IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.15524 OF 2017 (GM-CPC) BETWEEN:
1. SRI SHANKAR BHATTA S/O. LATE SURYA NARAYAN BHATTA AGED ABOUT 78 YEARS 2. SRI H.S.VENKATESH BHATTA S/O. LATE SURYA NARAYAN BHATTA AGED ABOUT 76 YEARS BOTH ARE R/AT 274/17 “SAMEERA” 23RD CROSS 3RD STAGE, HSR LAYOUT BANGALURU – 560 102 3. SMT. SHANTHALAKSHMI AGED ABOUT 80 YEARS W/O. LATE RUSHYASHRUNGA BHATTA @ SHRUNGESHWARA BHATTA R/AT MAG MAGALABAILU KELAKOPPA VILLAGE ADDAGADDE POST SRINGERI TALUK CHIKKAMANGALORE DISTRICT – 577 101 PETITIONER NOS.1 AND 3 ARE REPRESENTED BY THEIR GPA HOLDER SRI.H.S.VENKATESH BHATTA AGED ABOUT 76 YEARS S/O. LATE SURYA NARAYAN BHATTA R/AT.NO.274/17, “SAMEERA”
23RD CROSS, 3RD STAGE HSR LAYOUT, BANGALORE – 560 102.
... PETITIONERS (BY SRI R.HEMANTH RAJ, ADVOCATE) AND:
SRI M.S.PANIRAJ @ GANESHA SINCE DEAD BY LRS 1(A) SRI M.S.HARIDASA AGED ABOUT 75 YEARS R/AT MUNDUGODU, KUNCHE BAILUR POST SRINGERI TALUK & HOBLI CHIKKAMAGALURU DISTRICT – 577 101 1(B) SRI M.S.BALAKRISHNA S/O. LATE SHAMBHATTA AGED ABOUT 65 YEARS 1(C) SMT. M.S. MALLIKA D/O. LATE SHAMBHATTA AGED ABOUT 60 YEARS 1(D) SRI M.S. NAGARAJA S/O. LATE SHAMBHATTA AGED ABOUT 46 YEARS 1(E) SRI M.S. BALASUBRAMANIA D/O. LATE SHAMBHATTA AGED ABOUT 51 YEARS R1(A TO E) ARE R/AT MARTE MASIGE POST, BHARATHI NAGAR SRINGERI TALUK & HOBLI CHIKKAMANGALORE DISTRICT 1(F) SMT. YASHODA D/O. LATE SHAMBHATTA W/O. SRI. GANESH BHAT AGED ABOUT 56 YEARS R/AT KOLAVARA, BASAVAANE POST THEERTHHALLI TALUK SHIMOGA DISTRICT – 577 201.
... RESPONDENTS (BY S.G.MUNISWAMY, ADVOCATE FOR R1(C);
SRI B.J.MAHESH, ADVOCATE FOR R1(D);
R1(A,B E & F) ARE SERVED BUT UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PORTION OF THE ORDER DATED 03.03.2017(ANNEXURE-E) PASSED BY THE COURT OF THE XXIX ADDITIONAL CITY CIVIL JUDGE, BANGALORE ON I.A.NO.4 IN OS.NO.656/2011 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the plaintiffs in a bare injunction suit in O.S.No.656/2011 now converted into a suit for declaration, are invoking the writ jurisdiction of this Court for assailing the order dated 03.03.2017, a copy whereof is at Annexure – E whereby the learned XXIX Additional Civil Judge, Bangalore having partially favoured their application in I.A.No.4 filed under Order VI Rule 17 of CPC, 1908 has rejected the first prayer in the amendment application. After service of notice, the contesting respondent having entered appearance through his counsel, resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter inasmuch as the first prayer in the subject application going by its text and context is rightly rejected by the Court below since the petitioners are admittedly not the members of the joint family.
3. The Court below has already granted leave to amend the plaint by introducing prayer Nos.2 and 3 in the vide application and thereby granted substantial justice to the petitioners.
In the above circumstances, this writ petition is disposed off, without granting indulgence.
However, this Order shall not come in the way of the petitioners moving another application for amending the plaint for introducing the prayer to the effect that the subject properties are joint family properties, since trial is of the suit has not yet commenced, if such application is filed, the learned trial Judge shall consider it expeditiously and with some lenience.
No costs.
Sd/- JUDGE KTY