Karnataka High Court
Smt. Ramakka vs Sri B M Ramakrishnappa on 23 February, 2018
Author: S Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.29693 OF 2017 (GM-CPC)
Between:
Smt.Ramakka,
W/o Late Munivenkataramaiah,
Aged About 60 years,
R/at No.2P, 3649,
Vinayakanagar,
Kamakshipalya. ... Petitioner
(By Sri: K P Bhuvan, Advocate)
And
1. Sri B M Ramakrishnappa,
Aged about 69 Years,
S/o Late Munishamappa.
2. Sri B M Venkateshappa,
Aged about 63 Years,
S/o Late Munishamappa,
Both respondents 1 & 2
Are R/at Bettahalli Village,
Sulibele Hobli
Hoskote Taluk-562104
Bengaluru Rural District.
3. Smt.Muniyamma
W/o Late Narayanaswamy,
D/o Late Munishamappa,
Aged about 63 years,
R/at No.40, 6th Main,
Maruthinagar, Kamakshipalya,
Bengaluru-560079
2
Smt Jayamma
W/o Late Sampangiyappa,
Aged about 73 Years,
R/at No.418, 13th Cross,
Kondappa Layout, Yelahanka,
Bengaluru-560064.
4. Smt Sarojamma
W/o N. Muniramaiah,
Aged about 67 years,
R/at No.1, Chinnigappa Layout,
Gopalaiah Road, Kamakshipalya,
Bengaluru-560079 ... Respondents
(By Sri: G Papi Reddy, Advocate for R1 & R2
v/o dated 24.7.2017, notice to R3-5 is dispensed with)
This Writ Petition is filed under Article 227 of the
Constitution of India praying to set aside the impugned order
dated 26.4.2017 passed in O.S.No.2308/2005 on the file of
the Senior Civil Judge at Bengaluru Rural District,
Bengaluru and the impugned order passed in I.A.No.7 filed
by the Petitioner/Defendant No.1 under Order 6, Rule 17 Of
CPC at Annexure-E and etc.
This Writ Petition coming on for Preliminary Hearing in
'B' Group, this day, the Court made the following:
ORDER
The petitioner has filed the present writ petition calling in question the order dated 26.4.2017 passed on I.A.No.7 under Order 6 Rule 17 of C.P.C. in O.S.No.2308/2005 on the file of I Additional Senior Civil Judge, Bangalore Rural District, Bangalore. 3
2. The suit for partition has been filed by the plaintiffs with respect to items (a) to (f) wherein, the plaintiff claims one-third share in each of the properties contending that the said properties are ancestral properties. The defendant had initially filed the written statement and contended that the properties at (a) to (f) are not ancestral properties and hence, sought for dismissal of the suit.
3. The defendant, after commencement of evidence has filed an application under Order 6 Rule 17 of C.P.C. seeking to amend the written statement by including para 11(a) to the written statement. The proposed amendment is as follows:-
"a) The first defendant respectfully submits that, without prejudice to the contentions raised in the above paragraphs, the plaintiffs condensively failed to include the joint family properties which are standing in the name of the 2nd plaintiff. In fact, the land in sy.no.52/P1 measuring 24 guntas situated at Naganayakanahalli illage, Channrayapatna Hobli, Devanahalli Taluk, though it is a granted on behalf of the joint family in the name of the 2nd plaintiff, the said property is not included in 4 the suit is required to be dismissed for non-
joinder of the said properties. That apart the land bearing Sy.No.56/4 measuring 1½ guntas, situated at Mangasandra Village, Vijayapura Hobli, Devanahalli Taluk though purchased in the name of one Ramakka i.e., wife of 1st plaintiff herein, though it is also a joint family property, the same was not included in the suit schedule for the reasons best known to the plaintiffs. Though the suit schedule properties are the self acquired properties of Munishamappa and during his life time he has bequeathed the same in favour of M.Shivaprasad and inspite of the afore said properties are the joint family properties, they have not included in the schedule. Hence the suit is liable to be dismissed for non-joinder of all the joint family properties and also non- joinder of necessary and proper parties to the suit, as stated above M.Shivaprasad in whose favour the suit schedule properties are bequeathed vide registered will bearing document No.78/97-98 dated 16.9.1997 by Munishamappa and Ramakka w/o Ramakrishnappa were not made as parties in the above suit."
4. In essence, the amendment seeks to include certain properties which the defendant claims to have been willfully left out while describing the suit schedule 5 property and the defendant specifically asserts by way of amendment that the suit is liable to be dismissed for non-joinder of all the joint family properties and also for non-joinder of proper parties to the suit, as one Mr.M.Shivaprasad, in whose favour the suit schedule properties are bequeathed, has not been arrayed as party to the suit.
5. In support of the said application, the defendant has stated that it is only at the time of leading of evidence on his side, that they traced out certain records, which indicate the particulars of properties standing in the name of plaintiff. Hence, the defendant has sought for amending the written statement on the grounds made out.
6. The plaintiff has filed objections to the interlocutory application filed by the defendant and has primarily contended that the proposed amendment contains evidence, which is not necessary, that the proposed amendment, if allowed, would amount to permitting the defendant to withdraw the case set out in 6 the written statement and also get over the admissions made therein, that the proposed amendment is inconsistent and contradictory to the case already set out in the written statement and such amendment is beyond the scope of power conferred to permit amendment of pleadings.
7. It is seen that in essence, it appears that the defendant is seeking to include within the ambit of the partition suit certain properties which, according to the defendant has been left out of the suit intentionally. While considering the amendment application, it is to be seen that if the suit were to be decreed and the contention of the defendant were to be accepted, it would result in allowing certain properties to remain outside the ambit of partition suit, which the plaintiff has willfully omitted to include. Further the result would only be a partial partition.
8. The application for amendment in a suit for partition insofar as it concerns certain properties that have been left out from the ambit of suit needs to be 7 considered bearing in mind that a partition requires partition by metes and bounds of all properties. Many a time a plaintiff would seek for partition of the properties belonging to the other co-sharers while omitting to include properties in which the plaintiff may himself have to part a share, in a mala fide manner. Such is the contention in the present case as well.
9. Though it has been contended by plaintiff that the application for amendment is one that has been filed to protract the proceedings and has been done in bad faith, however the application for amendment may be allowed in order to effect complete partition of all the properties and for the delay that can be attributed to the defendant, he can be put to terms by imposition of costs.
10. Thus, in view of what is stated above, the order of the Trial Court dated 26.4.2017 is set aside. The application for amendment filed by the defendant is allowed. However, the defendant is liable for payment of 8 costs of `3,000/- (Three thousand only) payable to the defendants.
This writ petition is accordingly allowed.
Sd/-
JUDGE VGR