Smt. Rekha vs Smt. Lalithamma
2022 Latest Caselaw 8601 Kant

                             1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 13TH DAY OF JUNE, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO. 55337 OF 2018(GM-CPC)

BETWEEN:

1. SMT. REKHA
W/O SRI THIMMEGOWDA
AGED ABOUT 35 YEARS,
R/O V G KOPPALU VILLAGE
RAVANDUR HOBLI, PERIYAPATNA TALUK
MYSURU-571107

2. SRI B N MANU
S/O LATE SRI S NAGEGOWDA
AGED ABOUT 32 YEARS,
R/O BELTHUR VILLAGE
KASABA HOBLI, PERIYAPATNA TALUK
MYSURU-571107

3. SMT ANITHA
W/O SRI MALLESH
AGED ABOUT 29 YEARS,
R/O MARUR KAVAL VILLAGE
KATTEMALALAVADI HOBLI,
HUNSUR TALUK, MYSURU-571105
                                             ...PETITIONERS
(BY SRI.BASAVANNA.K.M, ADVOCATE FOR
SRI.M V HIREMATH, ADVOCATE)
                             2


AND:

1. SMT. LALITHAMMA
W/O LATE SRI S NAGEGOWDA
AGED ABOUT 59 YEARS,
R/O BELTHUR VILLAGE,
NANDINATHAPURA POST
KASABA HOBLI, PERIYAPTNA TALUK
MYSURU-571107
2. SMT DHANUJA V T
W/O SRI VENKATESH
AGED ABOUT 22 YEARS,
R/O KYATHEGOWDANADODDI VILLAGE
KASABA HOBLI, HIDAGATTI POST,
MALAVALLI TALUK, MANDYA-571430

3. SRI THEJU
S/O SRI THIMMEGOWDA
AGED ABOUT 20 YEARS,
R/O V G KOPPALU VILLAGE
RAVANDUR HOBLI, PERIYAPATNA TALUK
MYSURU-571107

4. SRI DORESWAMY
S/O SRI SANNAGOWDA
AGED ABOUT 66 EYARS,
R/O BELTHUR VILLAGE
NANDINATHAPURA POST
KASABA HOBLI, PERIYAPATNA TALUK
MYSURU-571107

5. SRI A A CHANDRAPPA
S/O LATE SRI APPAJAPPA ALIAS APPAJAIAH
AGED ABOUT 55 YEARS,
R/O AVARTHI VILLAGE, HARANAHALLI HOBLI
PERIYAPATNA TALUK, MYSURU-571107

                                           ...RESPONDENTS

(BY SRI.RAVINDRA BABU.G, ADVOCATE FOR R2 & 3;
                                 3


SRI.SHAILESH, ADVOCATE FOR SRI.C.GOWRISHANKAR, ADVOCATE
FOR R4)

     THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
28.11.2018 ON I.A.13 PASSED BY THE HON'BLE SR. CIVIL JUDGE
AND JMFC, PERIYAPATNA AT ANENX-G.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:


                            ORDER

The captioned writ petition is filed by the plaintiffs feeling

aggrieved by the order of the learned Judge passed on

I.A.No.13 filed under Order 6 Rule 17 of CPC.

2. The present petitioners have instituted a suit for

partition and separate possession in O.S.No.32/2015 by

specifically contending that suit schedule property are joint

family ancestral properties. The petitioners claim that they

are entitled for 1/5th share in the suit schedule properties.

The petitioners have also sought relief of declaration to

declare that the judgment and decree passed in

O.S.No.61/1998 is not binding on their legitimate share.

Consequently, sale deed dated 26.04.2014 executed by

defendant Nos.1 and 2 in favour of defendant No.6 is also

challenged.

3. When the matter was set in for further cross-

examination of plaintiffs, the present petitioners/plaintiffs have

come up with this proposed amendment. By way of proposed

amendment, plaintiffs intend to incorporate the pleadings

relating to sale transactions done by defendant No.1 in favour

of defendant No.5. The plaintiffs by way of proposed

amendment want to further plead that judgment and decree

passed in O.S.No.61/1998 is a collusive decree which was

passed on a fraudulent registered sale agreement. The

plaintiffs also intend to plead that there was no legal necessity

for the defendant No.1 to enter into a transaction with

defendant No.5 and further want to plead that defendant No.1

was addicted to vices.

4. The said contention is rejected by the learned

Judge. While rejecting the application filed in I.A.No.13, the

learned Judge was of the view that no sufficient cause is made

out by the plaintiffs while seeking the amendment. The

learned Judge has found fault with the plaintiffs for not

seeking amendment before commencement of trial. The

application filed in I.A.No.13 is rejected by recording a finding

that plaintiffs cannot overcome the admissions elicited in

cross-examination.

5. Heard learned counsel appearing for the petitioners

and learned counsel appearing for the contesting respondents.

6. Admittedly, the present suit is one for partition and

separate possession. When the matter was set in for further

cross-examination, the plaintiffs by way of proposed

amendment intend to incorporate para 5(a). In para 5(a),

plaintiffs intend to plead additional pleadings relating to

transactions between defendant Nos.1 and 5. The proposed

amendment does not change the fundamental character of the

suit. It is trite law that all amendments are to be liberally

allowed relegating the parties to substantiate their claim even

in respect of proposed amendment. Thought this Court would

find some laxness on the part of plaintiffs in not seeking

amendment before commencement of trial but, however, to

advance justice, a reasonable opportunity needs to be given to

plaintiffs.

7. In a partition suit, valuable property rights are

involved. If a property is a joint family ancestral property, it

goes without saying that the members of a joint family have a

pre-existing right and therefore, the Court drawing a

preliminary decree merely declares the pre-existing right. It is

in this background, this Court is not inclined to adopt a hyper

technical approach and decline the plaintiffs in proving their

case by incorporating the proposed amendment. Mere

allowing the amendment application in itself would not amount

to granting the relief sought in the proposed amendment. The

burden still remains on the plaintiffs to establish the claim

made in the proposed amendment.

8. This Court is also of the view that no serious

prejudice will be caused to the respondents/defendants if the

proposed amendment is allowed. The material on record

would also indicate that it is only when a counter claim was

filed by defendant No.4, the Court had to frame additional

issues and therefore, the plaintiffs have sought to amend this

plaint seeking leave to incorporate the proposed para 5(a). As

against this proposed amendment, it is always open for the

respondents/defendants to file additional written statement.

It is always open for the respondents/defendants to lead

rebuttal evidence insofar as proposed amendment is

concerned. Therefore, I am of the view that the order under

challenge is not at all sustainable.

9. Accordingly, I pass the following:

ORDER

(i) The writ petition is allowed;

(ii) The impugned order dated 28.11.2018 passed on I.A.No.13 in O.S.No.32/2015 is set aside and consequently, the application is allowed;

(iii) The petitioners/plaintiffs are permitted to amend the plaint.

(iv) The respondents/defendants are reserved with liberty to file additional written statement, if they chose to do so.

Sd/-

JUDGE

CA