IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.15063 OF 2015 (GM-CPC) Between 1. Sri. S.K. Vijayakumar S/o. Late S.N. Krishna Kumar Aged about 47 years 2. Smt. Sushma W/o. S.K. Vijayakumar Aged about 37 years Both are R/at No.852, Cinema Road I Ward, Doddaballapur Town – 561 203. (By Sri V.F. Kumbar, Advocate) And 1. Sri S.K. Ravikumar S/o. Late S.N. Krishnakumar Aged about 49 years 2. Sri S.K. Vasudeva S/o. Late S.N. Krishnakumar Aged about 46 years 3. Smt. Sharadamma W/o. Late S.N. Krishnakumar Aged about 69 years 4. Smt. Radha @ Rukmini D/o. Late S.N. Krishnakumar Aged about 50 years All Respondents No.1 to 4 are Residing at No.4314, New No.4136 Opp. New Karaga Temple, Gandhi Circle Doddaballapur Town – 561 203.
... Petitioners 5. Sri S.K. Ajaykumar S/o. Late S.N. Krishnakumar Aged about 37 years Residing at No.4314, New No.4136 Opp. New Karaga Temple, Gandhi Circle Doddaballapur Town – 561 203.
6. The Karnataka State Financial Corporation Rep. by its Managing Director No.1/1, Thimmaiah Road Bangalore – 560 052.
7. Sri D.V. Gandadhar S/o. D. Venkataramanappa Aged about 52 years R/at No.10, 1st Cross Karagappa Garden,Mission Road Bangalore – 560 027.
8. Sri Rakesh Kumar Gour S/o. Late Kailash Chand Gour Aged about 32 years R/at No.313, Lakshmi Road Shanthinagar Bangalore – 560 027. ... Respondents (By Sri V.B. Ravishankar, Advocate for R1 to R4 & R8;
Sri Bipin Hegde, Advocate for R6; Sri Y.H. Ganesh Bhat, Advocate for R7; V/o. dated 11.07.2019, notice to R5 is dispensed with) This Writ Petition is filed under Articles 226 and 227 of Constitution of India praying to quash the order passed by the learned Senior Civil Judge & JMFC, Doddaballapur on I.A.No.20 in O.S.No.343/2006 dated 02.03.2015 vide Annexure-H and etc.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following:
ORDER The petitioners being defendant Nos.1 & 2 in contesting respondents partition suit in O.S.No.343/2006 are invoking the Writ Jurisdiction of this Court seeking invalidation of the order dated 02.03.2015, a copy whereof is at Annexure-H whereby the learned Senior Civil Judge and JMFC, Doddaballapur, has favoured the respondent/plaintiffs’ application in I.A.No.20 for amendment of the plaint. After service of notice, the respondents entered appearance through their counsel and oppose the Writ Petition.
2. Learned counsel for the petitioner argues that in a suit for partition of joint family property wherein a counter claim is filed by the defendant, it is not open to the plaintiff to seek an amendment of plaint or deleting some of the suit properties or disarraying some of the parties to the suit; this having not been kept in view by learned trial Judge, the impugned order is infected with an error of a great magnitude demonstrable by record and therefore the indulgence of this court is warranted. He further submits that the amendment is barred by law and it lacks the bona fide.
3. Learned counsel for the respondents per contra makes submission in justification of the impugned order contending that the suit has not advanced to the stage of trial although the suit is of the year 2006; no prejudice by the impugned order is caused to the petitioners’ side; the impugned order being the product of exercise of discretion by the trial Judge, this Court ordinarily does not undertake deeper scrutiny; so contending he seeks dismissal of the Writ Petition.
4. I have heard the learned counsel appearing for the parties and I have perused the petition papers.
5. Suit is of 2006 for a decree of partition and separate possession of subject properties; pleadings of the parties are complete; the petitioners herein have preferred the counter claim seeking partition & separate possession of all the properties in the suit; that being the position, the Court below could not have favored the application filed under Order 6 Rule 17 of CPC, 1908 seeking leave to amend the plaint in such a way that some of the suit properties are left out of the suit and some of the defendants who are necessary parties, are removed from the array of the parties; such removal of the parties or the properties would affect rights of the counter claimant; it is needless to mention that had there been no counter claim, the reasoning of the Court below perhaps could not have been faltered.
6. The petitioners in their counter claim have made a claim for a partition decree in their favour in respect of some of the properties that have been alienated pendente lite and now that the same have been sought to be removed from the suit frame; in such circumstance, the Court below ought not to have allowed the application for amendment that was prejudicial to the interest of the petitioners herein who happen to be counter claimants. Thus there is an error apparent on the face of the impugned order warranting indulgence of this Court for setting the injustice at naught.
In the above circumstances, this Writ Petition succeeds; the impugned order is quashed; the suit to proceed as it was before.
No costs.
Sd/- JUDGE KA