Karnataka High Court
Smt Susheelamma vs Sri Manchegowda on 10 March, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2025:KHC:9922
WP No. 42783 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.42783 OF 2018 (GM-CPC)
BETWEEN:
SMT.SUSHEELAMMA
W/O MANCHEGOWDA
AGED ABOUT 79 YEARS
RESIDING AT
KOMMERAHALLI VILLAGE
KASABA HOBLI
MANDYA TALUK AND DISTRICT
...PETITIONER
(BY SRI.PRASHANTH H S, ADVOCATE)
AND:
1. SRI MANCHEGOWDA
SINCE DEAD BY HIS LEGATEE
A) SMT. BHARATHI
Digitally signed W/O SRI. S MOHAN KUMAR
by ROOPA R U
Location: HIGH
SINCE DEAD BY HER LRS
COURT OF
KARNATAKA
A(1) SRI. M.SHAKTI JEEVAN
S/O LATE SRI.S MOHAN KUMAR
AND LATE SMT.BHARATHI
AGED ABOUT 36 YEARS
R/AT NO.60, 9/A, INDUSTRIAL SUBURB
1ST STAGE, VISHWESHWARAIAH NAGARA
MYSORE CITY - 09
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WP No. 42783 of 2018
2. SRI. M.K.MOHAN KUMAR
S/O SRI.MANCHEGOWDA
AGED ABOUT 52 YEARS
RESIDING AT
KOMMERAHALLI VILLAGE
KASABA HOBLI
MANDYA TALUK AND DISTRICT
PIN CODE - 571401
3. KUM. K.M.MOUNA
D/O SRI. M.K.MOHAN KUMAR
AGED ABOUT 23 YEARS
4. SMT. A R ROOPA
W/O SRI. M K MOHAN KUMAR
AND D/O. SRI. C RAMANNA
AGED ABOUT 44 YEARS
RESPONDENT NOS.3 AND 4
BOTH ARE RESIDING AT
D.NO.1521, MARIGOWDA EXTENSION
OPP TO KALEGOWDA HIGH SCHOOL
MANDYA CITY - 577 004
5. M.K.RUKMINIYAMMA
D/O. SRI. RAMANNA
AGED ABOUT 60 YEARS
R/AT NO.1521, 2ND CROSS
MARIGOWDA EXTN
BEHIND JAIL
MANDYA CITY
PIN CODE - 577 004
6. SRI. C.RAMANNA
S/O LATE SRI.CHIKKAPUTTEGOWDA
AGED ABOUT 69 YEARS
R/AT NO.1521, 2ND CROSS
MARIGOWDA EXTN
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WP No. 42783 of 2018
BEHIND JAIL
MANDYA CITY
PIN CODE - 577 004
7. SMT. K M BHARATHI
W/O SRI. G.V.VENKATESHKUMAR
AGED ABOUT 43 YEARS
R/AT GOPALPURA VILLAGE
KASABA HOBLI
MANDYA TALUK
PIN CODE - 571 401
8. SRI.CHANDRAMOHAN M G
S/O M.M.GOPALKRISHNA
KAVERI NAGAR
MANDYA CITY
PIN CODE - 571 402
9. SRI. KARIPUTTAIAH
S/O DODDAKARIGOWDA
AGED ABOUT 63 YEARS
R/AT KOMMERAHALLI VILLAGE
KASABA HOBLI
MANDYA TALUK AND DISTRICT
PIN CODE - 571 401
...RESPONDENTS
(BY SRI.L.RAJA, ADVOCATE FOR R.3 TO R.6;
SRI.A.S.GIRISH, ADVOCATE FOR R.8;
R.1(A)(I), R.2, R.7 AND R.9 - SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 21.08.2018 PASSED BY THE 5TH ADDL DISTRICT AND
SESSIONS JUDGE, MANDYA IN R.A.NO.26/2017 VIDE ANNEXURE-A
AND CONSEQUENTLY ALLOW I.A.NOS.3 AND 4 AND ETC.
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WP No. 42783 of 2018
THIS PETITION, COMING ON FOR PRELIMINARY HEARING 'B'
GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
ORAL ORDER
The present writ petition is filed by the plaintiff in
O.S.No.19/2008, who is also an appellant in
R.A.No.26/2017, aggrieved by the order dated 21.08.2018
passed in R.A.No.26/2017 rejecting an application filed
under Order 1 Rule 10(2) read with Section 151 of CPC.,
(I.A.No.3) and an application filed under Order 6 Rule 17
read with Section 151 of CPC., (I.A.No.4).
2. By the aforesaid applications, the petitioner
sought to implead respondent Nos.6 to 9 herein as party
defendants and has also sought to include certain
immovable properties as described in the said application -
I.A.No.4.
3. The above suit in O.S.No.19/2008 is filed by
the plaintiff for the relief of partition and separate
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possession against her husband and children, who are
respondent Nos.1 to 5 herein. The written statement was
filed by defendant Nos.3 and 4 specifically contending that
about 7 items of the properties belonging to the joint
family of the plaintiff and defendants were not included in
the suit seeking relief of partition and separate possession
and had also given details of the said 7 items of the
properties at para No.19 of the written statement.
It is also specifically contended that the plaintiff had not
made one Kariputtaiah, who had purchased the property in
Sy. No.162/C and Sy. No.162/A under Exs.P.5 and P.7 as
a party to the suit.
4. The issues amongst others with respect to the
contentions raised by the parties were framed by the
Trial Court. Issue Nos.7 and 8 are with regard to
maintainability of the suit for partial partition and for non-
joinder of necessary parties.
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5. The Trial Court though answered the other
issues in the Affirmative upholding the contentions and
rights of the plaintiff, proceeded to dismiss the suit while
answering issue Nos.7 and 8, by holding that the suit for
partial partition filed by the plaintiff without making
necessary parties was not maintainable. As against this
judgment and decree dated 20.02.2017 of the Trial Court,
the plaintiff preferred an appeal in Regular Appeal
No.26/2017.
6. In order to overcome the aforesaid lacuna of
not including all the properties and also not making
necessary parties to the suit as contended by the
defendants, the plaintiff filed aforesaid applications in
I.A.Nos.3 and 4. The said applications were resisted by
the respondents solely on the ground of delay and
purported deliberate protraction in the matter by the
plaintiff. The First Appellate Court accepting the contention
of the respondents rejected the said applications by the
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impugned order, which has led to filing of the present writ
petition.
7. Learned counsel for the petitioner reiterating
the grounds urged in the memorandum of the writ petition
submits that the First Appellate Court grossly erred in
rejecting the applications merely on the ground that an
amendment cannot be allowed once the Trial has been
commenced without addressing the factual background,
which has led the petitioner to file an application for
amendment and for impleading of necessary parties.
8. Learned counsel for the respondents, on the
other hand, submits that the applications filed are only to
further delay the proceedings and that there has been a
family partition long back and the petitioner by keeping
this matter pending, has caused obstruction in enjoyment
of the properties by the defendants and by subsequent
purchasers are now sought to be brought on record.
Hence, he prays for dismissal of the petition.
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9. It is also submitted that respondent No.6 -
C.Ramanna and respondent No.7 - Smt.K.M.Bharathi are
no more and their legal representatives have not been
brought on record.
10. Heard and perused the records.
11. It is settled law that defect in the plaint in a
suit for partition for non-joinder of necessary parties and
non-inclusion of the other family properties is curable and
in fact, as and when the said aspect of the matter is
brought to the notice of the concerned Court, it is, indeed,
the duty of the Court to direct the parties either to implead
the necessary parties or to include the properties, which
have been left out while filing the suit. Ultimately, what is
required to be seen and achieved is a final settlement of
the claims/dispute in respect of the joint family properties.
of its judgment while answering issue Nos.7 and 8 had,
though taken note of these aspects of the matter, ought to
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have directed the plaintiff to include the said properties
and to implead the parties, who were necessary for
adjudication of the matter. Not having done that, it
proceeded to dismiss the suit on that count, which has
resulted in filing of the appeal.
13. When the plaintiff has sought to cure the said
defect, the First Appellate, without even addressing the
issue germane in the matter, has proceeded to reject the
said applications on the premises that the trial having
already been commenced by the Trial Court. The Trial
Court in the first instance and the First Appellate Court in
the second instance have erred in not being present to the
nature of the suit and the claim being made by the parties
and the settled position of law in this regard. The First
Appellate Court, which is equal to the Court of original
jurisdiction, could not have rejected the said applications
on hyper technical grounds that too in a suit for partition.
The said applications have been filed only in view of
contentions raised by the defendants, who cannot be
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heard to say that the plaintiff is dragging the proceedings.
The First Appellate Court in the considered opinion of the
Court has erred in exercising its jurisdiction by rejecting
the said applications.
14. Accordingly, this Court proceeds to pass the
following;
ORDER
(i) The writ petition is allowed.
(ii) Consequently, I.A.Nos.3 filed under
Order 1 Rule 10(2) of CPC., and
of CPC., are allowed.
(iii) The petitioner is permitted to amend
the plaint.
(iv) Since it is stated that respondent
Nos.6 and 7 are no more, the First
Appellate Court shall permit the
plaintiff to bring the legal
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representatives of the said
respondent Nos.6 and 7 on record.
(v) Since the matter is pending from
2017, the First Appellate Court shall
dispose of the matter expeditiously
after giving sufficient opportunities to
the parties not later than a year from
the date of receipt of certified copy of
this Order.
SD/-
(M.G.S. KAMAL)
JUDGE
NBM
