Karnataka High Court
Sri Gurumurthy vs Sri Mahadevaswamy on 29 February, 2024
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WP No. 47758 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 47758 OF 2018 (GM-CPC)
BETWEEN:
SRI. GURUMURTHY
S/O LATE LINGARAJU,
AGED ABOUT 46 YEARS,
R/AT YANDHAHALLI VILLAGE,
VARUNA HOBLI, MYSURU TALUK-570010
...PETITIONER
(BY SRI. NANJUNDA SWAMY N., ADVOCATE)
AND:
1. SRI. MAHADEVASWAMY
S/O CHIKKAMADAPPA
AGED ABOUT 26 YEARS,
2. SRI. BASAVANNA
S/O CHIKKAMADAPPA
AGED ABOUT 23 YEARS,
RESPONDENT NO.1 AND 2 ARE
Digitally
signed by BS R/AT YANDHAHALLI VILLAGE
RAVIKUMAR VARUNA HOBLI, MYSURU TALUK-570010.
Location: ...RESPONDENTS
HIGH
COURT OF
KARNATAKA (BY SRI. SANGAMESH R.B., ADVOCATE FOR RESPONDENT NOS.1
AND 2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE/QUASH
THE ORDER DATED 04.09.2018 PASSED ON INTERIM APPLICATION,
FILED UNDER ORDER VI RULES 17 OF CPC IN O.S.NO.751/2016 BY
THE IV ADDL. SENIOR CIVIL JDUGE AND JMFC, MYSURU, AS PER
ANNEXURE-E AND DISMISS THE SAID APPLICATION AT ANNEXURE-
C.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 47758 of 2018
ORDER
The defendant No.5 in O.S.No.751/2016 on the file of the
IV Additional Senior Civil Judge and JMFC, Mysuru (henceforth
referred to as 'Trial Court') has filed this writ petition
challenging the correctness of the order dated 04.09.2018, by
which an application filed by the plaintiffs under Order VI Rule
17 of CPC was allowed.
2. The suit in O.S.No.751/2016 was filed for partition
and separate possession of plaintiffs share in the suit schedule
properties. The plaintiffs claimed that the suit schedule
properties were ancestral properties of the family and stood in
the joint names of their father and brothers and that they were
not subject to partition. They also claimed that there was no
partition amongst them. They claimed that though they
requested the defendant No.9 several times to partition the suit
properties, he delayed it on one or the other ground. They
alleged that the defendants were trying to alienate the suit
properties without their consent. Further, they alleged that
when they insisted to partition the properties, the defendants
claimed that they would not partition the suit properties and
denied the right of the plaintiffs in the suit properties. They
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alleged that a panchayath was held on 10.08.2016, where the
defendants refused to partition the suit properties. Therefore,
they sought for the partition and separate possession of their
shares in the suit properties.
3. The suit was contested by the defendant No.5 on
various grounds. Before issues could be framed in the suit, an
application was filed by plaintiff No.2 under Order VI Rule 17 of
CPC to amend the plaint and delete the earlier claim of the
plaintiffs that the suit properties were ancestral properties and
to plead that the suit properties were ancestral properties,
which stood in the name of defendant No.5 and that a
preliminary decree was passed in O.S.No.551/2007 in terms of
which, the plaintiffs and defendant No.9 were entitled to an
equal share. He also tried to insert an additional pleading that
the suit properties were not divided between the plaintiffs and
defendant No.9 and that the defendant No.9 in collusion with
other defendants was trying to encumber the suit properties
without the notice of the plaintiffs. It was also sought to insert
that based on the preliminary decree passed in
O.S.No.551/2007, FDP No.30/2011 was filed and that the
defendants in collusion tried to deprive the claim of the
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plaintiffs by entering into a compromise, which did not bind
their interest and that they were entitled to their respective
shares as per the preliminary decree passed in
O.S.No.551/2007. He also sought for an additional prayer to
declare the compromise recorded in FDP No.30/2011 as not
binding upon them. He also sought to insert an additional
property.
4. This application was resisted by defendant No.5,
who claimed that the plaintiffs attempted to change the nature
of the suit by claiming additional reliefs. He contended that
allowing such an application would result in introducing a new
case and new cause of action.
5. Based on these contentions, the Trial Court
considered the application and in terms of the impugned order,
allowed it as the amendment did not change the nature of the
suit and was filed before the trial could commence.
6. Being aggrieved by the said order, the defendant
No.5 has filed this writ petition.
7. The learned counsel for defendant No.5 submitted
that amendment in pleading cannot be permitted as a matter of
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course, but it should be relevant for the purpose of adjudication
of the dispute in controversy. He also submits that if a person
seeking amendment is not diligent, no indulgence can be
shown. He relied upon the judgment of the Hon'ble Apex Court
in Ram Niranjan Kajaria vs. Sheo Prakash Kajaria and
others [(2015) 10 SCC 203] and contended that the Trial
Court did not verify whether the amendment sought for, is
necessary for the proper and effective adjudication of the suit
and whether it was bonafide or refusing to grant such an
amendment would lead to any injustice or multiple litigations.
8. The learned counsel for the plaintiffs on the other
hand contended that the amendment became necessary in view
of the written statement filed by defendant No.5, where he
referred to the preliminary decree passed in O.S.No.551/2007
as well as compromise in FDP No.30/2011 to which they were
not a party. He therefore, contended that this amendment was
necessary for the effective adjudication of the case. He
submits that when the plaintiffs were not parties to the
compromise, no notice or knowledge could be attributed to
them and therefore, when the suit was filed, they were
oblivious of the developments in FDP No.30/2011. Thus, he
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contends that the Trial Court was right in allowing the
application.
9. I have considered the submissions made by the
learned counsel for defendant No.5 as well as the learned
counsel for the plaintiffs.
10. A perusal of the plaint as initially filed would go to
show that the plaintiffs claimed that the suit properties were
ancestral in nature and were possessed by the plaintiffs and
defendants. They claimed that the suit properties were never
partitioned. By way of amendment, plaintiff No.2 desired to
plead that the suit properties were joint family ancestral
properties, which were never partitioned. He also tried to claim
that a suit for partition was filed in O.S.No.551/2007, where a
preliminary decree of partition was passed declaring that the
plaintiffs and defendant No.9 were entitled to an equal share
and also that the parties had unconscionably entered into a
compromise to which the plaintiffs were not a party and
therefore, such decree was not binding upon them. He further
claimed that the plaintiffs and defendant No.9 were entitled to
a share in the suit properties.
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11. It is evident from the written statement filed by
defendant No.5 that he referred to the filing of the suit in
O.S.No.551/2007 and compromise in FDP No.30/2011, which
possibly could be the cause of action for the plaintiff No.2 to
seek amendment of the plaint. In that view of the matter, it
cannot be said that the plaintiffs were aware of the compromise
decree entered in FDP No.30/2011, which resulted in the
diminution of their shares in the suit properties. The Trial
Court has rightly allowed the application as it was a pretrial
amendment even before issues were framed. The defendants
would not be prejudiced by the amendment, sought for by the
plaintiffs but are entitled to file their additional written
statement, if any and contest the suit on merits. There is no
error committed by the Trial Court warranting interference by
this Court.
Hence, this writ petition is dismissed.
Sd/-
JUDGE
PMR
