IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION Nos.46200-46201/2018(GM-CPC) BETWEEN 1. Smt. Shanthamma, W/o. Late Obalappa, Aged about 64 years, R/at Dr. B.R.Ambedkar Colony, Sarjapura Village and Hobli, Anekal Taluk, Bengaluru District-562106.
2. Smt. Munirajamma, W/o. Late Obalappa, Aged about 44 years, R/at. Chinthala Madiwala Village, Sarjapura Hobli, Anekal Taluk, Bengaluru District-562106.
3. Sri. O Murali, S/o. Late Obalappa, Aged about 40 years, R/at Dr. B.R.Ambedkar Colony, Sarjapura Village and Hobli, Anekal Taluk, Bengaluru District-562106. (By Sri. Leeladhar H.P., Advocate) …Petitioners AND 1. Smt. Venkatamma, D/o. Late Gurappa, Aged about 67 years, R/at. Chinthala Madivala Village, Sarjapura Hobili, Anekal Taluk, Bengaluru District-562106.
2. Sri. Yellappa, S/o. Late Gurappa, Aged about 74 years, 3. Smt. Lakshmamma, W/o. Late Muniswamy, Aged about 69 years, 4. Sri. Anantharaj, S/o. Late Muniswamy, Aged about 44 years, 5. Sri. Venkatesh, S/o. Late Muniswamy, Aged about 39 years, 6. Sri. Abbaiah, S/o. Late Gurappa, Aged about 61 years, 7. Sri. Shanthakumar, S/o. Yellappa, Aged about 50 years, 8. Sri. Ramaswamy, S/o. Yellappa, Aged about 39 years, Sl.No.2 to 8 are R/at Dr. B.R.Ambedkar Colony, Sarjapura Village and Hobli, Anekal Taluk, Bengaluru District-562106.
9. Sri. B.C.Prasad, S/o. Ramasheshaiah, Aged about 50 years, R/at Veerapura Village, Kasaba Hobli, Doddaballapura Taluk, Bengaluru District-561203.
GPA Holder from Sri. Hanumantharao, S/o. Sheshappa, R/at Veerapura Village, Kasaba Hobli, Doddaballapura Tauk, Bangalore District-561203.
10. M/s. City Lights Estates Pvt. Ltd. A Company Incorporated under The Company’s Act, Having its registered office At No.1/1, New Pushpa Vihar, Off Colaba Post Office, Mumbai-400005.
And its Branch Office at. No.3795, 7th Main HAL 2nd Stage, Indiranagar Bengaluru-560038.
Rep. by its authorized Signatory Sri. Arun BalaKrishnan 11. Sri. M.S.Poovanna, S/o. late M.S.Subbaiah, Aged about 74 years, R/at No.882/A, 5th Cross, 11th Main MICO Layout, BTM 2nd Stage, Bengaluru-560076.
12. M.S.Safinaz D/o. Syed Nasrulla, Aged about 46 years, R/at No.28, 1st Main 5th Cross, J.C.Nagar Post, Bengaluru-560006.
13. M/s. Sowparnika Projects and Infra Structure Pvt. Ltd.
A Company registered under the Company’s Act, having its registered Office at No.750, 1st Main Road, “C” Block, AECS Layout, Kundalahalli, Bengaluru-560037.
Represented by its authorized Director Mrs. Meenakshi Ramji, (Authorised by the Board Resolution Dated 20.01.2016) 14. ECL Finance Limited, A, Non Banking Finance Company Incorporated under the Company’s Act, 1956 and having its registered office at CST Road, Kalina Mumbai-400098.
And having one of its office at Unit No.10 and 12 Upper Ground Floor, Mercantile House, 15 Kasturaba, Gandhi Marg, New Delhi-110000.
…Respondents (By Sri. Gurudas S Kannur, Sr.Counsel, For Sri. Direndra N. Katti, Advocate for R13) These Writ Petitions are filed under Article 227 of the Constitution of India praying to call for entire records pertaining to O.S.No.795/2009 on the file of the Senior Civil Judge and JMFC at Anekal, quash the order dated 25.09.2018 passed by the Senior Civil Judge and JMFC, at Anekal in O.S.No.795/2009 on I.A.No.4 under Order 1 Rule 10(2) Read with Section 151 of the CPC to implead R13 and R14 under Annexure-A and etc.
These Writ Petitions coming on for preliminary hearing this day, the court made the following:
ORDER Heard the counsel for petitioners and the counsel for respondent no.13 at the stage of preliminary hearing.
2. The petitioners have challenged the order dated 25.9.2018 passed by the trial court on I.A.nos. 4 and 5 filed under Order I Rule 10(2) and Order VI Rule 17 of the Code of Civil Procedure (‘CPC’ for short) as per Annexure- ‘A’. In O.S.795/2009, a suit for partition filed in the court of Senior Civil Judge, Anekal, the petitioners are the plaintiffs. Partition is sought in 8 items of the property. Out of 8 items, the property described at item no.4 is sy.no.25 of Chikkadunnasandra Village, Sarjapura Hobli, Anekal Taluk. The plaintiffs came to know that this item no.4 had been sold long back by defendant no.2 and from that sale proceeds he had purchased the other properties in sy.nos. 431, 455 and 596. The plaintiffs wanted to amend the plaint to include these three properties. It appears that land in sy.no.431 was subsequently sold during the pendency of the suit. Therefore, the plaintiffs wanted to implead the purchasers of the land in sy.no.431 and an application to that effect was also filed. The trial court rejected these two applications. The legality of the same has been questioned.
3. Petitioners counsel submits that the petitioners did not have knowledge of the sale of item no.4 of the plaint schedule property. Therefore, they could not include this property when the suit was filed. He also argued that the trial court should have permitted the plaint to be amended because the burden is on the plaintiffs to prove that all these properties belong to the joint family. The purchasers of the property should have been permitted to be impleaded in the background of the amendment sought.
4. On the other hand, learned counsel for respondent no.13 submits that there was a compromise in an earlier suit. This property had been omitted. Therefore, inclusion of this property is not permitted in view of Order II Rule 2 of CPC. Proposed amendment has been sought after lapse of 8 years. In fact sy.no.25 had been sold on 14.9.1995 itself. Trial court has taken into consideration all these aspects of the matter. Rightly the applications have been dismissed.
5. With regard to the submission made by the counsel for respondent no.13 as regards applicability of Order II Rule 2 CPC, it has to be stated that at the time of considering the application for amendment the court need not take that aspect into consideration. The defendants may take up such a contention in the written statement and the trial court after thorough examination of the facts and keeping in mind the scope of Order II Rule 2 CPC has to give finding whether the suit is hit by Order II Rule 2 CPC. This exercise cannot be done at the time of deciding application for amendment. All that the trial court is expected to do is to examine whether amendment can be permitted. If according to the plaintiffs one of the items of the suit property had been sold and other properties acquired through sale proceeds and if for this reason the plaintiffs want to include other items of the properties, the burden is on the plaintiffs to establish that those properties are also amenable for partition. Granting amendment does not mean that the right of the defendants is taken away. Defendants are always at liberty to take such contentions as are available under law to oppose the suit being decreed. The trial court has given a reason that land in sy. No. 25 was sold in the year 1995 and another application for impleadment has been dismissed and therefore amendment cannot be permitted. I do not think that this reason is sustainable. Trial court should have permitted the amendment to be carried out to the plaint and to implead the purchasers of the property. It should be mentioned here that the purchasers presence in the suit helps decide the suit effectively by avoiding future litigations. They are only proper parties. Therefore, I come to the conclusion that these petitions deserve to be allowed. Accordingly, I pass the following order:-
(a) Writ Petitions are allowed.
(b) The impugned orders at Annexure-A is set aside. Amendment application is allowed. Impleading application is also allowed. Plaintiffs are permitted to amend the plaint and also to implead the purchasers as defendants no.13 and 14.
(c) The defendants are at liberty to file additional written statement. The proposed defendants can also file their written statement.
Sd/- JUDGE ckl