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.11014/2019(GM-CPC) BETWEEN:
1. SRI THIMMAIAH M. K. S/O LATE KUSHALAPPA AGED 23 YEARS, 2. SMT. RESHMA W/O LATE KUSHALAPPA AGED 48 YEARS, BOTH ARE R/AT KANOORU VILLAGE AND POST, PONNAMPETNAD, VIRAJAPET TALUK, KODAGU DISTRICT - 571 216.
... PETITIONERS (BY SRI PREMNATH N. T., ADVOCATE) AND 1. SMT. M. K. KAVERAMMA, D/O LATE KUSHALAPPA AGED ABOUT 26 YEARS, R/AT EWS - 450 HEBBAL, HUDCO-LAKSHMIKANTHANAGARA MYSURU - 570 016.
2. SMT. SHYMA PRATHIPNA W/O PRATHIPNA AGED 49 YEARS, R/AT NEAR AIYAPPA TEMPLE SIDDAPUR TOWN, VIRAJPET TALUK, KODAGU DISTRICT - 571 216.
... RESPONDENTS **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 7.2.2019 ON I.A. No.6 IN O.S. NO.74/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, VIRAPET AND CONSEQUENTLY ALLOW IA NO.VI FILED BY THE PETITIONERS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The defendant Nos.1 and 2 filed the present writ petition against the order dated 7.2.2019 on I.A. No.6 made in O.S. No.74/2017 on the file of the Senior Civil Judge & JMFC, Virajpet, dismissing the application filed by them under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement.
2. The 1st respondent who is the plaintiff before the trial Court filed the suit for partition and separate possession in respect of the suit schedule properties, morefully described in the schedule to the plaint as ‘A’ schedule properties (11 items of properties) and ‘B’ schedule properties (6 items of properties), contending that they are the joint family properties of the plaintiff and the defendant Nos.1 and 2 and there was no partition and separate possession and the plaintiff is entitled to half share etc., 3. The defendant Nos.1 and 2 filed the written statement and in paragraph-11 of the written statement, it is stated that the defendants 1 and 2 have no objection for the partition of ‘A’ schedule properties among the plaintiff and defendants 1 & 2 by metes and bounds and for separate possession and enjoyment and each of them are entitled to one-third share in the plaint ‘A’ schedule properties in the event of partition. The defendants 1 and 2 are entitled to one-third share in the event of partition and separate possession of their respective shares. Therefore sought for dismissal of the suit.
4. When the matter was posted for cross-examination of PW.1, at that stage the defendant Nos.1 and 2 filed the application under Order 6 Rule 17 r/w Section 151 of the Code of Civil Procedure for amendment of the written statement as under:
1. To delete three sentences in paragraph 11, page 4 of the written statement commencing from the words, “The 1st and the 2nd in 5th line ending with the words “respective shares” in 12th line.
2. To add the following sentence in its place to read as “The plaintiff who eloped with a boy outside the community without the knowledge of the defendant Nos.1 and 2 and on their complaint before the jurisdictional Police i.e., K.R. Police Station, Mysore appeared before the Police and given her voluntary statement dated 29.6.2011 disclaiming all her rights, title and interest in or over the family landed properties in favour of defendant 1 & 2. She has not cooperated in any manner in the management and maintenance of the family properties but managed to extract huge sum of money from one Sri C.M. Nanaaiah, a family well-wisher who was assisting defendants 1 & 2 in the management and supervision of the family properties. The family owns a liability of more than RS.60 lakhs and the plaintiff is liable to repay the same in equal proportion.
The plaintiff is thus entitled owlety only in lieu of any share in the suit schedule properties in order to avoid the intrusion of any strangers and third parties in the family properties to preserve and safeguard the family sentiments.
5. The said application was resisted by the plaintiff by filing objections. The trial Court considering the application and the objections by the impugned order dated 7.2.2019 dismissed the application. Hence the present writ petition is filed.
6. I have heard the learned counsel for the petitioners.
7. Sri N.T. Premnath, learned counsel for the petitioners – defendant Nos.1 and 2 contended that the impugned order passed by the trial Court dismissing the application filed by the defendant Nos.1 and 2 under Order 6 Rule 17 of the Code of Civil Procedure, is erroneous and contrary to the material on record and liable to be set aside. He further contended that the document produced along with the application for amendment was executed by the plaintiff on 29.6.2011 before the K.R. Pur Police Station, Mysore and the present respondent has voluntarily disclaimed her right, title and interest in and over the family properties and the petitioners were unable to produce the document or give the said document to their counsel before filing the written statement. Therefore the proposed amendment is necessary and proper to resolve the dispute between the parties. He would further contend that the proposed amendment is only to delete some of the sentences in the written statement and to include the pleadings mentioned in the application, which do not amount to taking away the admissions or change the character of the defence made by the petitioners. Therefore he sought to allow the writ petition.
8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed the suit for partition and separate possession in respect of the suit schedule properties, morefully described in the schedule to the plaint as ‘A’ schedule properties (11 items of properties) and ‘B’ schedule properties (6 items of properties), contending that plaintiff and defendant Nos.1 and 2 are the members of the joint family and she is entitled to share. The defendant Nos.1 and 2 filed the written statement and at paragraph-11 of the written statement, defendant Nos.1 and 2 admitted in categorical terms that they have no objection for partition of 1/3rd share each to the plaintiff and defendant Nos.1 and 2 in respect of ‘A’ schedule properties. Merely because the statement was made by the plaintiff before the K.R. Pur Police Station, Mysore, disclaiming her rights in respect of the family immovable properties, is not a ground to file application for amendment of the written statement to incorporate certain averments with regard to her personal life. The statement made by the plaintiff before the Police disclaiming her rights in respect of the immovable properties, is not a ground to dismiss the suit. Ultimately it is for the parties to prove their case based on the oral and documentary evidence to be adduced and produced by both the parties.
9. The mere statement made by the plaintiff before the Police, is not a ground to take away admissions made by the defendants in paragraph-11 of the written statement that they have no objection for decreeing the suit in respect of ‘A’ schedule properties. The application for amendment filed is nothing but to take away the admissions made in the written statement, which is impermissible in law. The trial Court considering the entire material on record has come to the conclusion that the application filed for amendment of the written statement, is nothing but trying to introduce new case and it definitely change the character of the suit and will take away the admissions of defendant Nos.1 and 2 in the original pleading that they have no objection for the plaintiff to take one-third share in the ‘A’ schedule properties and the application is only to protract the proceedings. The trial Court rightly dismissed the application. The same is in accordance with law. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. The petitioners have not made out a ground to interfere with the impugned order passed by the trial Court in exercise of power under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
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JUDGE