Karnataka High Court
Smt. Mukkattira Beena Mandanna vs Sri. Mukkattira Aiyanna on 23 June, 2023
Bench: Sreenivas Harish Kumar
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NC: 2023:KHC:21808
RP No. 224 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
REVIEW PETITION NO. 224 OF 2023
IN
WRIT PETITION NO.19448/2022 (GM-CPC)
Between:
Smt. Mukkattira Beena Mandanna
D/o. Late Mandanna
Aged about 62 years
R/at Kolathodu Bygodu Village
Hathur Post, Ammathi Nad
South Kodagu-571211.
...Petitioner
(By Sri H.N. Manjunath Prasad, Advocate)
And:
Digitally signed
by C K LATHA 1. Sri Mukkattira Aiyanna
Location: HIGH (Retd. Col.)
COURT OF S/o Late Muthanna
KARNATAKA
Aged about 65 years
R/at Kolathodu Bygodu Village
Hathur Post, Ammathi Nad
South Kodagu-571211.
2. Sri Mukkattira Suresh
S/o. Late Muthanna
Aged about 55 years
R/at Kolathodu Bygodu Village
Hathur Post, Ammathi Nad
South Kodagu-571211.
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RP No. 224 of 2023
3. Sri Mukkattira Thangamma
W/o. Late Muddappa
Aged about 70 years
R/at Kalappa Colony
Behind Cauvery College
Gonikoppal Town
South Kodagu-571216.
4. Sri Mukkattira Uthaiah
S/o. Late Muddappa
Aged about 51 years
R/at Kalappa Colony
Behind Cauvery College
Gonikoppal Town
South Kodagu-571216.
5. Sri Mukkattira Jagadish
S/o. Late Muddappa
Aged about 45 years
R/at Kalappa Colony
Behind Cauvery College
Gonikoppal Town
South Kodagu-571216.
6. Sri Mukkattira Uthappa
S/o. Late Mukkattira Thammaiah
Aged about 45 years
R/at Kolathodu Bygodu Village
Hathur Post, Ammathi Nad
South Kodagu-571211.
7. Sri Mukkattira Appachu
S/o. Late Mukkattira Thammaiah
Aged about 44 years
R/at Kolathodu Bygodu Village
Hathur Post, Ammathi Nad
South Kodagu-571211.
8. Smt. Mukkattira Swathi Thimmaiah
W/o. Late Thammaiah
Aged about 66 years
R/at Kolathodu Bygodu Village
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RP No. 224 of 2023
Hathur Post, Ammathi Nad
South Kodagu-571211.
9. Sri Mukkattira Bheemaiah
S/o. Late Muthanna
Aged about 67 years
R/at No.63, Wheeler's Road,
Extension Cross, C.K.Gardens
Bengaluru-560084.
10. Sri Mukkattira Pemmaiah
S/o. Late Muthanna
Aged about 63 years
R/at Nalvathoklu Village and Post
Ammathi Nad, South kodagu-571211.
11. Sri Mukkattira Aiyappa
S/o. Late Mandanna
Aged about 32 years
R/at Kolathodu Bygodu Village
Hathur Post, Ammathi Nad
South Kodagu-571211.
12. Smt. Biddatanda Anupama
D/o. Late Mandanna
W/o. Sri Ganapathy
Aged about 36 years
R/at Kolathodu Bygodu Village
Hathur Post, Ammathi Nad
South Kodagu-571211.
...Respondents
This Review Petition under Order 47 Rule 1 of the CPC
read with Section 114 of CPC praying to review the order dated
17.03.2023 passed in W.P. No. 19448/2022(GM-CPC) by this
Hon'ble court and grant such other and further reliefs based on
the nature and circumstances of the above case, in the interest
of justice and equity.
This Review Petition, coming on for admission, this day,
the court made the following:
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NC: 2023:KHC:21808
RP No. 224 of 2023
ORDER
This petition is filed seeking review of the order
dated 17.3.2023 passed in W.P.19448/2022.
2. Heard Sri H.N.Manjunath Prasad, learned counsel
for the petitioner. According to Sri Manjunath Prasad, the
error in the order sought to reviewed is wrong application
of ratio laid down in Ashok Kumar Kalra vs Wing Cdr.
Surendra Agnihotri and Others [AIR online 2019 SC
1525]. He submits that according to Ashok Kumar
Kalra, counter claim can be raised at any stage before
commencement of recording of evidence on behalf of the
plaintiff. In the case on hand, by the time the first
respondent applied for amendment to insert the counter
claim, cross-examination of plaintiff was over and even the
evidence of first defendant was recorded. Therefore this
court should not have held that the counter claim could be
allowed as an exceptional circumstance. This is an error
apparent on the face of record according to Sri Manjunath
Prasad.
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RP No. 224 of 2023
3. I have perused the order under review. The trial
court permitted the written statement to be amended for
setting up the counter claim following the judgment of this
court in the case of Smt. Rekha vs Smt. Lalithamma
and Others [W.P.55337/2018]. Noticing the fact that
the suit was for partition and according to the first
respondent one property had been left out in the schedule
of the plaint, the first respondent was allowed to amend
the written statement to set up counter claim. Even
though the plaintiff's cross-examination was over and the
first defendant's evidence had also been recorded by the
time application for amendment was made, counter claim
could still be permitted to be raised, for, the suit is for
partition in which all the properties available for partition
are to be included. If in this background, writ petition was
dismissed, it cannot be said that the principle in Ashok
Kumar Kalra was wrongly applied. I do not think the
ground that Sri Manjunath Prasad has raised can be
considered as an error apparent on the face of record.
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RP No. 224 of 2023
Therefore I do not find good ground to admit the review
petition. Review petition is dismissed.
Sd/-
JUDGE
CKL
