IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.30205 OF 2017 (GM-CPC) BETWEEN:
SRI. SHAMMANNA S/O. LATE KARIYAPPA, AGED ABOUT 65 YEARS, RESIDING AT NO. 105, 2ND CROSS, MEDAHALLI, NEAR GANESHA TEMPLE, BENGALURU-560 049.
(BY SRI. THIMMAIAH K.H., ADVOCATE) AND:
1 . SMT. ASHWATHAMMA W/O. LATE SIDDARAMAIAH, AGED ABOUT 72 YEARS, RESIDING AT NO. 139, 1ST MAIN ROAD, 3RD CROSS, KAVAL BYRASANDRA, R.T. NAGAR POST, BENGALURU-560 032.
2 . SMT. NARAYANAMMA W/O. JUNJAPPA, AGED ABOUT 70 YEARS, RESIDING AT VINAYAKA LAYOUT, 2ND CROSS, MEDAHALLI, BIDRAHALLI HOBLI, BENGALURU-560 049.
3 . SRI. VENKATASWAMY S/O. LATE KARIYAPPA, AGED ABOUT 63 YEARS, RESIDING AT NO. 106, 2ND CROSS, MEDAHALLI, ... PETITIONER NEAR GANESHA TEMPLE, BENGALURU-560 049.
4. SMT. SIDDARAMAKKA D/O KARIYAPPA, AGED ABOUT 70 YEARS RESIDING AT NO.105 2ND CROSS, MEDAHALLI, NEAR GANESHA TEMPLE, VIRGONAGAR POST, BENGALURU – 560 049.
5. SRI. K.KRISHNAPPA S/O LATE KARIYAPPA AGED ABOUT 68 YEARS, RESIDING AT NO.41 “ESHWARA NILAYA” MEDAHALLI, VIGRONAGAR POST, BENGALURU - 560 049.
... RESPONDENTS (BY SRI. P.SRINATH, ADVOCATE FOR SRI H.S.RAMAMURTHY FOR R-1;
BY SRI HARISHA O.K. FOR R-4; BY SRI T.SRINIVASA FOR R-5;
R-2 & R-3 ARE SERVED & UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORD ON THE FILE OF II ADDL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN O.S.NO.408/2015; SET ASIDE THE IMPUGNED ORDER PASSED BY THE II ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT BENGALURU IN O.S.NO.408/2015 DTD:31.5.2017 AT ANNEXURE-E; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a partition suit in O.S.No.408/2015 is invoking the writ jurisdiction of this Court for assailing the order dated 31.03.2017, a copy whereof is at Annexure-E, whereby the learned II Additional City Civil Judge, Bangalore Rural District having rejected his application filed under Order XII Rule 6 of CPC, 1908, refused to grant judgment on the asserted admission of the respondent-defendants in their pleadings.
2. After service of notice respondents having entered appearance through their counsel resist the writ petition. However, one of the respondent namely defendant No.4 fairly submits that he too sails with the petitioner.
3. Having heard the learned counsel for the parties and having perused the petition papers, the impugned order is liable to be set at naught and issuance of a direction to the learned trial Judge for granting judgment on admission is warranted for the following reasons:
(a) the suit is for partition; the share claimed is 1/6th; defendant Nos.1, 2 & 5 in their Written Statement dated nil at para 7 admits as follows:
“Since no partition is effected among the legal heirs of Kariyappa as on this day. But all the parties are entitled for 1/6th share in the suit schedule property. It is also not in dispute there is an attempt to settle the issue to divide the properties among the joint family members, for some reason matter is not yet settled because of difference of opinion and co-operation is not extended by the parties while the proposal for division of the property was going on. As a result of its, the dispute placed before this Hon’ble court for division of the properties.”;
(b) the third defendant in his Written Statement of November 2015, a copy whereof is at Annexure-B, at paras 10 & 11 has taken the stand as is taken by defendants 1, 2 & 5 above, as under:
“10. The averment made in para-10 of the plaint with regard to the plaintiff and defendant constituted Hindu undivided family and there is no partition during the life time of Kariyappa or subsequently are not disputed. It is true that the plaintiff and the defendants are entitled each to 1/6th share in respect of the suit schedule property.
11. The averment made in para-11 of the plaint that there was a misunderstanding in the joint family and as it was not possible to get on with the joint family are hereby denied as false and plaintiff is put to strict proof of he same. The further allegation in the same para that, the plaintiff demanded partition over the suit scheduled property claiming 1/6th share may be true”.
(c) the fourth defendant Sri. Krishnappa too has filed a memo in the Court below adopting the stand of rest of the defendants in their pleadings;
(d) learned Sr. Advocate Sri S.P.Shankar on request assisted the Court as amicus curiae by highlighting the true object & purport of Order XII Rule of CPC, 1908; he submitted that the object to Rule 6 is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the said party is entitled; he argues that the Court should not unduly narrow down the meaning of this Rule, as the object is to enable a party to obtain speedy judgment; where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed vide UTTAM SINGH DUGAL & CO.LTD., vs. UNION BANK OF INDIA, AIR 2000 SC 2740. The contentions in the Written Statement make out an eminent case for grant of a judgment on admission;
(e) the contention of the first respondent that the impugned order is unassailable since he has filed an application under Order VI Rule 17 of CPC, 1908 seeking leave to amend his Written Statement is bit difficult to accept; what is sought for in the amendment is the inclusion of some other properties to the fray of the suit and nothing is mentioned about the plaint schedule property to which admissions of the defendants relate. It is needless to mention that the learned trial Judge would consider the said application for amendment as early as possible and independent of this judgment.
In the above circumstances, this writ petition is allowed and impugned order is set at naught; petitioner’s subject application having been favoured, the Court below shall grant a judgment on admissions mentioned above in terms of Order XII Rule 6 and there upon draw a decree accordingly. However, the Court below shall consider the application seeking amendment of Written Statement filed by the contesting respondent-defendants filed under Order VI Rule 17 r/w Section 151 of CPC, 1908 as early as possible.
All other contentions of the parties in respect of all other properties are kept open.
This Court places on record its deep appreciation of the valuable assistance rendered by the learned Senior Counsel Sri. S.P.Shankar.
No costs.
Sd/- JUDGE DS