Karnataka High Court

Sri D Mahaveer vs Smt D Navarathnamma on 5 January, 2022

Bench: Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 5TH DAY OF JANUARY 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

 WRIT PETITION NO.15868 OF 2019 (GM-CPC)

BETWEEN:

SRI D MAHAVEER
S/O LATE DEVARAJAIAH,
AGED 55 YEARS
R/A NO.101/B, 70TH CROSS,
17TH A MAIN, 5TH BLOCK,
RAJAJINAGAR
BANGALORE-560010.
                                        ...PETITIONER
(BY SRI. K.N. NITISH, ADVOCATE)

AND:

1.     SMT D NAVARATHNAMMA
       D/O LATE N DEVARAJAIAH
       W/O SRI V P DHARMAPALAIAH
       AGED 67 YEARS, R/A VADDGERE VILALGE,
       KOTTAGERE TALUK,
       TUMKUR DISTRICT.

2.     SMT D PADMASHREE
       D/O LATE N DEVARAJAIAH
       W/O SRI LATE RAJARATHNAIAH,
       AGED 65 YEARS,
       R/A DADAGA,
                          2




     DADAGA POST,
     NAGAMANGALA TALUK
     MANDYA DISTRICT.

3.   SRI D PARSHWANATHAIAH @ D PARSHWANATH
     S/O LATE N DEVARAJAIAH
     AGED ABOUT 61 YEARS,
     R/A NO.361, 80 FEET ROAD,
     6TH BLOCK, RAJAJINAGAR
     BANGALORE-560010.

4.   SMT PRATHIBA BHAGAWAN
     W/O SRI C P BHAGAWAN MAJIOR
     NO.119, "AUDHARYA" 4TH CROSS,
     5TH C MAIN ROAD, RPC LAYOUT
     VIJAYANAGAR II STAGE
     BANGALORE-560040.

5.   SRI NINGAPPA
     AGED 75 YEARS,
     PROP. OF SREE ADHICHUNCHANAGIRI
     ELECTRICAL AND BATTERY WORKS,
     NO.361, 80 FEET ROAD,
     BANGALORE-560010.

6.   SRI SAYAD ZAKEER
     AGED 45 YEARS
     PROP. OF NEW HAK MOTORS
     NO.361, 80 FEET ROAD,
     6TH BLOCK, RAJAJINAGAR
     BANGALORE-560010.

7.   SRI A AROGYASWAMY
     AGED 57 YEARS
     PROP. OF SHANTHI WELDING WORK
     NO.361, 80 FEET ROAD
     6TH BLOCK, RAJAJINAGAR
     BANGALORE-560010.
                          3




8.   SMT SUMA
     W/O SRI D MAHAVEER
     AGED 52 YEARS,
     R/A NO.101/B, 70TH CROSS
     17TH A MAIN, 5TH BLOCK,
     RAJAJINAGAR
     BANGALORE-560010.
                                    ....RESPONDENTS

(BY SRI. H SHANTI BHUSHAN, ADVOCATE FOR R-3
    SRI. VINAY D. HOSMATH, ADVOCATE FOR R-1 & R-2
    R-4 TO R-8 ARE SERVED)



     THIS WRIT PETITION IS FILED UNDER ARTICLE 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO

SET ASIDE ORDER DATED 08.03.2019 PASSED BY THE

LEARNED IX ADDL. CITY CIVIL AND SESSIONS JUDGE IN

O.S.NO. 2929/2012 AT BANGALORE ON I.A. NO. 4 AT

ANNX-D.



     THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE

FOLLOWING:
                              4




                         ORDER

The petitioner being aggrieved by the order

dated 8.3.2019 passed on the application in

O.S.No.2929/2012 by the IX Additional City Civil and

Sessions Judge, Bengaluru (CCH No.5) has filed the

present writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

Respondents No.1 to 3 filed a suit in

O.S.No.2929/2012 for the relief of partition and

separate possession. In the said suit, the petitioner

herein (defendant No.1) filed written statement and

the Trial Court has framed the issues. Thereafter, the

petitioner has filed an affidavit wherein he has stated

that by oversight has missed two sentences which

were part of pleadings in paragraph 6 of the plaint and

the same were to be denied by him along with other

sentences of the said paragraph No.6 of the plaint as

otherwise it would end abruptly without any meaning.

Further, petitioner has stated that in the family

settlement deed dated 25.9.2011, it is clearly

described that item No.3 is the self acquired property

of Brahmalamma and the same shall devolve on all

the legal heirs equally i.e. each heir shall be entitled

to 1/4th share in the property. Further the petitioner

has stated that in paragraphs No.8,11 and 14 of the

written statement, it is either mentioned as item No.3

or item No.4 as both item Nos.3 and 4 are the self

acquired properties of Brahmalamma which is

effectively substantiated in paragraphs No.6 and 15 of

the written statement supported by family settlement

deed. It is further stated by the petitioner that in the

written statement, it is wrongly typed as defendant

No.3 instead of defendant No.1 as defendant No.3 is

just a tenant in the plaint schedule property. Hence,

sought for amendments in the written statement.

The plaintiffs/respondents herein have not filed

any objection to the statement. The Trial Court vide

order dated 18.3.2019 rejected the application on the

ground that the written statement was filed on

1.9.2012 and the application for amendment was filed

as an after thought and the petitioner has not made

sufficient ground for allowing the application. Hence

on the said ground, the application came to be

rejected.

3. Heard learned counsel for petitioner and

learned counsel for respondents.

4. Learned counsel for the petitioner submits

that the proposed amendments sought by the

petitioner is firstly to clarify that item Nos.3 and 4 of

the suit schedule property are self acquired property

of Smt.Brahmalamma, who is the mother of petitioner

and respondents, purchased out of her own income

and not purchased by her out of the joint family

funds. In order to clarify the same, the petitioner has

brought to the notice of the Court in the family

settlement dated 25.9.2011 that items Nos.3 and 4

are the self acquired properties of Smt. Brahmalamma

and shall devolve on the legal heirs equally i.e. 1/4 th

share. Hence, amendment was sought to rectify the

typographical errors in the written statement by filing

an application. The trial Court rejected the said

application. Hence, he submits that the Courts should

be liberal in allowing the application for amendment

and in support of the said contention, he has relied

upon the judgment of the Hon'ble Apex Court in the

case of Abdul Rehman and Anr. v. Mohd. Ruldu

and Ors reported in 2012 AIR SCW 5419. Hence, on

these grounds he prays to allow the writ petition.

5. Per contra, learned counsel for the

respondents supports the impugned order.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. It is not in dispute that the petitioner has

filed the written statement. In the said written

statement, the petitioner has stated that in the family

partition deed dated 25.9.2011, it is clearly described

that item No.3 is the self acquired property of

Brahmalamma and it devolved on all the legal heirs

equally. Further the petitioner has stated in

paragraphs No.8 and 11 of the written statement that

it is either mentioned as item No.3 or item No.4

whereas item Nos.3 and 4 are the self acquired

properties of Brahmalamma which is effectively

substantiated in paragraphs No.6 and 15 of the

written statement and the same is being supported by

the family settlement deed. The Trial Court without

considering the said aspect has proceeded to reject

the said application solely on the ground that the

application is filed at a belated stage.

8. In order to consider the contention of the

parties, it is necessary to refer to Order VI Rule 17 of

the Code of Civil Procedure, 1908.

"17. Amendment of pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised

the matter before the commencement of trial."

9. It is clear that parties to the suit are

permitted to bring forward amendment of their

pleading at any stage of the proceedings for the

purpose of deciding the real question in controversy

between them. The courts have to be liberal in

accepting the same if the same is made prior to the

commencement of the trial. If such application is

made after the commencement of the trial, in that

event, the Court has to arrive at a conclusion that in

spite of due diligence the party could not have raised

the matter before the commencement of trial. The

proposed amendment does not change the nature of