Sri. Guru Reddy @ S.N.Raju vs Smt.Gayathri
2022 Latest Caselaw 2043 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 9TH DAY OF FEBRUARY 2022

                       BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

     WRIT PETITION NO.2701 OF 2021 (GM-CPC)

BETWEEN:

SRI. GURU REDDY @ S.N.RAJU
AGED ABOUT 60 YEARS
S/O LATE NARAYANA REDDY
R/A SOMASADRAPALYA,
HSR LAYOUT, SECTOR-2,
BENGALURU - 560 102
                                        ...PETITIONER

(BY SRI. SURESH S., ADV. FOR
    SRI. HANUMANTHA REDDY N., ADV.)

AND

1.    SMT. GAYATHRI
      AGED ABOUT 42 YEARS
      W/O MUNI REDDY
      R/A NO. 46/2, GAREBAVIPALYA
      HOSUR ROAD,
      BANGALORE - 560 068
      SINCE DECEASED REP. BY HER LRS.

1(a) SRI. MUNI REDDY
     AGED ABOUT 63 YEARS
     S/O LATE KRISHNAPPA
                          2




     R/A No.46/2, GARVEBHAVIPALYA
     HOSUR ROAD
     BANGALORE - 560068

1(b) SMT. MAMATHA M.
     AGED ABOUT 36 YEARS
     D/O LATE GAYATHRI, W/O RAGHU V.
     R/A No.37, 1ST MAIN, 2ND CROSS
     SAKAMMA LAYOUT, DOORVANINAGARA POST
     BANGALORE - 560016

1(c) SMT. SUDHA M.
     AGED ABOUT 27 YEARS
     D/O LATE GAYATHRI, W/O SRIDHAR
     R/A No. GARDEN LAYOUT
     19TH MAIN ROAD, HSR LAYOUT 3RD SECTOR
     BANGALORE - 560102

2.   SMT. RPEMA
     W/O LATE JAYADEVA REDDY
     AGED ABOUT 58 YEARS
     R/A HALANAYAKANAHALLI
     VARTHUR HOBI,
     BANGALORE EAST TALUK

3.   SMT. KANTHAMAM
     AGED ABOUT 55 YEARS
     W/O GOPALA REDDY
     R/A KITHAGANOOR VILLAGE
     KRISHNARAJAPURA HOBI,
     BANGLAORE EAST TALUK

4.   SMT. RATHNAMMA @ CHINNAMAM (DEAD)
     AGED ABOUT 72 YEARS
     W/O LATE NARAYANA REDDY
     R/A SOMASANDRAPALYA
     BANGALORE - 560 102
                            3




5.   SRI SONNEGOWDA
     AGED ABOUT 55 YEARS
     S/O LATE CHOWDEGOWDA
     R/A NO. 24, 1ST CROSS, K.E.B EXTENSION
     MUNIRAMAPPA GARDEN, SANJAYANAGAR
     BANGALORE - 560 094

6.   SMT. KAVITHA
     AGED ABOUT 38 YEARS
     W/O BABURAJ, D/O S.R.VASUDEVA REDDY
     R/A SAKALAVARA VILLAGE AND POST
     JIGANI HOBLI, ANEKAL TALUK

7.   SMT. JAYALAKSHMI
     AGED ABOUT 59 YEARS
     W/O LATE SHAMANNA REDDY

8.   SMT. INDRANI
     AGED ABOUT 32 YEARS
     D/O LATE SHAMANNA REDDY

9.   SRI RAJENDRA
     AGED ABOUT 29 YEARS
     S/O LATE SHAMANNA REDDY

10 . SRI RAVINDRA
     W/O LATE SHAMANNA REDDY
     AGED ABOUT 22 YEARS

11 . SMT. KOMALAMMA
     AGED ABOUT 59 YEARS
     W/O LATE MUNI REDDY

12 . SMT PREMA
     AGED ABOUT 30 YEARS
     D/O LATE MUNI REDDY
                             4




13 . SMT. GEETHA
     AGED ABOUT 24 YEARS
     W/O LATE MUNI REDDY

14 . SMT VIMALA
     AGED ABOUT 38 YEARS
     W/O BHOOPAL REDDY

15 . SRI VIJAY REDDY
     AGED ABOUT 44 YEARS
     W/O LATE PILLA REDDY

16 . SRI BHARATH
     AGED ABOUT 23 YEARS
     S/O VIJAY REDDY

17 . KUMARI DEEPA
     AGED ABOUT 22 YEARS
     W/O VIJAY REDDY

    SL.NOS.7 TO 18 ARE R/A SINGASANDRA VILLAGE
    BEGUR HOBLI,
    BANGALORE SOUTH TALUK

18 . SRI S P SURESH
     AGED ABOUT 59 YEARS
     S/O LATE PILLA REDDY REDDY
     R/A SINGASANDRA VILLAGE
     BEGUR HOBLI, BANGALORE SOUTH TALUK

19 . SMT H J AMBIKA
     AGED ABOUT 50 YEARS
     W/O S N RAJU
     R/A SOMASANDRAPALYA
     HSR LAYOUT SECTOR-2
     BANGALORE - 560 102
                              5




20 . SMT. R SNEHA
     AGED ABOUT 30 YEARS
     W/O H. J. PRASANNA
     R/AT SOMASANDRAPALYA
     H S R LAYOUT SECTOR-2,
     BANGALORE - 560102
                                           ...RESPONDENTS

(BY SRI. PRAKASH T. HEBBAR, ADV. FOR R1(a)-R1(c)
    SRI. L. NARASIMHA MURTHY, ADV. FOR R2 & R3
    V/O DATED 18.02.2021, NOTICE TO R4
    DISPENSED WITH
    R5, R6, R7, R9, R10, R14 TO R20 ARE SERVED
    V/O DATED 30.08.2021, NOTICE TO R8, R11-R13
    STANDS WAIVED )


     THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS CONNECTED WITH O.S.NO.
4956/2011 ON THE FILE OF THE XXX ADDL. CITY CIVIL
JUDGE AND SESSIONS JUDGE AT BANGALORE, EXAMINE
THE SAME AND SET ASIDE THE COMMON ORDER
DTD.30.1.2021 MADE ON I.As. FILED UNDER SECTION
151 OF CPC AND UNDER ORDER 6 RULE 17 R/W SECTION
151 OF CPC AS PER ANNEXURE-A AND ALLOW THE
APPLICATIONS.

     THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:


                         ORDER

The petitioner being aggrieved by the order

dated 30.01.2021, passed on the applications filed by

the petitioner in O.S.No.4956/2011 by the XXX

Additional City Civil & Sessions Judge, Bengaluru City,

has filed this writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

Respondent No.1 filed a suit in

O.S.No.4956/2011 for the relief of partition and

separate possession and other consequential reliefs

against the petitioner and other respondents. The

petitioner filed written statement and also additional

written statement. The Trial Court framed issues.

Thereafter the Trial Court recorded the evidence of

respondent No.1 and petitioner. The matter is posted

for arguments. At this stage, the petitioner filed

applications seeking for amendment of written

statement and for reopening the case.

In support of the application filed for amendment

of written statement, the petitioner has filed an

affidavit stating that plaint 'A', 'B' and 'E' schedule

properties were acquired by Late Narayana Reddy

under oral partition between his brothers and sisters

in the year 1997 and he was in possession and

enjoyment of the same. During his lifetime, under

oral partition, he divided 'A' schedule property and it

was allotted in favour of the petitioner and land

bearing Sy.No.36/3 i.e., 'B' schedule property was

divided and was allotted to his daughters namely

respondents No.1, 2 & 3. Accordingly, the petitioner

is in lawful possession of 'A' schedule property and he

has developed the said land by putting up

construction. The petitioner and other respondents

are in possession and enjoyment of their respective

portions of the properties allotted to them in the oral

partition in the year 1997. The petitioner, due to

oversight, has not stated the said fact in the written

statement. Hence the petitioner has filed the

application seeking for amendment of written

statement.

In support of the application filed to reopen the

case, the petitioner has filed an affidavit stating that

the petitioner has filed an application for amendment

of written statement and now the matter is set down

for evidence on amended issues and to adduce

additional evidence, it is necessary to reopen the case

to take and consider the application for amendment

and permit the petitioner to reopen the case and

adduce further evidence. Hence, on these grounds,

prayed to allow the applications.

Respondent No.1 has filed common objections to

the said applications denying the averments made in

the applications.

The Trial Court after hearing the parties,

rejected the applications filed by the petitioner.

Hence this writ petition.

3. Heard learned counsel for the petitioner and

learned counsel for respondent No.1.

4. Learned counsel for the petitioner submits

that the proposed amendment is necessary for the

purpose of deciding the matter in dispute and to avoid

multiplicity of litigation. He further submits that if the

proposed amendment is allowed and if the petitioner

is permitted to lead further evidence, no injustice

would be caused to respondent No.1. He submits that

the Trial Court has committed an error in rejecting the

applications. He has filed a memo along with

documents. He submits that from the perusal of the

said documents, the petitioner has made out a ground

to allow the applications. Hence, on these grounds,

he prayed to allow the writ petition.

5. Per contra, learned counsel for respondent

No.1 submits that when the case is posted for

arguments, the petitioner has filed these applications

only with an intention to delay the proceedings. He

further submits that the petitioner has not established

that inspite of due diligence, the petitioner could not

raise this fact before the commencement of trial.

Further he places reliance on the judgment of the

Hon'ble Apex Court in the case of PANDIT MALHARI

MAHALE VS. MONIKA PANDIT MAHALE & ORS., reported

in (2020) 11 SCC 549. Hence on these grounds he

prays to reject the writ petition.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. Respondent No.1 has filed a suit for partition

and separate possession on 12.07.2011 and

respondent No.1 has filed an application for

amendment to include some more properties. The

said application came to be allowed. The petitioner

has filed written statement on 20.11.2011. Thereafter

additional written statement was also filed by the

petitioner on 04.09.2014. The Trial Court framed

issues. Thereafter, the Trial Court recorded the

evidence of respondent No.1 as well as the petitioner

and the case is posted for arguments. At this stage,

the petitioner has filed applications seeking for

amendment of written statement and for reopening

the case on the ground that already there was an oral

partition that took place in the year 1997 wherein 'B'

schedule property was allotted in favour of respondent

No.1 and on the basis of the said oral partition, parties

were put in possession of their respective portions

allotted to their share. If really an oral partition was

effected in the year 1997, the petitioner ought to have

stated the said aspect in the written statement that

was filed on 20.10.2011, as the petitioner was well

aware about the alleged oral partition on the date of

filing the written statement. The petitioner has not

pleaded the same in the written statement. The

petitioner has lead evidence. Even in the evidence

also the petitioner has not stated about the alleged

partition effected in the year 1997. When the case

was posted for arguments, the petitioner has filed

these applications. The petitioner has not pleaded in

the application that inspite of due diligence, the

petitioner could not raise the said facts before the

commencement of trial. The petitioner has failed to

establish that inspite of due diligence, the petitioner

could not raise this issue before the commencement of

trial. In view of the law laid down by the Hon'ble

Apex Court in the case of PANDIT MALHARI MAHALE

(SUPRA), the Trial Court was justified in rejecting the

applications filed by the petitioner. I do not find any

grounds to interfere with the impugned order.

Accordingly, the writ petition is dismissed.

SD/-

JUDGE

RD