Allowed

Smt.K. Yamunarao W/O Late Shri.K. Sarvottamrao v. Shri. K. Ananthakrishnarao

Karnataka HC6 Sept 2021WP/133442/2020

Case brief

AI extract

What is this about?

This writ petition challenged the trial court's rejection of an application to amend a plaint seeking partition. The High Court allowed the petition, setting aside the impugned order and directing the amendment, holding that the trial court erred by anticipating the final issue regarding admission and that the amendment was non-prejudicial and clarificatory.

What did the court decide?

The impugned order dated 03.12.2019 was set aside; the application for amendment under Order VI Rule 17 CPC was allowed.

Smt.K. Yamunarao W/O Late Shri.K. Sarvottamrao Vs Shri. K… — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE S.R. KRISHNA KUMAR

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WRIT PETITION NO. 133442/2020(GM-CPC)

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BETWEEN:

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SMT. K. YAMUNARAO W/O LATE SHRI. K. SARVOTTAMRAO AGE ABOUT: 83 YEARS, OCC: HOMEMAKER, R/O: GIRI CHAWL, OPP: KITTLE COLLEGE, DHARWAD-580001.

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SHRI. K. BALASUBRAMANYARAO LATE SRI. K. SARVOTTAMRAO, AGE ABOUT: 56 YEARS, OCC: NIL, R/O: GIRI CHAWL, OPP: KITTLE COLLEGE, DHARWAD-580001.

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SMT.SATYAVATI W/O RADHAKRISHNA ACHARYA AGE ABOUT 65 YEARS, OCC: HOMEMAKER, R/O: KANCHANA GANGA AMBA ROAD, POST: AMBALPADI, UDUPI: 576103.

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SMT.SARASWATI W/O BALAKRISHNA KRISHNAPUR AGE ABOUT: 64 YEARS, OCC: HOMOEMAKER, R/O: NEAR HEAD POST OFFICE, DHARWAD: 580001.

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SMT.SAVITRI W/O RAJAMOHAN BHAT AGE ABOUT: 61 YEARS, OCC: HOMEMAKER, R/O: JAYANAGAR APARTMENT, NEAR KAMAT NURSING HOME, KADRI, MANGALURU-575003,

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PET NO.4 AND 5 REPRESENTED BY THEIR G.P.A. HOLDER, BALAKRISHNA S/O RAMRAO KRISHNAPUR, AGE: 76 YEARS, OCC: RETIRED, R/O: NEAR HEAD POST OFFICE, DHARWAD: 580 001.

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6 . SHRI. K. GURURAJ S/O LATE K. SARVOTTAMRAO AGE ABOUT: 56 YEARS, OCC: PRIVATE SERVICE, R/O: USA, REPRESENTED BY HIS GPA HOLDER, HIS MOTHER I.E. PETITIONER NO.1.

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7 . SMT. BHARATI W/O B.K. NARAYAN AGE ABOUT: 54 YEARS, OCC: HOMEMAKER, R/O: PAWAN APARTMENT, JKAIL ROAD, KARANGALPADY, MANGALURU-575003.

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8 . SMT.SUMATI W/O RAMACHANDRAN AGE: ABOUT: 50 YEARS, OCC: HOMEMAKER, R/O: 20, CROSENTS LAND MARK, OFFICERS COLONY, R.K. PURAM, SECUNDRABAD: 500056,

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PET NO.7 AND 8 REPRESENTED BY THEIR G.P.A. HOLDER BALAKRISHNA, S/O RAMRAO KRISHNAPUR, AGE: 76 YEARS, OCC: RETIRED, R/O: NEAR HEAD POST OFFICE, DHARWAD: 580001.

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... PETITIONERS

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(BY SRI. AAYUSH G. BHAT, ADVOCATE)

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AND:

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1 . SHRI. K. ANANTHAKRISHNARAO S/O LATE SHRI.K. SARVOTTAMRAO, AGE: ABOUT: 59 YEARS, OCC: BUSINESS, R/O: "SARVOTTAM", OPP: JSS COLLEGE, VIDYAGIRI, DHARWAD: 580 004.

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2 . SMT.VINUTHA W/O ANANTKRISHNARAO AGE: ABOUT: 51 YEARS, OCC: HOMEMAKER, R/O: "SARVOTTAM", OPP: JSS COLLEGE, VIDYAGIRI, DHARWAD: 580004.

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3 . SPECIAL LAND ACQUISITION OFFICER K.R.D.C.L., 1ST FLOOR, K.S.F.C. BUILDING, RAYAPUR, DHARWAD- 580005.

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... RESPONDENTS

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(BY R1 AND R2 SERVED; R3- DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DHARWAD IN O.S.NO.471/2014 DATED 03.12.2019 REJECTING THE INTERIM APPLICATION VIDE ANNEXURE-E AS ILLEGAL AND FURTHER BE PLEASED TO ALLOW INTERIM APPLICATION VIDE ANNEXURE-B.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT, MADE THE FOLLOWING:

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ORDER

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This writ petition is directed against the impugned order dated 03.12.2019 passed in O.S. No. 471/2014 by the learned prl. Sr. Civil Judge, Dharwad, whereby the application filed by the petitioners under Order VI Rule 17 CPC for amendment of the plaint was rejected by the trial Court.

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Heard learned counsel for the petitioners and perused the material on record. The respondents No.1 and 2 having been served with notice of this

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petition have chosen to remain unrepresented and have not contested this petition.

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The material on record indicates that the petitioners-plaintiffs instituted the aforesaid suit against the respondents-defendants for partition and separate possession of their alleged share in the suit schedule properties and for other reliefs. The said suit is being contested by defendants No.1 and 2 while defendant No.3-SLAO is arrayed as a formal party and hence notice of this petition is dispensed with as regards respondent No.3. During the course of trial, petitioners-plaintiffs filed the instant application under Order VI Rule 17 CPC seeking amendment of the plaint by incorporating certain additional words as regards their alleged share in the suit schedule properties. The said application having been opposed by the respondents No.1 and 2, the trial Court proceeded to reject the said application by passing the impugned order aggrieved by which the

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petitioners are before this Court by way of the present petition.

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A perusal of the impugned order passed by the

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trial Court will indicate that the trial Court came to the erroneous conclusion that the proposed amendment would nullify an admission said to have been made in the cross examination of PW1 without appreciating that the question with regard to the alleged admission has to be decided only at the time of final disposal of the suit and not at the stage of considering the instant application for amendment of the plaint. Further, the trial Court failed to appreciate that the proposed amendment was merely clarificatory in nature and for the purpose of elaborating and amplifying the existing plaint averments and apart from the fact that the proposed amendment would not in any way change or alter the nature or character of the suit, the same was essential for the purpose of adjudicating the issues in

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controversy between the parties particularly when no prejudice would be caused to the respondents No.1 and 2 who would be entitled to file their additional written statement to the amended plaint. Under these circumstances, I am of the considered opinion that the impugned order passed by the trial Court deserves to be set aside and the amendment application filed by the petitioners deserves to be allowed.

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In the result, I pass the following order.

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ORDER

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i. The petition is allowed.

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ii. The impugned order dated 03.12.2019 passed in O.S. No. 471/2014 by the trial Court is hereby set aside and consequently the application filed by the petitionersplaintiffs under Order VI Rule 17 CPC for amendment of the plaint hereby stands allowed;

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iii. Petitioners are directed to carry out amendment and file amended plaint within

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a period of six weeks from today; liberty is reserved in favour of respondents to file additional written statement to the amended plaint;

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iv. All rival contentions on merits including the contentions in the amended plaint are kept open and no opinion is expressed on the same.

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SD JUDGE

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CLK

Smt.K. Yamunarao W/O Late Shri.K. Sarvottamrao v. Shri. K. Ananthakrishnarao

Case brief

What is this about?

What did the court decide?

Smt.K. Yamunarao W/O Late Shri.K. Sarvottamrao v. Shri. K. Ananthakrishnarao

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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