IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.27959/2015 (GM-CPC) Between:
Smt.Gowramma D/o Late Honnasetty Aged about 57 years Residing at Bheemanabeedu Village Kasaba Hobli Gundlupet – 571 111. … Petitioner (By Smt. Sinchana M.R., Advocate for Sri Muniyappa, Advocate) And:
1. Sri Basavasetty, Since deceased - by his LRs:
1(a) Sri Basavanna @ Gundappa, S/o Late Basavashetty, Aged about 43 years.
1(b) Sri Mahadevashetty, S/o Late Basavashetty, Aged about 43 years.
2. Sri Gopasetty, Since deceased – unmarried and no any legal representative 3. Sri Bellasetty, S/o Late Arasasetty, Aged about 65 years.
4. Smt. Nagamma, D/o Bellasetty, Aged about 47 years.
5. Sri Krishna, S/o Bellasetty, Aged about 42 years.
6. Smt. Chikka Honnamma, D/o Honnasetty, Aged about 47 years.
All are residing at Bheemanabeedu Village, Kasaba Hobli, Gundlupet Taluk – 571 111. … Respondents.
(R1(a), R1(b), R4, R5 & R6 – Served and Unrepresented; R3 – Notice held sufficient.
R2 – No steps required v/o dated 07.06.2016) This Writ Petition is filed under Article 227 of the Constitution of India, praying to quash the impugned order dated 21.07.2014 passed by the Civil Judge (Jr. Dn.) and JMFC, Gundlupet in O.S. No.109/2006 vide Annexure-D rejecting the application under Section 151 of CPC and 18.02.2015 vide Annexure-F rejecting the application under order 114(b) r/w Section 151 of CPC passed by the Civil Judge (Jr. Dn.) and JMFC, Gundlupet in O.S.No.109/2006.
This Writ Petition coming on for preliminary hearing this day, the Court made the following:
ORDER The petitioner who is plaintiff in O.S.No.109/2006 has challenged the order of the trial Court dated 21.07.2014 passed on I.A.No.9 whereby the application for amendment of plaint had come to be rejected. The petitioner having realized that there was a mistake in mentioning the survey number as 39/4 with respect to the suit schedule property instead of 59/4 has filed an application for amendment.
2. It is case of the petitioner that Exhibit P4, the RTC extract which has been produced with respect to the schedule property is relating to survey No.59/4. It is also submitted that the application for amendment was not objected to by judgment debtor and the Court having recorded a finding at para-8 that the contention of the petitioner was acceptable after noticing Exhibit P4, the impugned order passed is liable to be set aside.
3. The respondents have been served but have remained absent.
4. It is to be noted that in a suit for partition the plaintiff as well as defendants are in the position of the plaintiff. In the present case, the defendants who were judgment debtors have said that they have no objection for amendment of the plaint as regards the description of the property wrongly mentioned.
5. The revenue documents produced in support of the plaint including Exhibit-P4 describes the survey number of the property as 59/4, it is clear that there is a mistake while describing the survey number of property as 39/4 and no other amendment is sought to be made out by the petitioner to the pleadings. The identity of the property is not in dispute nor is there any plea to substitute the property by another property. The property which is the subject matter of partition are identified by both the parties and both parties have accepted the identity and have agreed for rectification of description of survey number of the suit schedule property.
6. The Apex Court in the case of Peethani Suryanarayana and Another v. Repaka Venkata Ramana Kishore and Others reported in AIR 2009 SC 2141 while mentioning the question of amendment of the pleadings at the stage of final decree proceedings has upheld the power to amend while referring to the law laid down by the Apex Court in the case of North Eastern Railway Administration, Gorakhpur, v. Bhagwan Das (Dead) by LRs. reported in (2008) 8 SCC 511. In the peculiar facts of the present case, noticing that the execution proceedings relate to proceedings in a suit for partition and that admittedly identity of the property is not in dispute and the mistake being only with respect to mentioning of survey number and that there is no effort to substitute the property described with some other property, a case is made out for allowing the application.
7. Taking note of the law laid down by the Apex Court, the impugned order at Annexure-D dated 21.07.2014 is set aside and the application I.A.No.9 filed by the petitioner is allowed. Necessary amendment to be carried out in the original pleadings. Consequential amendments to be made in the judgment and decree.
8. In light of setting aside of the order at Annexure-D, the order at Annexure-F dated 18.02.2015 is consequently set aside.
Petition is disposed off accordingly.
Sd/- JUDGE VGR