IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO.39532 OF 2016 (GM-CPC) BETWEEN:
SMT.NANJAMMA W/O KARITHIMMEGOWDA D/O LATE KAPANEGOWDA AGED ABOUT 73 YEARS DALLALU KOPPALU VILLAGE BILIKERE HOBLI HUNSUR TALUK – 571 105 ... PETITIONER (BY SRI.B.S.NAGARAJ, ADVOCATE) AND:
1. SRI.K.RAMEGOWDA S/O LATE KAPANEGOWDA AGED ABOUT 59 YEARS NO.6B, 7TH CROSS, 1ST MAIN SARASWATHIPURAM MYSORE – 570 009 2. SMT.DEVEERAMMA @ NANJAMMA W/O MADEGOWDA D/O LATE KAPANEGOWDA AGED AOBUT 77 YEARS MANUGANAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK – 571 105 3. SMT.SHIVAMMA W/O CHELUVEGOWDA D/O LATE KAPANEGOWDA AGED ABOUT 67 YEARS HALEBEEDU VILLAGE BILIKERE HOBLI HUNSUR TALUK – 571 105 4. SRI.NANJEGOWDA S/O LATE KAPANEGOWDA AGED ABOUT 70 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK – 571 105 5. SRI. PUTTEGOWDA S/O LATE KAPANEGOWDA AGED ABOUT 57 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 6. SMT. NINGAMMA W/O LATE NANJUNDEGOWDA AGED ABOUT 65 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 7. SMT. SHIVAMMA W/O PUTTAMADEGOWDA D/O LATE NANJUNDEGOWDA AGED ABOUT 47 YEARS MANUGANAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 8. SMT. MANGALAMMA W/O SIDDEGOWDA D/O LATE NANJUDEGOWDA AGED ABOUT 36 YEARS DALLALU KOPPALU VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 9. SRI. NAGARAJU D/O LATE NANJUNDEGOWDA AGED ABOIUT 43 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 10.SMT. NANJAMMA W/O LATE LAKSHMANA D/O LATE NANJUNDEGOWDA AGED ABOUT 37 YEARS DODEGOWDANA KOPPALU VILLAGE KASABA HOBLI HUNSUR TALUK - 571 105 11.SMT. DEVEERAMMA W/O JALENDRA D/O LATE NANJUNDEGOWDA AGED ABOUT 33 YEARS GANDHINAGARA (YEMME GUNDI VILLAGE) PERIYAPATNA TALUK - 571 12.SRI. CHANDRA S/O LATE NANJUNDEGOWDA AGED ABOUT 31 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 13.SMT. VARALAKSHMAMMA W/O LATE VISHAKANTEGOWDA AGED ABOUT 52 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 14.SRI. LOKESHA S/O LATE VISHAKANTEGOWDA AGED ABOUT 31 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 15.SRI. RAMESH S/O LATE VISHAKANTEGOWDA AGED ABOUT 29 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TLAUK - 571 105 16.SRI. H.S. DATTA S/O SUBBARAO AGED ABOUT 67 YEARS NO.36, 5TH MAIN ROAD JAYALAKSHMIPURAM MYSORE - 570 012 17.SRI. KAATANAIKA S/O HAALANAIKA AGED ABOUT 81 YEARS GAVADAGERE VILLAGE & HOBLI HUNSUR TALUK - 571 105 18.SRI. R. SOMEGOWDA S/O RAJEGOWDA AGED ABOUT 54 YEARS VADDARAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 19.SMT. CHENNAMMA W/O NANJEGOWDA AGED ABOUT 60 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 20.SRI. SHIVANANJEGOWDA S/O NANJEGOWDA AGED ABOUT 40 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 21.SRI. SWAMYGOWDA S/O NANJEGOWDA AGED ABOUT 37 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI, HUNSUR TALUK - 571 105 22.SMT. SUNDARAMMA D/O NANJEGOWDA AGED ABOUT 35 YEARS HULLENAHALLI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 105 ... RESPONDENTS (SRI.PRITHVIRAJ B.N., ADVOCATE FOR RESPONDNET NOS.1 TO 3, 6 TO 10, 13 AND 14 SRI.M.R.VIJAYA KUMAR, ADVOCATE FOR RESPONDENT NO.17 SRI.S.M.BABU, ADVOCATE FOR REESPONDENT NOS.18 TO 22 RESPONDNET NOS.4, 5, 11, 12, 15 AND 16 – SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 1.7.2016 AT ANNEXURE-A PASSED ON I.A.NO.32, IN O.S.NO.7/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, AT HUNSUR, ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present writ petition is filed by the plaintiff against the order dated 1.7.2016 passed on I.A.No.32 made in O.S.No.7/2007, rejecting the application filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure.
2. The plaintiff filed the suit for partition and separate possession contending that the plaintiff and the defendant Nos.1 to 17 are the members of the joint family and the suit schedule properties are the joint family properties and there was no partition in the family.
3. The defendant Nos.1 to 17 filed their written statements supporting the case of the plaintiff. The defendant Nos.18 to 22 filed their written statements, denied the entire plaint averments and contended that they are the bona fide purchasers in possession and the suit filed by the plaintiff is not maintainable and sought for dismissal of the suit.
4. After completion of the evidence on both sides, when the matter was posted for arguments, at that stage, the plaintiff filed I.A.No.32 under Order 6 Rule 17 of the Code of Civil Procedure to amend the plaint and by inserting the pleadings that “after the death of Kapanegowda - the father of the plaintiff, the plaintiff’s mother continued as a member of the joint family and she died on 27.2.2005. The plaintiff and defendants are her legal representatives.” Therefore, the same has to be incorporated in the pleadings. The application was opposed. Considering the application and the objections, by the impugned order dated 1.7.2016, I.A.No.32 was rejected with cost of `500/-. Hence, the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri.B.S.Nagaraj, the learned counsel for the petitioner vehemently contended that the impugned order passed by the Trial Court rejecting the application filed for amendment, only to narrate the facts, is erroneous and contrary to the material on record. He further contended that after the death of Kapanegowda, the mother of the plaintiff continued as a member of the joint family. After the death of the plaintiff’s mother, the plaintiff continued as a member of the joint family. This is only a narration of facts. The Trial Court ought to have allowed the application for amendment. Therefore, he sought to quash the impugned order by allowing the writ petition.
7. Per contra, Shri.Prithviraj B.N., the learned counsel for the respondents though sought to justify the impugned order, fairly filed a memo dated 1.12.2017 duly signed by the respondent No.18 and the learned counsel for the respondent Nos.18 to 22, stating that the application for amendment filed by the plaintiff be allowed enabling the respondents to proceed with the case before the Trial Court. The said memo is placed on record.
8. The other respondents are served and unrepresented.
In view of the memo filed by the learned counsel for the respondent Nos.18 to 22, without adverting to the merits and demerits of the case, it is suffice to allow I.A.No.32 filed by the plaintiff, for amendment.
9. For the reasons stated supra, the writ petition is allowed. The impugned order dated July 1, 2016 passed on I.A.No.32 made in O.S.No.7/2017 is quashed. I.A.No.32 filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure is allowed, with cost of `2,000/- (Rupees two thousand only) payable by the plaintiff to the defendants before the Trial Court on the next date of hearing.
10. In view of the aforesaid submissions made by the contesting respondents and taking into consideration that the suit was filed in the year 2007 and now we are in 2017, the Trial Court is directed to expedite the suit itself, subject to cooperation from both the parties.
SD/- JUDGE AHB