IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.28257/2015 (GM-CPC) BETWEEN:
1. Bheeshmachar, Since deceased by his LR’s.
1(a) Smt.Prabha, W/o Late Bheeshmachar, Aged about 50 years.
1(b) Smt.Savitha, D/o late Bheeshmachar, Aged about 38 years.
1(c) Sri.Padmanabhan @ B.Praveen, S/o late Bheeshmachar, Aged about 32 years.
All are residing at: No.58, 4th Cross, Ganesha Block, RT Nagar Post, Bengaluru – 560 032.
(By Sri.V.Anand, Advocate) AND:
1. Sri.Sampath Kumar, S/o late Keshavachar, Aged about 49 years, …Petitioners No.7, Pammegowda Road, JC Nagar, Bengaluru – 560 006.
2. Sri.Garudachar, Aged about 49 years.
3. Sri.Lokanath, Aged about 40 years.
4. Sri.Krupachar, Aged about 38 years.
Nos.2 to 4 are the sons of late Keshavachar and All are Residing at:
No.7, Pammegowda Road, J C Nagar, Bengaluru – 560 006. Respondent Nos.2 to 4 are The formal parties Hence notice is not required ...Respondents (By Sri.K.S.Chandrahasa, Advocate for R1 Notice to R2 to R4 dispensed with) This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 24.06.2015, on I.A.No.28 dated 10.02.2015, in O.S.No.4011/2001 on the file of the XVIII Additional Civil and Sessions Judge, Bangalore City (CCH-10) produced at Annx-A..
This Petition coming on for Preliminary Hearing in ‘B’ group this day, the Court made the following:
O R D E R The petitioners who are the legal representatives of defendant No.1 have assailed the order of the trial Court rejecting I.A.No.28 filed under Order VI Rule 17 of CPC wherein the defendants had sought for amendment of their written statement to insert paragraph 8(a) and make pleadings to the effect that the defendants have a share in ‘B’ schedule property. The plaintiff has filed the suit for partition with respect to ‘A’ schedule and ‘B’ schedule properties and has sought for half share in ‘A’ schedule property and 1/5th share in ‘B’ schedule property and 1/3rd share in the rent received by the defendant No.2 from the tenants. Relief was also sought to render accounts with respect to ‘B’ schedule property. At a subsequent stage, in the proceedings, the plaintiff had filed a memo and sought to restrict the relief sought for only in respect of ‘A’ schedule property, while submitting that no relief was sought for as against ‘B’ schedule property.
2. The trial Court has accepted the memo and permitted the plaintiff to give up relief as regards ‘B’ schedule property. The defendant No.1 however, had objected to allowing of the memo and subsequently had filed W.P.No.46376/2012 challenging the order of the trial Court. Said Writ Petition came to be dismissed observing that the plaintiff had absolute right as regards to the relief sought for. However, the Court had observed that the defendants were at liberty to take appropriate steps with respect to ‘B’ schedule property in accordance with law. The said order disposing of the Writ Petition was passed on 21.11.2014. Subsequently, defendant No.1 has filed I.A.No.28 seeking to amend the written statement and by virtue of the said amendment, was seeking division with respect to ‘B’ schedule property. Said application was filed on 10.02.2015.
3. Learned counsel for the petitioners i.e., legal representatives of first defendant submits that the amendment application has been filed in light of the claim of the first defendant with respect to ‘B’ schedule property and it is contended that ‘B’ schedule property was also ancestral property.
4. It is further contended that this Court had granted liberty to take necessary steps to safeguard with respect to ‘B’ schedule property in W.P.No.46376/2012 and in light of the said observations present application came to be filed.
5. It is further contended that even defendants in a suit for partition are in the position of the plaintiff and is entitled to seek for share in the property.
6. Learned counsel for the respondents on the other hand supports the findings in the order of the trial Court and contends that there is a delay in filing the application for amendment and that in the evidence, the defendant DW.1 has admitted that other defendants have an interest in ‘B’ schedule property. Hence, it is contended that no purpose will be served by allowing the amendment application.
7. Heard both the counsel.
8. It is to be noted that though giving up of relief as regards ‘B’ schedule property was permitted, the Court had observed that the petitioners were at liberty to take appropriate steps with respect to ‘B’ schedule property. It is also a settled position of law that the defendant is also in the position of the plaintiff in suit for partition. If it were to be so that the defendants are seeking to assert claim with respect to ‘B’ schedule property on the ground that same is ancestral property, without entering into the merits of such contention, the amendment sought for deserves to be permitted. Various other contentions are adverted to including that the Will is required to be proved in accordance with law. At the stage of deciding the application for amendment, Court is not called upon to enter into the merits of the averments sought to be incorporated in the pleadings. It is also not in dispute that earlier W.P.No.46376/2012 came to be disposed of after the evidence of the parties was led. It is only thereafter the application for amendment could have been filed and hence, it cannot be said that the application that is filed either belated or that there was no ground made out for permitting such an amendment.
9. The veracity of the admission stated to have been made by the petitioners as regards ‘B’ schedule property is a matter to be appreciated during trial.
10. In light of the above discussion, petition is allowed impugned order is set aside and the application for amendment is allowed. All contentions of the parties are kept open.
11. Taking note that suit is of the year 2001, parties to cooperate with expeditious conclusion of trial and the trial Court to take up the matter on priority and dispose of the same taking note of the administrative guidelines relating to disposal of the suits pending for above 10 years.
12. The trial Court to endeavour to complete the trial and dispose of the suit within a period not later than eight months from date of receipt of certified copy of the order.
Sd/- JUDGE NS