IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.41628 OF 2019 & WRIT PETITION NO.46535 OF 2019 (GM-CPC) BETWEEN:
1. SRI. K.S.ASHWATH, S/O K.SATHYANARAYANA SETTY, AGED 58 YEARS, R/AT: NO.4, K.R.EXTENSION, MADHURIGI – 572 132, TUMKUR DISTRICT.
2. SRI. VENKATESHA BABU, S/O K.SATHYANARAYANA SETTY, AGED 55 YEARS, R/AT: NO.4, K.R.EXTENSION, MADHURIGI – 572 132, TUMKUR DISTRICT. …PETITIONERS (BY SRI. PRAKASH M.H, ADVOCATE) AND:
1. SRI. ADINARAYANA GUPTA, S/O LATE K.SHIVARAMA SETTY, AGED ABOUT 55 YEARS, R/AT: K.R.EXTENSION, MADHUGIRI - 573 132, TUMKUR DISTRICT.
2. SMT. M.PADMAVATHAMMA, D/O LATE K.SHIVARAMAIAH SETTY, W/O M.SADASHIVANANDA GUPTA, AGED ABOUT 60 YEARS, R/AT: C/O R.MANOHAR, NO.590 (F20/1), 3RD RAMACHANDRA, AGRAHARA, KOTE MOHALLA, MYSORE - 570 001.
3. SRI. VENKATACHALAPATHY, S/O LATE K.SHIVARAMAIAH SETTY, AGED ABOUT 52 YEARS, R/AT: K.R.EXTENSION, MADHUGIRI - 572 132, TUMKUR DISTRICT.
4. SRI. K.ASHWATH NARAYANA SETTEE, S/O LATE K.SHIVARAMAIAH SETTY, AGED ABOUT 50 YEARS, R/AT: K.R.EXTENSION, MADHUGIRI - 572 132, TUMKUR DISTRICT.
5. SRI. K.S.ADISHESHA GUPTA, S/O LATE K.SATHYANARAYANA SETTY, AGED ABOUT 48 YEARS, R/AT: K.R.EXTENSION, MADHUGIRI - 572 132, TUMKUR DISTRICT.
6. SRI. K.N.MURALI KRISHNA BABU, S/O LATE M.K.NARAYANA SETTY, AGED ABOUT 55 YEARS, R/AT: K.R.EXTENSION, MADHUGIRI - 572 132, TUMKUR DISTRICT.
7. SRI. K.N.SATHYANARAYANA BABU, S/O LATE M.K.NARAYANA SETTY, AGED ABOUT 57 YEARS, R/AT: ANANDA LAKSHMI AGENCIES, NEAR SRIDEVI NURSING HOME, TUMKUR - 572 101.
8. SRI. ANAND RAMU, S/O LATE M.K.NARAYANA SETTY, AGED ABOUT 45 YEARS, R/AT: TPNL LTD., NEAR DC QUARTERS, SIRA ROAD, TUMKUR – 572 101.
9. SRI. K.N.ANATHA PADMA NABHA, S/O LATE M.K.NARAYANA SETTY, AGED ABOUT 43 YEARS, R/AT: K.R.EXTENSION, MADHUGIRI – 572 132, TUMKUR DISTRICT.
10. SMT. MADHAVI BABU, W/O VENKATESH BABU, AGED ABOUT 45 YEARS, R/AT: K.R.EXTENSION, MADHUGIRI – 572 132, TUMKUR DISTRICT.
11. SMT. SAVITHA MANI, W/O K.S. ASHWATH, AGED ABOUT 50 YEARS, R/AT: K.R.EXTENSION, MADHUGIRI – 572 132, TUMKUR DISTRICT.
12. SMT. VIJAY LAKSHMI, W/O G. SATHYANARAYANA, AGED ABOUT 48 YEARS, DOOR NO.9-1-16, BT COMPOUND, HINDPUR – 515 001, ANANTHAPUR DISTRICT, ANDRA PRADESH.
13. SMT. JYOTHI, W/O R. RAMACHANDRA SETTY, AGED ABOUT 55 YEARS, R/A: JEEVAN MEDICALS, SKP ROAD, DAVANAGERE – 577 001, TOWN AND DISTRICT.
14. SMT. RAJESHWARI, W/O NUTHAN BABU, AGED ABOUT 48 YEARS, R/AT: DOOR NO.9/60, K.R.EXTENSION, MADHUGIRI – 572 132, TUMKUR DISTRICT.
15. SRI.A. KIRAN KUMAR, S/O A. PANIRAJ, AGED ABOUT 45 YEARS, NO.14-233, KAMALA NAGAR, ANANTHAPURA – 515 001, ANDRAPRADESH.
16. SRI.M.N. SAI RAM, S/O G. NEELAKANTAIAH SETTY, AGED ABOUT 45 YEARS, R/AT: AMBIKA HALL, VASAVI TEMPLE STREET, MAGADI, RAMANAGARA DISTRICT – 562 120. … RESPONDENTS (BY SRI.G.S.VENKAT SUBBARAO, ADVOCATE FOR C/R-1; NOTICE TO R2 TO R16 IS D/W V/O DTD: 14.10.2019) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 09.08.2019 ON I.A.NO.XXXII AND THE ORDER DATED 23.08.2019 ON I.A.NO.XXXI PASSED IN O.S.NO.84/2006 BY THE COURT OF ADDL. SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI, VIDE ANNEXURE-M AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONERS AND TO REJECT THE APPLICATION FILED BY THE R-1 AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the defendant Nos. 5 & 7 in a partition suit in O.S.No.84/2006 are invoking the writ jurisdiction of this Court for assailing the order dated 09.08.2019 on I.A.No.XXXIX and another order dated 23.08.2019 on I.A.No.XXXI, copies whereof are collectively at Annexure – M , whereby the request for leave to amend their Written Statement has been rejected.
2. The first respondent having entered Caveat through his counsel, resist the Writ petitions. Notice to other respondents is dispensed with in terms of the memo since they too are defendants.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court finds fault with the impugned order because:
a) the Court below proceeds on an inarticulate premise that the contentions founded on a testament cannot be introduced to the pleadings of the parties by way of amendment at all, although in so many words, the same has not been stated in the impugned orders;
b) ordinarily, in a partition suit, Courts need to be little lenient in considering the request for leave to amend the pleadings whether it comes from the plaintiff side or from the defendant side since their status in the array of the parties as such is not of much significance; in the present case, the testator who was the party to the suit died in the recent past and the application is moved without brooking much delay; and, c) the contention of the contesting respondent that adjudication of validity issue of Will cannot be undertaken by the Court trying a partition suit that too at the instance of the defendants who claim to have succeeded to the estate of the deceased party to the suit is not supported by para 21 of the decision in BHIMAPPA RAMACHANDRAPPA AMATE VS. SHRIKANT MARUTHI MIRAJAKAR, (2004) ILR (KAR) 5047; no such ratio emanates from the said paragraph which deals with a fact situation emerging from Order XXII Rule 5 of CPC, 1908 which is not the case here.
In the above circumstances, these writ petitions succeed; the impugned order is set at naught; the subject applications having been allowed, the Court below shall process the matter further accordingly.
All contentions of the parties are kept open. No costs.
Sd/- JUDGE cbc/Bsv