Karnataka High Court
Sri K Ravi Kumar Patel vs Smt Namratha R K Patel on 8 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:19624
WP No. 11041 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 11041 OF 2022 (GM-CPC)
BETWEEN:
SRI K RAVI KUMAR PATEL
S/O LATE KRISHNAPPA
AGED ABOUT 60 YEARS
R/AT FLAT NO. 31/3/19 (3E)
3RD FLOOR, SHUBA SHREE APARTMENT
1ST MAIN ROAD, 1ST BLOCK
R. T NAGAR, POST
BANGALORE- 560 032
...PETITIONER
(BY SRI. NARAYANA SWAMY P M., ADVOCATE)
AND:
Digitally
signed by
NARASIMHA SMT NAMRATHA R K PATEL
MURTHY
VANAMALA W/O PRAVEEN KUMAR
Location: AGED ABOUT 29 YEARS
HIGH
COURT OF R/AT NO. 14, A SECTOR
KARNATAKA 5TH CROSS, AMRUTHANAGAR
SAHAKARANAGAR
BANGALORE- 560 092
...RESPONDENT
THIS WP IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
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NC: 2023:KHC:19624
WP No. 11041 of 2022
QUASH THE IMPUGNED ORDER DATED 08.04.2022,ON
APPLICATION UNDER SECTION 151 OF CPC
ANNEXURE-A AND ANOTHER APPLICATION UNDER
ORDER VI RULE 17 R/W SECTION 151 OF CPC
PASSED BY THE LVI ADDL.CITY CIVIL AND SESSIONS
JUDGE,BANGALORE ANNEXURE-B AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition by the defendant in O.S.No.6066/2017 on the file of the LVI Additional City Civil and Sessions Judge, Bengaluru (for short, 'the trial Court') is directed against the impugned order dated 08.04.2022 passed on I.A.Nos.10 and 11 filed by the respondent-plaintiff under Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') and Order VI Rule 17 of CPC seeking recall of the order and amendment of the plaint whereby, the said applications by the respondent-plaintiff were allowed by the trial Court.
2. Heard learned counsel for the petitioner and perused the material on record.
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NC: 2023:KHC:19624 WP No. 11041 of 2022
3. The material on record discloses that the respondent-plaintiff instituted the aforesaid suit against the petitioner-defendant for partition and separate possession of her alleged share in the suit schedule immovable properties and for other reliefs. After conclusion of trial and at the stage of arguments, the respondent-plaintiff filed the instant applications seeking reopening of the case and for permission to amend the plaint by making certain corrections and giving more details about the suit schedule properties. The said applications having been allowed by the trial Court, the petitioner is before this Court by way of the present petition.
4. A perusal of the material on record including the pleadings of the parties and the applications filed by the petitioner will indicate that the trial Court has correctly and properly appreciated the entire material on record and has recorded correct finding that the proposed amendment was relevant and necessary for adjudication of the issues in controversy between the parties and held as under: -4-
NC: 2023:KHC:19624 WP No. 11041 of 2022 "9. Point No1: As stated above applicant/plaintiff filed I.A.No.10 for recall the order and seeking permission to file amendment application and I.A.No. 11 filed under Order VI Rule 17 of CPC for seeking amendment to the plaint. In this case it is admitted fact that plaintiff is the son of defendant. Plaintiff being the son of defendant he filed this suit for partition and separate possession his legitimate share over the suit properties. It is also clear that plaintiff included the suit schedule 'C' item in the schedule of the plaint. But now he intend to include the number of the said property.
Because recently he came to know the actual number of the 'C' schedule property in FDP No.31/2007 and also intend to Include the boundaries of the schedule 'C' property.
10. Further on perusal of the objection filed by the opponent/ defendant, there is no dispute between regarding relationship between the parties. It is also admitted fact that now the suit properties are owned by defendant. It is settled principles of law that, in a suit for partition, it is necessary include all the properties belonging to their family. The same is necessary for partition of the properties between the members of the joint family. Herein this suit also the plaintiff being the son of defendant, he claiming the share over the joint family properties. Accordingly now he intend to amend the actual number of the 'C' schedule property and the -5- NC: 2023:KHC:19624 WP No. 11041 of 2022 boundaries of the 'C' schedule property. The same is not changing the nature and cause of action of the suit. Further the proposed amendment will not cause any loss to the opponent / defendant. Under such circumstances on perusal of the case papers and relationship between the parties, the court is of the opinion that, it is necessary to give an opportunity to the plaintiff to amend the plaint. Otherwise the actual number of the properties and actual boundaries of the properties are not available to the court, to decide the rights of the parties and their shares over the suit properties.
11. It is true the present application filed at belated stage. The grievance of the other side will meet by imposing cost. Accordingly this court answered point No.1 in the Affirmative.
12. Point No.2: In view of my findings on point No.1 this court proceed to pass the following:
ORDER I.A.No. 10 filed by the applicant/plaintiff under Sec. 151 of CPC is hereby allowed on cost of Rs.1000/- and applicant/plaintiff is permitted to amendment application.
I.A.No.11 filed by the applicant/plaintiff under Sec.VI Rule 17 are is hereby allowed on cost of Rs.1,000/- and plaintiff is permitted to amend the plaint as prayed in I.A.No. 11.-6-
NC: 2023:KHC:19624 WP No. 11041 of 2022 The plaintiff is directed to carry out the amendment and furnish the amendment plaint within 10 days from the date of this order."
5. In my considered opinion, the impugned order passed by the trial Court does not suffer from any illegality or infirmity and the same being in conformity with the well settled principles of law covering amendment of pleadings including the recent judgment of the Apex Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Another1, the impugned order has not occasioned failure of justice warranting interference of this Court in exercise of its powers under Article 227 of the Constitution of India, as held by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath2.
6. Accordingly, I do not find any merit in the petition and the same is hereby disposed of without interfering with the impugned order. It is however made clear that the proposed amendment shall not relate back to 1 2022 SCC Online SC 1128 2 (2015) 5 SCC 423 -7- NC: 2023:KHC:19624 WP No. 11041 of 2022 the date of the suit and shall be reckoned/considered from 11.02.2021, when the said applications (I.A.Nos.10 and 11) were filed by the respondent-plaintiff before the trial Court.
Liberty is also reserved in favour of the petitioner to file additional written statement to the amended plaint.
All rival contentions between the parties, including the contentions urged in the amended plaint, limitation etc., are kept open and no opinion is expressed on the same.
Sd/-
JUDGE RB