Karnataka High Court
Sri.V.S.Chikkaveera vs Sri.M.S.Shankaregowda on 6 January, 2021
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.12572 OF 2016 (GM-CPC)
BETWEEN:
SRI.V.S.CHIKKAVEERA
S/O M D SANNAPPA
AGED ABOUT 63 YEARS
R/A MALANGI VILLAGE
KASABA HOBLI, PERIYAPATNA TALUK
PRESENTLY R/A VIJAYANAGARA
ST.THOMAS ROAD, GONIKOPPAL
VIRAJPET TALUK,SOUTH COORG
...PETITIONER
(BY SRI.P.M. SIDDAMALLAPPA, ADVOCATE)
AND:
1. SRI.M.S.SHANKAREGOWDA
S/O M D SANNAPPA
AGED ABOUT 63 YEARS
R/A GONIKOPPALU, VIRAJPET TALUK
SOUTH COORG, PIN 573 201.
2. SMT V S KAMALAMMA
W/O LATE THIMMAIAH V T
AGED ABOUT 73 YEARS
R/A RAMAPPA COMPOUND
MAIN ROAD, GONIKOPPAL
VIRAJPET TALUKM, SOUTH COORG, PIN - 573 201.
3. SMT SHARADAMMA
W/O LATE PUTTEGOWDA
AGED ABOUT 66 YEARS
R/A MALANGI VILLAGE, KASABA HOBLI
PERIYAPATNA TALUK - 573 201.
...RESPONDENTS
(BY SMT. ANUSHA ARUNDI, ADVOCATE FOR
SRI. A.MADHUSUDHAN RAO, ADV. FOR R-1
R-2 & R-3 SERVED- UNREPRESENTED)
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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED: 15.02.2016 VIDE ANNEXURE-E PENDING ON THE FILE
OF CIVIL JUDGE (JUNIOR DIVISION) & JMFC PERIYAPATNA IN
O.S.NO. 59/2008 AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This petition by the plaintiff in O.S.No.59/2008 is directed against the impugned order dated 15.02.2006, whereby the trial Court rejected I.A.No.14 filed by the petitioner under Order VI Rule 17 CPC seeking amendment of the plaint.
2. The material on record indicates that it is not in dispute that the petitioner-plaintiff filed O.S.No.59/2008 against the respondents-defendants for partition and separate possession of his alleged share in the suit schedule immovable properties and for other reliefs. Respondent No.1 filed his written statement and sought for dismissal of the suit inter alia contending that certain properties had not been included among the suit schedule properties and as such, the suit for partial partition was not maintainable.
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3. Learned counsel for the petitioner in addition to reiterating various contentions urged in the petition and referring to various documents produced therein, submits that it is well settled that in a suit for partition, it is open for any of the parties to seek addition of any property claiming the same to be a joint family property by way of amendment and the merits/demerits of the said contention cannot be gone into at the stage of considering such an application and the same will have to be necessarily decided on merits after trial. In support of his contention, reliance is placed by this Court on the decision of this Court in the case of Sangavva Kaladagi and Others Vs. Shantawwa Sajjan and Another reported in 2020 (4) KCCR 2626.
4. Per contra, learned counsel for the respondents submits that in the first instance, defendant No.1, who filed his written statement long back on 13.08.2008, had pointed out that the properties now sought to be included as additional properties have not been included in the original plaint. Even subsequently when the petitioner filed an 4 application for amendment of plaint by including certain other properties, the present properties were not included by the petitioner in the said application for amendment filed earlier. Further even during the evidence, no attempt was made by the petitioner to include the present properties as additional properties. It is therefore contended that the conduct of the plaintiff coupled with the inordinate delay and latches is sufficient to indicate that the plaintiff did not exercise due diligence in filing the instant application before commencement of trial but only subsequently and the said application has been correctly rejected by the trial Court. In support of her contentions, learned counsel for the respondents places reliance on the decision of the Apex Court in the case of M. Revanna Vs. Anjanamma & Others reported in (2019) 4 SCC 332.
5. I have given my anxious consideration to the rival contentions and perused the material on record.
6. In so far as the decision of the Apex Court in Revanna's case (supra), the factual situation obtaining in the said decision wherein the Apex Court confirmed the 5 order of this Court rejecting the application for amendment was entirely different from the facts and circumstances of the present case. In fact, as rightly pointed out by the learned counsel for the petitioner, apart from the well settled principle that in a suit for partition all the parties stand in the position of the plaintiff/defendants, prayer for inclusion of additional properties claiming the same to be joint family properties is permissible even at the stage of final decree proceedings and the contention with regard to proof or otherwise of the said properties being joint family properties cannot be gone into at the stage of deciding an application for amendment as held in the case of Sangavva Kaladagi and others (supra). Under these circumstances, I am of the considered opinion that the trial Court completely mis-directed itself in rejecting the application for amendment filed by the petitioner.
7. In so far as the contentions urged by respondent No.1, the application was barred on account of latches and inordinate delay and the conduct of the plaintiff in not filing 6 application earlier, I am of the view that the same can be compensated by imposing adequate cost on the petitioner.
8. In the result, I pass the following:
ORDER i. The petition is allowed.
ii. The impugned order dated 15.02.2016 passed in O.S.No.59/2008 by the Civil Judge (Jr. Dn.)) and JMFC, Periyapatna is hereby set aside. iii. Consequently, I.A.No.14 filed by the plaintiff in O.S.No.59/2008 is allowed.
iv. Petitioner-plaintiff to carry out amendment and file amended plaint within one month from the date of receipt of a copy of this order. v. Liberty is reserved in favour of the defendants to file their additional written statement to the amended plaint. vi. The petitioner is hereby directed to pay costs of Rs.10,000/- to respondents/defendants in the trial Court.
Sd/-
JUDGE Bmc