IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF APRIL, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.9465/2019(GM-CPC) 1. L. VENKATASHIVA REDDY S/O NARASA REDDY AGED ABOUT 72 YEARS, 2. VENKATAREDDY S/O L. VENKATASHIVA REDDY (S/O NARASA REDDY) AGED ABOUT 52 YEARS, 3. L. MANJUNATHA REDDY S/O L. VENKATSHIVA REDDY) (S/O NARASA REDDY) AGED ABOUT 38 YEARS, PETITIONERS 1 TO 3 ARE RESIDENT OF VEERAPURA VILLAGE AND POST CHILAMATHUR MANDALAM HINDUPUR TALUK, ANATHAPURAM DISTRICT-515001 4. ARUNAMMA @ ADILAKSHMAMMA D/O L. VENKATASHIVA REDDY AGED ABOUT 44 YEARS RESIDENT OF SAMPALLI VILLAGE CHILAMATHUR MANDALAM HINDUPUR TALUK, ANATHAPURAM DISTRICT-515001.
(BY SRI BALARAJ A. C., ADVOCATE) ... PETITIONERS AND:
1. P. G. SRINIVASA REDDY S/O LATE K. SRINIVASA REDDY AGED ABOUT 52 YEARS, 2. P. G. BHASKAR REDDY S/O LATE K. GANGI REDDY AGED ABOUT 50 YEARS, 3. SMT. JAYAMMA W/O LATE K. GANGI REDDY (S/O LATE K. GANGI REDDY ) AGED ABOUT 62 YEARS, 4. P. SUBBAREDDY S/O LATE PAPI REDDY AGED ABOUT 69 YEARS, 5. SMT. LEELAVATHI D/O P. SUBBAREDDY AGED ABOUT 49 YEARS, 6. SMT. USHA D/O P. SUBBAREDDY AGED ABOUT 42 YEARS, 7. LOKESH S/O SUBBAREDDY AGED ABOUT 29 YEARS, DEFENDANTS 1 TO 7 ARE RESIDENTS OF PATHA BAGEPALLI VILLAGE BAGEPALLI TALUK-561701.
8. SMT. LAKSHMI D/O LATE GANGI REDDY AGED ABOUT 47 YEARS, RESIDENT OF CHINNAPPAREDDY VILLAGE KODURU POST, CHILAMATHUR MANDALAM HINDUPUR TALUK, ANATHAPURAM DISTRICT-515001.
... RESPONDENTS (BY SRI PRASHANTH P. N., ADVOCATE FOR C/R1 & R2; VIDE ORDER DATED 5.4.2019 NOTICE TO R3 TO R8 IS DISPENSED WITH) … THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHICKKABALLAPUR IN IA NO.33 IN O.S.NO.156/2012 DATED 29.1.2019 VIDE ANNEXURE- C.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiffs have filed the present writ petition against the order dated 29.1.2019 made on I.A.33 in O.S.No.156/2012 dismissing the application filed under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure by the legal heirs of the original plaintiff.
2. The plaintiffs filed a suit for partition and separate possession claiming 1/4th share in the suit schedule properties contending that the suit schedule properties are the joint family properties of plaintiffs and defendants and hence they are entitled for share. The defendants filed their written statement and contended that there was earlier partition and the very suit filed by the plaintiffs is not maintainable and sought for dismissal of the suit.
3. When the matter was posted for arguments, at that stage, the plaintiffs filed the present application on 10.1.2019 to add para-6a after para-6 of the plaint and to add the following words to the existing prayer (a)(i) i.e., “by holding that the alleged gift deed dated 15.10.2004 and alleged partition deed dated 16.10.2004 are null and void and not binding on plaintiff’s share since plaintiff is not a party to the same” and also to add house property as an Item No.21 in the plaint schedule i.e., “House Property bearing H.L. Nos.86 to 89 lying side by side situated at Patha Bagepalli village Bagepalli Taluk, measuring East to West 55 feet and North to South 60 feet bounded on East by: K.
Narayanareddy, West by: Ramaiah, Narayana swamy, Seen’s House Property, North By: Lane/Passage and then D. Narayana Reddy’s house, South by: Lane / Passage and K.N. Reddy’s Property. It was contended in the application that the plaintiffs came to know recently that the house property belonged to late Gangi Reddy’s family has been left out and the said fact has been elicited in the cross-examination of D.W.2 and therefore, the amendment is required as sought for. The said application was opposed by the defendants contending that the application is filed at a highly belated stage and the plaintiffs have created a concocted story and are coming with new pleadings which changes the nature of the case and therefore, sought to dismiss the application.
4. The trial Court, considering the application and objections, dismissed the application mainly on the ground that the application was filed at the stage when the matter was posted for arguments on merits and the legal representatives of the original plaintiff have not filed any documents in order to show that the property bearing house list Nos. 86 to 89 pertains to the joint family property that too when the evidence of both sides have already been completed. Now after lapse of more than 6 years, the legal representatives of original plaintiff have filed the application for amendment of the plaint in the year 2019 and it is nothing but introducing the new case since the suit is of the year 2012. Hence, the present writ petition is filed by the plaintiffs.
5. Sri Balaraj A.C., learned Counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the application for amendment for inclusion of house property in the schedule to the plaint is erroneous and contrary to the material on record. He would further contend that the very inclusion of the suit property in the schedule to the plaint will not prejudice the case of the defendants and hence, the trial Court committed an error in rejecting the application for amendment of the plaint mainly on the ground of delay and laches since no document was produced to establish that the proposed property belonged to the joint family property. Therefore he sought to allow the writ petition.
6. Per contra Sri Prashanth P.N., learned Counsel for the Caveators/respondent Nos.1 and 2 sought to justify the impugned order and contended that the prayer sought in the application for amendment at para-6 is already in the plaint and there is no need for amendment. Ultimately it is for the plaintiffs to establish that it is subsequent and they are entitled for the same. He fairly submitted that in so far as prayer (a)(i) and inclusion of the property as sought for is concerned, it has to be proved by the plaintiffs before the trial Court. The said submission is placed on record.
7. When the matter had come up before this Court on 2.4.2019, this Court directed the petitioners to produce any material documents to prove that the house property bearing list Nos.86 to 89 pertains to the joint family as the trial Court recorded a finding that the legal representatives have not produced any document to show that they are joint family properties. Accordingly, Sri Balaraj A.C., learned Counsel for the petitioners filed a memo dated 4.4.2019 to show that the proposed inclusion of properties is also the joint family properties which had fallen to the Sri K. Gangi Reddy. The said memo with documents are placed on record.
8. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiffs filed suit for partition and separate possession in respect of the suit schedule properties contending that the suit schedule properties are the joint family properties of plaintiffs and defendants and there was no partition between them. The defendants filed the written statement denying the plaint averments and contended that there was earlier partition and hence the suit is not maintainable. After completion of the evidence and when the matter was posted for arguments, plaintiffs have filed the present application – I.A.33 to incorporate certain facts i.e., para-6a after para-6; and prayer (a)(i) as well as include Item No.21 in the plaint schedule i.e., house property bearing List Nos.86 to 89 morefully described in the application. But the trial Court proceeded to dismiss the application mainly on two grounds; firstly that the application is filed when the matter was posted for arguments on merits; and secondly, that the legal representatives of the original plaintiff have not produced any document to show that the said properties are pertaining to the joint family properties.
9. Admittedly the suit filed is for declaration and separate possession in respect of the suit schedule properties. Mere including of some of the properties as they are the joint family properties as alleged by the plaintiffs will not prejudice the case of the defendants even though the application is filed at a belated stage. It is well settled that the amendment can be allowed at any stage of proceedings unless and until the amendment sought alters or changes the nature of the suit and prejudice the case of the defendants. Mere inclusion of the property in the schedule to the plaint and addition of prayer to the existing one, will not take away the rights accrued on the defendants. It is ultimately for the plaintiffs to establish the same based on the oral and documentary evidence to be adduced and produced by them on merits. The trial Court has proceeded to dismiss the application on technicality. When the rights of the parties are involved in respect of the immoveable properties, the trial Court ought to have allowed the application by imposing reasonable cost for having filed the application at a belated stage. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done on technicality. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
10. In view of the aforesaid reasons and the documents are produced along with the memo, the impugned order passed by the trial Court in so far as rejection of the prayer (a)(i) and inclusion of Item No.21 in the plaint schedule and House property bearing List Nos.86 to 89 cannot be sustained. In so far as addition of facts as para-6a after para-6 is sustainable.
11. For the reasons stated above, writ petition is allowed in part. The impugned order passed by the trial only in so far as rejection of prayer or addition of prayer (a)(i) and inclusion of house property - item No.21 are hereby quashed and in so far as adding of para-6a after para-6 of the plaint is confirmed. I.A.33 filed by the plaintiffs for addition of prayer (a)(i) and inclusion of item No.21 in the plaint schedule as sought for is allowed subject to payment of costs of Rs.3,000/- to be paid on the next date of hearing to the defendants before the trial Court. In view of allowing the application for amendment for addition of prayer (a)(i) and inclusion of house property - item No.21, the defendants are also permitted to file their additional written statement, if any and if need arises.
12. Since the suit is of the year 2012 and we are in the year 2019, the trial Court is directed to decide the suit expeditiously subject to co-operation by both parties.
13. All the contentions urged by the respondents- defendants before this Court are left open to be urged at the time of hearing of the main suit and the trial Court shall decide the suit strictly in accordance with law.
Sd/- Judge Nsu/-