT.KAMALAMMA W/O LATE HANUMANTHAPPA AGED ABOUT 44 YEARS 2. GIRISH S/O LATE HANUMANTHAPPA AGED ABOUT 28 YEARS 3. MALATHESH S/O LATE HANUMANTHAPPA AGED ABOUT 26 YEARS 4. SHRUTHI D/O LATE HANUMANTHAPPA AGED ABOUT 23 YEARS ... PETITIONERS RESPONDENT NOS.1 TO 4 ARE AGRICULTURISTS R/O KAILASANAGARA NEAR HANAGAVADI ROAD BEHIND APMC, HARIHAR DAVANAGERE DISTRICT – 577 601 5. MALLAPPA S/O LATE GIRIYAPPA AGED ABOUT 54 YEARS AGRICULTURIST R/O KAILASANAGARA NEAR HANAGAVADI ROAD BEHIND APMC, HARIHAR DAVANAGERE DISTRICT – 577 601.
6. SMT. RATHNAMMA W/O MANJAPPA (D/O LATE N.GIRIYAPPA) AGED ABOUT 48 YEARS AGRICULTURIST R/O. HALLADAKERI 1ST MAIN, 1ST CROSS HARIHAR DAVANAGERE DISTRICT – 577 601 7. SMT.RENUKAMMA W/O NAGAPPA (D/O LATE N.GIRIYAPPA) AGED ABOUT 42 YEARS AGRICULTURIST R/O BELIMALLUR VILLAGE HONNALI TALUK DAVANAGERE DISTRICT-577 503 (RESPONDENTS NO.1 TO 7 ARE SERVED) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 16.11.2016 AT ANNEXURE-E PASSED BY THE SENIOR CIVIL JUDGE AT HARIHAR IN O.S.15/2013 DISMISSING THE APPLICATION MADE BY THE PETITIONER UNDER ORDER VI RULE 17 OF CPC AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the plaintiffs in a partition suit in OS.No.15/2013 are invoking the writ jurisdiction of this Court for assailing the order dated 16.11.2016, a copy whereof is at Annexure – E, whereby the learned Senior Civil Judge, Harihar having dismissed their application filed under Order VI Rule 17 of CPC, 1908, has denied leave to amend the plaint as sought for. Though the respondents are served with the Court notice, they have chosen to remain unrepresented.
2. Having heard the learned counsel for the petitioners and having perused the petition papers, relief needs to be granted to the petitioners, because:
a) in a partition suit ordinarily the rigor of proviso to Order VI Rule 17 of CPC, 1908 is relaxable which aspect has not been adverted to by the learned trial Judge while considering the subject application seeking leave to amend the plaint; this constitute an error apparent on the face of the record;
b) although the trial begin, the same has not much advanced inasmuch as when the application was filed the case was posted for Cross-examination of PW-1; it is a cordial principle of law of partition that all properties need to be included subject to just exceptions; the prayer for amending the plaint includes the one for introducing some pleadings and some prayer in respect of earlier partition; and, c) the grant of leave to amend the plaint would not cause any prejudice to other side, since they have an opportunity of filing their additional Written Statement; denial of leave to amend the plaint would materially prejudice the interest of plaintiff; in any event, the Court below could have granted leave to make amendment subject to cost and condition.
In the above circumstances, this writ petition succeeds; impugned order having been set aside, leave is accorded to amend the plaint as sought for in the subject application; the petitioners shall file the amended plaint within a period of four weeks whereupon, it is open to the respondents to file additional written statement, if any, within a period of another four weeks thereafter;
The petitioners shall pay a cost of Rs.100/- to each of the defendants within a period of four weeks, failing which, the order now quashed shall stand resurrected.
All other contentions of the parties are kept open.
Sd/- JUDGE KTY