IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.29860/2014 (GM-CPC) BETWEEN:
K.J.SHIVA SWAMY S/O. LATE JADEMADAPPA, AGED ABOUT 65 YEARS, AGRICULTURIST, R/O. KEMPANAPALYA, KASABA HOBLI, KOLLEGAL TALUK, CHAMARAJANAGAR DIST. – 571440 (BY SRI.D.S.HOSMATH, ADVOCATE) AND:
1. K.J.BASAVARAJU S/O. K.B.JADEMADAPPA, AGEDA BOUT 63 YEARS, RETIRED VILLAGE, ACCOUNTANT, R/O. KEMPANAPALYA, KASABA HOBLI, KOLLEGAL TALUK, CHAMRAJANAGAR DIST. 571440 ...PETITIONER 2. MANAGER BANNARIAMMAN SUGAR FACTORY KUNTHUR VILLAGE, KOLLEGAL TALUK, CHAMARAJANAAR DIST. 571440 ...RESPONDENTS (BY SRI. T.A.KARUMBAIAH, ADVOCATE; R-2 SERVED & UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH ORDER ON I.A.5 DATED 19.04.2014 PASSED BY THE LEARNED ADDL. CIVIL JUDGE (JR. DN.) AND JMFC, KOLLEGAL IN O.S.NO.103/2011 VIDE ANN-E.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Defendant in O.S.No.123/2011 is assailing the order dated 19.04.2014–Annexure-A whereunder I.A.No.5 filed by the respondent/plaintiff under Order 6 Rule 17 CPC seeking amendment of plaint to incorporate a plea to the effect that “plaintiff is entitled for portion of sale proceeds”, came to be allowed.
2. Having heard the learned Advocates appearing for parties and on perusal of the pleadings it would disclose that there is no dispute to the fact that plaintiff and first defendant are uterine brothers and plaintiff is claiming relief of permanent injunction to restrain second defendant from releasing the amount realized by way sale of sugarcane to first defendant. It is not in dispute that respondent/plaintiff has now filed a comprehensive suit for partition and separate possession of the alleged joint family properties in O.S.No.170/2017 and has also sought for mesne profits.
3. The claim now made under the proposed amendment would also cover claim made in the suit O.S.No.170/2017. In that view of the matter, prayer sought for in the application for amendment, which has been since allowed by the trial Court by the impugned order, cannot be sustained.
Hence, I proceed to pass the following:
ORDER (i) Writ petition is hereby allowed.
(ii) Order dated 19.04.2014 passed in O.S.No.103/2011 by the Addl. Civil Judge (Jr. Dn.) and JMFC, Kollegal (Annexure-E), is set aside.
(iii) Liberty granted to both parties to urge their respective contentions both in the present suit, if so advised and also in O.S.No.170/2017 and no opinion is expressed on the merits of the claim.
SD/- JUDGE DR