Sri G M Byrappa vs Sri Thammanna on 8 November, 2021

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Karnataka High Court

Sri G M Byrappa vs Sri Thammanna on 8 November, 2021

Bench: B.M. Shyam Prasad

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF NOVEMBER, 2021

                         BEFORE

      THE HON'BLE Mr. JUSTICE B.M. SHYAM PRASAD

        WRIT PETITION No. 17637/2021 (GM-CPC)


BETWEEN :
--------------


1.     Sri. G.M. Byrappa
       Aged about 76 years

2.     Sri. Thammanna
       Aged about 66 years

3.     Sri. Munishamappa
       Aged about 60 years

4.     Narasimhaiah
       Aged about 55 years

All are sons of late Gullappa
Alias Chikka Munishamappa and
R/o. Upprahalli Village
Kasaba Hobli
Hosakote Taluk
Bengaluru Rural District - 562 114.   ... PETITIONERS


(By Sri. Shivanna A.G., Adv.)
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AND :
-------

1.    Sri. Thammanna
      Aged about 43 years

2.    Sri. Munishamagowda
      Aged about 27 years

3.    Smt. Bagyamma
      D/o. late Sri. Ramaiah
      Aged about 46 years

4.    Smt. Sonnamma
      D/o. late Sri. Ramaiah
      Aged about 41 years


No. 1 to 4 are sons and daughters
of Late Ramaiah, all are residing at
Upparahalli Village
Kasaba Hobli
Hosakote Taluk
Bengaluru Rural District - 562 114.


5.    Smt. Narayanamma
      D/o. late Smt. Dodda Akkayyamma and
      Late Sri. Gullappa @ Chikkamunishamappa
      Aged about 60 years
      R/o. Immadihalli
      Whitefield Post
      K R Puram Hobli
      Bengaluru East Taluk
      Bengaluru Dist. - 560 066.     ... RESPONDENTS

                               ---
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      This Writ Petition is filed under Articles 226 and 227
of the Constitution of India with a prayer to set aside the
order dated 18.06.2021 made on I.A. No. 18 by the Court of
5th Additional Senior Civil Judge, Bengaluru Rural District,
Bengaluru in O.S. No. 1274/2006 and etc.

      This Writ Petition coming on for Preliminary Hearing
this day, the Court passed the following;

                         ORDER

The petitioners, who are the defendants in O.S. No. 1274/2006 on the file of V Additional Senior Civil Judge, Bengaluru (for short, 'the civil Court'), have impugned the civil Court's order dated 18.06.2021. The civil Court by this order has rejected the petitioners' application under Order VI Rule 17 read with Section 151 CPC refusing leave to substitute certain paragraphs of their written statement. The civil Court has observed that evidence is already commenced and if the petitioners are permitted to amend the written statement, rights of the other parties would be affected adversely and put to injustice. 4

Sri. A.G. Shivanna, the learned counsel for the petitioners, submits that the petitioners have filed the written statement admitting the joint family inter se the parties as also the existence of certain ancestral properties and contending that three of the suit schedule properties are self-acquired properties and therefore should be outside the fold of partition; but the written statement is not drafted to the instructions and would be contrary to the documents which the petitioners proposes to rely upon. If there is an error in drafting the written statement, the petitioners, who are uneducated, should be permitted to plead their proper defence that would vindicate their case. Though the petitioners have sought for elaborate amendment, they would like to contest the suit on the ground that not only the three properties as mentioned in paragraph No. 2 of the written statement even other properties would be outside the fold of partition. The Court has already failed issue No. 1, permitting the respondents - plaintiffs to establish that the suit schedule properties are 5 joint family properties of the family. Therefore, no hardship would be caused.

However, Sri. A.G. Shivanna, the learned counsel for the petitioners is unable to persuade this Court to accept that the petitioners could be permitted, by way of amendment to their pleadings, to withdraw the admissions. A reading of paragraph No. 2 of the written statement leaves no doubt that the petitioners are categorical that three of the properties are their self-acquired properties and cannot be partitioned and the other properties have been granted to their father Sri. Gullappa @ Chikka Munishamappa on behalf of the family members.

Therefore, with liberty to the petitioners to persuade their defence as originally pleaded, the petition stands disposed of.

SD/-

JUDGE LRS.

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