Allowed

Sri Basava Prakash v. Smt Vimala

Karnataka HC7 Jan 2021WP/11696/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition under Article 226, setting aside an order rejecting an amendment application in a partition suit. The Court held that pre-trial amendments warrant leniency, the trial court erred in assessing testament validity without a trial, and potential prejudice could be cured by costs or procedural adjustments.

What did the court decide?

Leave to amend the plaint was granted; impugned order under Order VI Rule 17 CPC set aside; amended plaint to be filed within two weeks; First Respondent restored to status of Fourth Defendant.

Sri Basava Prakash Vs Smt Vimala — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 7^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.11696 OF 2019 (GM-CPC)

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BETWEEN

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SRI BASAVA PRAKASH, S/O.LATE GANGAPPA, AGED ABOUT 68 YEARS, R/AT:VIJAYASHREE NILAYA, DODDABALLAPURA TOWN-561203. (SENIOR CITIZEN NOT CLAIMED)

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...PETITIONER

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(BY SRI. PRAKASH M H, ADVOCATE)

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AND:

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1 . SMT VIMALA W/O.RUDRA SHARMA, AGED ABOUT 80 YEARS, R/AT:NO.6, 6^TH CROSS, IV MAIN ROAD, CHAMARAJPET, BANGALORE-560018.

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2 . SRI G BASAVARAJU S/O.LATE GANGAPPA, AGED ABOUT 90 YEARS, R/AT:VYSYARAPET, DODDABALLAPUR TOWN-561203.

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3 . SRI G CHANDRASHEKAR S/O.LATE GANGAPPA, AGED ABOUT 81 YEARS, R/AT:VYSYARAPET, DODDBALLAPUR TOWN-561203.

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4 . SMT INDIRA W/O.VISHWARADHYA, AGED ABOUT 73 YEARS, R/AT:NO.142, II CROSS, VIJAYANGAR, BENGALURU-560040.

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5 . DR. B PRASHANTH, S/O BASAVARAJU AND PREMA, AGED ABOUT 40 YEARS, R/AT:NO.191, 12^TH BLOCK, 1^ST CROSS, NAGARABHAVI, BENGALURU-560064.

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6 . SMT ROOPA W/O.RAJU, AGED ABOUT 68 YEARS, R/A:4^TH BLOCK, RAJAJINAGAR, BENGALURU-560010. 7 . SMT SUDHA W/O.LATE NAGENDRA, AGED ABOUT 70 YEARS, R/AT:4^TH BLOCK, RAJAJINAGAR, BENGALURU-560010.

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8 . SMT CHENNAMBIKE W/O.G.CAHNDRA SHEKAR, AGED ABOUT 70 YEARS, R/AT:VIJAYASHREE NILAYA, DODDABALLAPUR TOWN-561203.

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9 . SRI AMAR DEEP S/O.G.CHANDRASHEKAR, AGED ABOUT 48 YEARS, R/AT:VIJAYASHREE NILAYA, DODDABALLAPUR TOWN-561203.

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10 . SRI DINESH KUMAR S/O.G.BASAVARAJU, AGED ABOUT 58 YEARS, R/AT:VYSYARAPET, DODDBALLAPUR TOWN-561203.

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11 . SRI VIJAYA KUMAR S/O.G.BASAVARAJU, AGED ABOUT 55 YEARS, R/AT:VYSYARAPET, DODDBALLAPUR TOWN-561203.

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12 . SRI ARUN KUMAR S/O.G.BASAVARAJU, AGED ABOUT 55 YEARS, R/AT:VYSYARAPET, DODDBALLAPUR TOWN-561203.

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13 . SMT JYOTHI S/O.G.BASAVARAJU, AGED ABOUT 75 YEARS, R/AT:VIJAYASHREE NILAYA, DODDBALLAPUR TOWN-561203.

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…RESPONDENTS

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(BY SRI. K S RAMESH, ADVOCATE FOR C/R1;

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SRI. J S HALASHETTI, ADVOCATE FOR R3, R8 & R9; NOTICE TO R6,R7& R13 ARE DISPENSED WITH, V.C.O DATED 17.11.2020;

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R2,R4,R5,R10,R11&R12 ARE SERVED& UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 30.01.2019 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC, AT DODDABALLAPUR IN O.S.NO.206/2009 ON I.A.NO.XXX VIDE ANNEXURE-K AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER AND ETC.

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THIS WRIT PETITION COMING ON FOR FURTHER HEARING THIS DAY THROUGH PHYSICAL HEARING, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner being the plaintiff in a partition suit in O.S.No.206/2009 is invoking the writ jurisdiction of this

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Court for assailing the order dated 30.01.2019 a copy whereof is at Annexure-K whereby the learned Sr. Civil Judge, Doddaballapura having rejected his application in IA No.30 filed under Order VI Rule 17 of CPC, 1908 has

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denied leave to amend the plaint, as sought for.

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After service of notice, respondents having

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entered appearance through their counsel resist the writ

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petition making submission in justification of the impugned order and the grounds on which it has been structured.

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Having heard the learned counsel for the

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parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter because:

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a) admittedly, the suit is for a decree of partition & separate possession; subject application seeking leave to amend the plaint was moved much before the trial had commenced; it is the consistent view of the Apex Court and this Court that the pre-trial amendments need to be treated with leniency and more so when suit is for partition or declaration of title; this aspect having not been duly considered by the learned judge of the Court below in the right perspective, there is an error apparent on the face of the record.

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b) There is a grave error of law in the impugned order inasmuch as, the learned trial judge has without anytrial has formed an opinion that the testament pressed into service by the petitioner through the amendment application, is a concocted one; ordinarily validity of title documents is not examined while treating the prayer for

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amendment of pleadings; whether the testament is valid & effective is a question that needs to be gone into only after the trial and in the hearing of the suit; no circumstances are forthcoming for justifying such a finding/opinion.

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c) The vehement contention of the learned counsel for the respondents that the amendment would change the very nature of the suit is bit difficult to countenance; true it is that any amendment would result in some change to the structure & nature of the suit; question is not whether a change is brought about but whether such change is so enormous as to put the other side to a great prejudice which cannot be assuaged by awarding costs; it is tritely said that there is no prejudice to a litigant that cannot be remedied by awarding costs; even this aspect also has been lost sight of by the learned judge of the Court below.

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d) The vehement contention of the respondents that the amendment if allowed, would result into the introduction of a new cause of action in variance with the one on which suit is founded, again is bit difficult to countenance; even if the same is assumed to be true, the fact that a new cause of action is being roped in, on the basis of an amendment is not a sufficient ground for

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denying leave to amend, as the law after the march now stands; even otherwise, justice of the case requires that the amendment as sought for needs to be favoured subject to payment of costs and stipulation of a condition against the dragging of suit proceedings.

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e) The contention of the first respondent that she has already been transposed as the second plaintiff in the suit and that now allowing the amendment in question would put her to a lot of prejudice can be taken care off by relegating her to the original status as fourth defendant in the suit and thereby whatever little prejudice which otherwise she would have been put to will not happen.

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f) The last contention of the first respondent that already she has deposed before the Court below as PW1 and got marked certain documents and therefore the amendment now sought for cannot be allowed is too feeble a ground for denying relief to the petitioner inasmuch as, in a partition suit where one is this side of the cause title or that side, pales into insignificance; it hardly needs to be mentioned that whatever evidence oral or documentary, that is already lead before the Court by the first respondent herein shall be treated as the evidence lead by

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the fourth defendant as she was before transposition and

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further evidence may also be taken accordingly.

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In the above circumstances, this writ petition succeeds; impugned order is set at naught; petitioner’s subject application having been favoured, leave is accorded for amending the plaint as sought for; petitioner shall file amended plaint within two weeks whereupon within next two weeks, it is open for the respondents to file their Additional Written Statement if any; learned judge of the Court below shall recast the issues based upon the amended pleadings of the parties.

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Petitioner shall pay a cost of Rs.10,000/- (ten thousand) only to the contesting respondents on or before the next date of hearing of the suit or within two weeks, whichever is later, failing which the order now quashed shall revive on its own as phoenix; the costs shall be apportioned only by & between respondent Nos. 1, 3, 8 & 9 equally.

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The first respondent is permitted to go back as fourth defendant in the suit and steps shall be taken by the learned judge of the Court below in that direction.

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The submission of the petitioner that he would not

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seek any more amendment nor shall he seek any unnecessary adjournment in the suit proceedings is placed on record.

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Learned judge of the Court below is requested to try & dispose off the suit within an outer limit of nine months,

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all contentions of the parties having been kept open.

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Sd/JUDGE

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Bsv

Sri Basava Prakash v. Smt Vimala

Case brief

What is this about?

What did the court decide?

Sri Basava Prakash v. Smt Vimala

Case brief

What is this about?

What did the court decide?

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