IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.56789 OF 2018 (GM-CPC) Between:
Sri M. Muniyappa, Aged 78 years, S/o. late D. Munishamappa, R/at Masturibha Road, Agrahara, Chinthamani – 563 125, Chikkaballapur.
… Petitioner (By Sri Jwala Kumar, Adv. for Sri Basavarajappa D.R., Adv.) And:
1. Sri M. Krishnappa, Aged 64 years, S/o. late D. Munishamappa, R/at ‘Girija Prasad Nivasa’, NNT Road, Mehaboob Nagar, Chintamani – 563 125, Chikkaballapur District.
2. Sri M. Muniyappa @ Narayanaswamy, Aged 69 years, S/o. late D. Munishamappa, R/at Near Kiran School, Someshwara Temple Road, Chinthamani – 563 125, Chikkaballapur District.
3. Smt. Gowramma, Aged 87 years, D/o. late D. Munishamappa, W/o. Sri P. Kempanna, R/at T.G. Tank Road, Ward No.8, Near General Hostel, Chikkaballapur – 562 101.
4. Sri Nagaraj, Aged 46 years, S/o. G. Lakshmaiah, R/at Navodaya School, Lepakshi, Hindupur Taluk, Anantapur District – 515 201.
5. Smt. Manjula, Aged 45 years, D/o. G. Lakshmaiah, R/at Gundlapalli, Bagepalli Taluk, Chikkaballapur District – 562 101.
6. Sri M. Ramegowda, Aged 71 years, S/o. late D. Munishamappa, R/at Kasthuribha Road, Agrahara, Chintamani – 563 125, Chikkaballapur District.
7. Smt. Yelagamma, D/o. late D. Munishamappa, W/o. late Sri Devanna, Since deceased by LR’s 7(a) Smt. Munivenkatamma, Aged 75 years, W/o. late Sri Mareppa, R/at Jodi Kottapalli, Lakshmipura Mandal, Sreenivasapura Taluk, Kolar District – 563 138.
7(b) Smt. Lakshmamma, Aged 65 years, W/o. Sri Narayanappa, R/at Ramajipalli, Chelur Mandal, Bagepalli Taluk, Chikkaballapur District – 561 207.
7(c) Smt. Iramma, Aged 55 years, W/o. Sri Venkataramanappa, R/at Kamarumpalli, Koraballapalli Post, Puludurukota Mandal, Sreenivasapura Taluk, Kolar District – 563 138.
7(d) Smt. Venkalakshmamma, Aged 50 years, W/o. late Venkataramanappa, R/at Byraganapalli, Post: Burudaguni, Siddlaghatta Taluk, Chikkaballapur District – 562 105.
7(e) Smt. Parvatamma, Aged 45 years, W/o. Sri Narayanaswamy, R/at Sriramanagar, Behind: Chelur Road, Post: Chintamani, Chintamani Taluk, Chikkaballapur District – 563 125.
8. Smt. Munivenkatamma, Aged 78 years, D/o. late D. Munishamappa, W/o. late Sri A. Ramaiah, R/at near Gangamma Gudi, Old Post Office Road, Chikkaballapur Town – 562 101.
9. Smt. Girijamma, Aged 56 years, D/o. Sri Lakshmaiah, W/o. Sri M. Krishnappa, R/at Gundlapalli, Bagepalli Taluk, Chikkaballapur District – 562 101.
10. Smt. Yashoda, Aged 40 years, D/o. late Lakshmaiah G., R/at. Gudlapalli, Bagepalli Taluk, Chikkaballapur District – 562 101.
... Respondents (By Sri K.G.Shanthappa, Adv. for R1/C) *** This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 25.09.2018 passed by the Court of the Senior Civil Judge and JMFC, Chintamani on I.A.No.11 in O.S.No.80/2013 vide Annexure-G and consequently dismiss the application filed by the respondents under Order 6 Rule 17 of CPC in O.S.No.80/2013.
This Writ Petition coming on for Orders, this day, the court made the following:
ORDER Defendant No.1 filed the present writ petition against the order dated 25.09.2018 passed on I.A. No.11 allowing the application filed under Order 6 Rule 17 R/w Section 151 of Code of Civil Procedure made in O.S.No.80/2013 on the file of the Civil Judge (Sr.Dn.) and JMFC at Chinthamani.
2. The plaintiffs filed suit for partition and separate possession in respect of suit schedule properties morefully described in the schedule to the plaint and contended that the plaintiffs and the defendants are the joint family members. Item No.1 to 4 are the joint family properties. The plaintiffs are entitled for 1/8th share each along with the defendants. The defendants filed written statement denying the plaint averments and contended that the suit filed by the plaintiffs is not maintainable and the defendants are the owners of the suit properties and sought for dismissal of the suit.
3. When the matter was posted for evidence, the plaintiffs filed an amendment application under Order VI Rule 17 R/w Section 151 of Code of Civil Procedure to amend the plaint after para 44, i.e., from 44(a) to 44(h) and to the schedule item No.VIII i.e., from sub paras (a) and (b) thereunder to amend certain facts and incorporate new item stating that it was the mistake and the amendment is necessary for proper adjudication of the matter and the said amendment will not prejudice the case of the defendants. The defendants filed objection to the said amendment application. The trial Court considering the application and objection, by the impugned order dated 25.09.2018 allowed the application. Hence, the present writ petition is filed.
4. I have heard the learned counsel appearing for the parties to lis.
5. Sri Jwala Kumar, learned counsel for Sri Basavarajappa D.R., learned counsel appearing for the petitioners contended that the impugned order passed by the trial Court allowing the application is erroneous and contrary to material on record. He further contended that the amendment as sought is nothing but withdrawal of the admissions made in the plaint and it definitely prejudice the case of the defendants. He would further contend that defendant No.1 has specifically contended that he is the absolute owner and in possession of the suit schedule properties and the plaintiffs have no right, title and interest over the suit schedule properties. The plaintiff No.2 executed registered sale deed in favour of defendant No.1. The very suit itself is not maintainable. Therefore, question of amendment of plaint would not arise. He further contended that the plaintiff filed the amendment application after lapse of 5 years. Hence, the application is liable to be rejected. Therefore, he sought to allow the writ petition.
6. Per contra, Sri K.G. Shanthappa, learned counsel appearing for respondent No.1/caveator sought to justify the impugned order of the trial Court and contended that the application was filed before commencement of evidence and there is no delay on the part of the plaintiffs. Mere allowing the application will not prejudice the case of the defendants. Therefore, the impugned order passed by the trial Court is just and proper. Hence, he sought to dismiss the present writ petition.
7. Having heard learned counsel for the parties, it is the specific case of the plaintiff that the suit schedule properties are the joint family properties of the plaintiffs and defendants No.1 to 4. There was no partition. It is the specific case of defendant No.1 that the suit schedule properties belong to him, therefore the suit itself is not maintainable. Before commencement of evidence, the application is filed to incorporate certain paragraphs which are in clarification in nature and to add new item. Mere allowing the application will no way prejudice the case of the defendants. The trial Court considering the application and objections recorded a finding that though the suit is filed in the year 2013, the issues are framed only on 14.02.2018.
Immediately after lapse of two hearing dates, the present application came to be filed by the plaintiffs. Hence, it appears prima-facie, there is no delay in filing the application even though trial has already began before the Court. The amendment which is intended to be caused is pertaining to description of item No.VIII of the suit schedule property along with explanation pertaining to item No.VIII of the suit schedule property. Therefore, I am of the opinion that such amendment will throw light upon the dispute which in turn helps the Court to adjudicate the dispute in its entirety. The objection raised by the defendants that the application filed by the plaintiffs is only to harass the defendants is not a ground to reject the application filed by the plaintiffs. The application filed is bonafide and no prejudice will cause to the defendants if it is allowed. Therefore, the trial Court allowed the application.
8. The material placed on record clearly depicts that what is sought for by way of amending the plaint before commencement of evidence is only to add certain paragraphs to show how the plaintiffs are entitled for the partition and inclusion of Item No.8 in the schedule. The application filed for amendment is proper and imperative. The application filed for amendment is necessary for proper and effective adjudication of the matter. The application is filed before commencement of evidence. Mere amending the facts and including one more item in the schedule will not affect the case of the defendants. Refusing the amendment will lead to injustice and will lead to multiplicity of proceedings. The amendment sought for incorporation of certain facts of the case and inclusion of new item will not constitutionally and fundamentally change the nature and the character of the suit. Therefore, the trial Court has rightly allowed the application.
9. In view of the aforesaid reasons, the petitioner has not made out any good ground to interfere with the order of the trial Court. Accordingly, the writ petition is dismissed.
In view of the above, the defendants are permitted to file additional written statement if any within a period of two weeks from the date of receipt of this order.
Ordered accordingly.
Sd/- JUDGE PN/-