IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.30035 OF 2017 (GM-CPC) BETWEEN 1. SMT. HOMBALAMMA, W/O LATE GANGADHARA, AGED ABOUT 56 YEARS, 2. ROOPA, D/O LATE GANGADHARA, AGED ABOUT 30 YEARS, BOTH ARE RESIDENT OF SIDDAIAHNAGAR, SANTHEPETE, B.M. ROAD, HASSAN TALUK – 573201, HASSAN DISTRICT. … PETITIONERS (BY SRI. CHETHAN B, ADVOCATE) AND 1. SMT. PUTTAMMA, W/O LATE RANGASWAMY, AGED ABOUT 80 YEARS, 2. SRI. KARAGARA, S/O LATE KUNTAIAH, AGED ABOUT 75 YEARS, 3. SMT. JAYAMMA, W/O KARAGARA, AGED ABOUT 69 YEARS, 4. SMT. SAROJAMMA, W/O DEVARAJU, AGED ABOUT 50 YEARS, 5. SRI. DEVARAJU, S/O KODAIAH, AGED ABOUT 52 YEARS, 6. SMT. PUTTAMMA, D/O DEVARAJU, AGED ABOUT 27 YEARS, 7. SMT. VIDYA, D/O DEVARAJU, AGED ABOUT 26 YEARS, 8. SRI. CHETHANA, S/O DEVARAJU, AGED ABOUT 22 YEARS, 9. SMT. GANGAMMA, W/O THAMMANNA, AGED ABOUT 46 YEARS, 10. SRI. DAYANANDA, S/O TAMMANNA, AGED ABOUT 22 YEARS, 11. SMT. GOWRAMMA, W/O SWAMY, AGED ABOUT 42 YEARS, 12. KUMARI. ARPITHA, D/O SWAMY, AGED ABOUT 13 YEARS, 13. MAST. CHETHAN S/O SWAMY, AGED ABOUT 12 YEARS, THE DEFENDANTS NO.12 AND 13 ARE MINORS SINCE THE MINOR GUARDIAN AND MOTHER IS SMT. GOWRAMMA THE 11TH DEFENDANT.
14. SMT. ANITHA, W/O MURALI, AGED ABOUT 36 YEARS, 15. SRI. CHANDRU, W/O LATE RANGASWAMY, AGED ABOUT 50 YEARS, 16. SMT. PADMA, W/O CHANDRU, AGED ABOUT 38 YEARS, 17. SMT. LAKSHMI, D/O CHANDRU, AGED ABOUT 20 YEARS, 18. KUM. SARASWATHI, D/O CHANDRU, AGED ABOUT 18 YEARS, 19. KUM. PRIYA, D/O CHANDRU, AGED ABOUT 16 YEARS, 20. KUM. POOJA, D/O CHANDRU, AGED ABOUT 14 YEARS, 21. KUM. BHOOMIKA, D/O CHANDRU, AGED ABOUT12 YEARS, THE DEFENDANTS NO.19, 20, 21 ARE MINORS, SINCE REPRESENTED BY THEIR GUARDIAN AND FATHER SRI CHANDRU, DEFENDANT NO.15.
22. SRI. SHIVANNA, S/O LATE RANGASWAMY, AGED ABOUT 47 YEARS, 23. SMT. LOLAKSHI, W/O SHIVANNA, AGED ABOUT 41 YEARS, 24. MAST. MANOJ, W/O SHIVANNA, AGED ABOUT 16 YEARS, 25. KUM. MONIKA, D/O SHIVANNA, AGED ABOUT 14 YEARS, SINCE THE DEFENDANT NOS. 24 AND 25 ARE MINORS REPRESENTED BY THEIR GUARDIAN AND MOTHER SMT. LOLAKSHI.
26. SRI. RAVI, S/O GANGADHARA, AGED ABOUT 37 YEARS, 27. SRI. RAMESH, S/O GANGADHARA, AGED ABOUT 35 YEARS, RESPONDENT NOS.1 TO 27 ARE RESIDENT OF 3RD CROSS ROAD, SIDDAIAH NAGAR, SANTHEPETE, B.M. ROAD, HASSAN TOWN – 573201, HASSAN DISTRICT.
28. SRI. H.M. SOMASHEKARAPPA, S/O LATE MALLAIAH, AGED ABOUT 74 YEARS, RESIDENT OF ASHOKA NAGAR LAYOUT, BELUR ROAD, HASSAN TOWN – 573201, HASSAN DISTRICT. …RESPONDENTS (BY SRI. B.M. MOHAN KUMARA FOR SRI. GANAPATHI HEGDE, ADVOCATE FOR R28; NOTICE TO R1 TO R27 IS D/W V/O DATED 9.1.2019) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 8.6.2017 PASSED ON I.A.NO.11 FILED UNDER ORDER VI RULE 17 OF THE CODE OF CIVIL PROCEDURE IN O.S.NO.590/2012 ON THE FILE OF THE HON’BLE II ADDL CIVIL JUDGE AND JMFC, HASSAN AS PER ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the plaintiffs in a suit for partition and declaration in O.S.No.590/2012 are invoking the writ jurisdiction of this court for assailing the order dated 8.6.2017, a copy whereof is at Annexure – A whereby learned II Addl. Civil Judge, Hassan, having rejected their application in I.A.No.1 filed under Order VI Rule 17 r/w section 151 of CPC, 1908, has denied leave to amend the plaint.
2. After service of notice, the 28th defendant having entered appearance through his counsel, resists the Writ Petition, notice to other respondents having already dispensed with.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this court is of the considered opinion that the impugned order is liable to be set at naught and the court below ought to have granted leave to amend the plaint for the following reasons:
(a) suit is admittedly for partition and declaration; the same is resisted by filing Written Statement wherein defendants too proceed on the premise that the sale deed is dated 6.1.2007 when it was only the date of agreement pursuant to which the sale deed dated 22.03.2007 was registered; this date is sought to be altered by the amendment, if the leave to amend the pleadings by introducing the correct date of sale deed is granted, no prejudice will be caused to the other side, since both the sides have structured their pleadings on the same premises only; and (b) although ordinarily, leave to amend the pleadings is not sanctioned once the trial begins is true, the amendment now sought is virtually innocuous for the reasons stated in the paragraph supra and the same is not going to alter the nature of the proceedings in any way; the court below ought to have favoured the subject application on cost and condition; this having not been done, there is error apparent on the face of the record warranting indulgence of writ court.
In the above circumstances, this Writ Petition succeeds; impugned order is set at naught; petitioner’s subject application having been favoured, leave is accorded for amending the plaint by introducing 22.03.2007 as the date of the sale deed instead of 6.1.2007.
The petitioner is liable to pay a cost of Rs.5,000/- to the 28th defendant Sri.H.M.Somashekarappa within a period of four weeks or the next date of hearing of the suit, whichever is later failing which the amendment now sanctioned shall not be permitted.
Sd/- JUDGE cbc