Allowed

Sri. Shivanna v. Sri. Sannaputtappa

Karnataka HC11 Nov 2021WP/42421/2015

Case brief

AI extract

What is this about?

The High Court quashed the trial court order rejecting a plaintiff's application to amend his plaint in a partition suit. The Court directed the trial court to allow the amendment to include details of additional properties and expedite the trial within two years, subject to deposit of Rs. 20,000 as costs.

What did the court decide?

Impugned order dated 05.08.2015 quashed; interlocutory amendment application allowed; suit to be amended; trial to be expedited within two years; costs of Rs. 20,000 payable.

Sri. Shivanna Vs Sri. Sannaputtappa — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF NOVEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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WRIT PETITION NO.42421 OF 2015 (GM-CPC)

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BETWEEN:

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SRI. SHIVANNA S/O SRI RAMANNA, AGED ABOUT 42 YEARS, R/AT BYRAMANGALA VILLAGE, RAMANAGARAM TALUK, RAMANAGARAM DISTRICT-571511.

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...PETITIONER

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(BY SRI. P.S.RANGANATHAN, ADVOCATE)

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AND:

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SRI. SANNAPUTTAPPA SINCE DEAD BY HIS LRS ALREADY ON RECORD

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SRI KRISHNAPPA S/O SRI SANNAPUTTAPPA SINCE DEAD BY HIS LRS

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2a. SMT.VIJAYAMA W/O LATE SRI KRISHNAPPA AGED ABOUT 68 YEARS,

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2b. SRI CHENNAPPA S/O LATE SRI KRISHNAPPA, AGED ABOUT 46 YEARS,

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2c. SRI SHIVANNA S/O LATE SRI KRISHNAPPA, AGED ABOUT 44 YEARS,

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2d. SRI RAVIKUMAR S/O LATE SRI KRISHNAPPA, AGED ABOUT 42 YEARS,

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2e. SRI MANJUNATH S/O LATE SRI KRISHNAPPA, AGED ABOUT 40 YEARS,

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2f. SMT. VINODHA D/O LATE SRI KRISHNAPPA, AGED ABOUT 38 YEARS,

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SRI VEERAIAH S/O SRI SANNAPUTTAPPA, AGED ABOUT 57 YEARS,

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RESPONDENT 2(a) TO (f) AND 3 ARE RESIDING AT BINNAMANGALA VILLAGE KASABA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562110.

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SRI RAJANNA - DELETED

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SRI. G.N. BASAPPA S/O SRI KOLATI NINGAPPA, AGED ABOUT 68 YEARS, R/AT NO.28, WARD NO.100, 1^ST CROSS, 1^ST MAIN, ASHWATHNAGAR, BENGALURU-560 094.

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SRI THIMMADI SUDHAKAR REDDY S/O SRI RAGHUNATH REDDY, AGED ABOUT 62 YEARS, R/AT THIMMADIVARIPALLI, NERABYLU VILLAGE, Y.V. PALYAM MANDAL, CHITTOR DISTRICT ANDHRA PRADESH-111120.

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SRI MUNIYAPPA S/O SRI SONNAPPA, AGED ABOUT 68 YEARS, R/AT YELIYURU VILLAGE, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562110.

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SRI. T. NAGARAJ S/O LATE SRI THIMMAPPA, AGED ABOUT YEARS, R/AT KONNAMANGALA VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562110.

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SMT. THERESAMMA W/O LATE SRI YOGAPPA, AGED ABOUT YEARS,

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SRI MARISWAMY S/O LATE SRI YOGAPPA, AGED ABOUT YEARS,

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SRI CHOURAPPA, S/O LATE SRI YOGAPPA, AGED ABOUT YEARS,

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SRI JOSEPH S/O LATE SRI YOGAPPA, AGED ABOUT 42 YEARS, RESPONDENTS 9 TO 12 ARE R/AT BINNAMANGALA VILLAGE KASABA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT-562110.

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SRI RAJANNA S/O LATE SRI MUNISHAMAPPA, AGED ABOUT 61 YEARS, R/AT MALIGENAHALLI VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK-562110. ...RESPONDENTS

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(BY SRI. K.SHIVASHANKAR, ADVOCATE FOR RESPONDENT NOs.2(a TO f) AND 3;

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AS PER CAUSE TITLE, RESPONDENT NO.1 DECEASED AND REPRESENTED BY LRs ALREADY ON RECORD;

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RESPONDENT NO.4 IS DELETED AS PER CAUSE TITLE; NOTICE SERVED ON RESPONDENT NO.6;

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SRI. T.K.RAJAGOPALA; ADVOCATE FOR RESPONDENT NO.7; SRI. GANESH KUMAR R., ADVOCATE FOR RESPONDENT NOS.9 TO 19;

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SRI PAPI REDDY G., ADVOCATE FOR RESPONDENT NO.13; VIDE COURT ORDER DATED 14.12.2020 WRIT PETITION STANDS DISMISSED AS AGAINST RESPONDENT NOs.5 AND 8)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 05.08.2015 PASSED BY THE COURT OF THE ADDITIONAL CIVIL JUDGE AND JMFC AT DEVANAHALLI IN O.S.NO.262/2002 VIDE ANNEXURE-A.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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This Writ Petition is filed by the plaintiff in O.S. No.262/2002 on the file of the learned Additional Civil Judge and JMFC., Devanahalli, assailing the Order dated 05.08.2015, by which an application filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short, ‘the CPC’) was rejected with cost of Rs.2,000/-.

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The suit in O.S. No.262/2002 was filed for partition and separate possession of his 1/4^th share in the suit schedule properties. The defendant Nos.1 to 3 contested the suit and claimed that the properties were divided orally and the properties allotted to the father of the plaintiff were described in their written statement.

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During the pendency of the suit, the plaintiff filed a memo to delete portions of item Nos.5, 6, 15 to 17 of the suit schedule properties which was allowed by the Trial Court. Later, the plaintiff filed one more application under Order VI Rule 17 of the CPC to incorporate additional pleadings regarding the portions of the properties that were sold by defendant No.3 in Sy. Nos.26, 28, 31, 33, 35, 41 of Binnamangala village, kasaba hobli, Devanahalli Taluk, to the defendant No.5 and the sale of 15 guntas in Sy.No.33 by defendant No.5 to the defendant No.6 under the sale deed dated 20.01.2006. He proposed to claim that the said sale deeds did not bind him. He proposed to plead that the deceased defendant No.1 had

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sold 32 guntas of land in Sy.No.37 of Kammasandra village, Channarayapattana hobli, Devanahalli Taluk, in favour of the defendant No.7 and the said sale deed was not binding on the plaintiff. The plaintiff also proposed to claim that the various extents of land bearing Sy. Nos.56, 57, 19, 30, 34, 35 and 41 of Binnamangala village were also the joint family properties of the plaintiff and defendant Nos.2 and 3 and the said properties were purchased by the defendant Nos.9 and 10. He claimed that the sale deeds in favour of defendant Nos.9 and 10 did not bind him and that he is entitled for a share in the above properties. He further proposed to plead that the defendant No.3 had sold land bearing Sy.Nos.29, 30, 34, 35 and 41 of Binnamangala village in favour of defendant No.13 and that the said sale deed did not bind his share and claimed that he is entitled for a share in the said properties. He claimed that the legal representatives of defendant No.2 had sold land various extents of land in Sy.Nos.31, 33, 36 and 38 of Binnamangala village in

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favour of defendant No.13 which did not bind his share and that he was entitled for a share therein.

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The Trial Court rejected the application on the ground that the plaintiff had earlier filed a memo to delete item Nos.5, 6, 15 to 17 of the suit schedule properties and that the plaintiff had not shown any diligence in filing the application in time. The Trial Court held that filing of the application was a clear abuse of the process of law and therefore, held that the proposed amendment was not necessary to determine the real question in controversy.

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Being aggrieved by the aforesaid Order, the present Writ Petition is filed.

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The learned counsel for the petitioner/plaintiff submitted that the plaintiff intends to bring on record certain additional facts, namely, portions of the suit schedule properties that were all disposed off by various transactions and the plaintiff attempted to place on record the details of these transactions. He submitted that the plaintiff did not seek for any amendment to change the

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nature of the suit or the cause of action. He further submitted that the amendment sought for was prior to framing of issues and before the evidence was adduced and therefore, the Trial Court ought to have been liberal in considering the application filed for amendment.

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Per contra, the learned counsel for the contesting respondents / defendant Nos.2(a to f) and 3 submitted that the plaintiff was playing truant with the defendants by filing a memo initially for deleting portions of item Nos.5, 6, 15 to 17 of the suit schedule properties and thereafter, attempted to bring on record some of the properties that were already deleted. He, therefore, submitted that the amendment was unnecessary, and an exercise in futility.

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The learned counsel for the plaintiff/petitioner did not dispute the fact that a memo was filed to delete certain portions of item Nos.5, 6, 15 to 17 of the suit schedule properties. The learned counsel contended that suit is now prosecuted against portions of item Nos.5, 6,

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15 to 17 which were left over after deletion. A perusal of the plaint discloses that the suit is indeed against the remaining extent in item Nos.5, 6, 15 to 17 after deleting portions thereof.

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A perusal of the application filed for

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amendment would disclose that the plaintiff intends to bring on record certain additional facts relating to sale transactions effected in respect of the suit schedule properties. No doubt an attempt is now made by the plaintiff to introduce the land bearing Sy. Nos.56 and 57 measuring 36 guntas and 26 guntas respectively situated at Binnamangala village, which were not the subject matter of the suit when it was originally filed, on the ground that the said lands were also the joint family properties of the plaintiff and the defendant Nos.2 and 3 and that the defendant Nos.9 and 10 had purchased the said properties illegally and hence, the sale deeds were not binding on the plaintiff. By this amendment, the defendants are not put to peril in any manner and no

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admission is sought to be withdrawn. These facts are necessary so as to determine the fate of purchasers who have purchased some items of the suit properties. The Trial Court ought to have considered the said application liberally but subject to payment of costs. Since the suit relief is for partition and separate possession of the suit schedule properties and as the amendment application filed by the plaintiff does not change or alter the cause of action or the nature of the suit and since the application is filed prior to framing of issues, the said application deserves to be allowed.

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Hence, this Writ Petition is allowed and the impugned Order dated 05.08.2015 passed by the Trial Court is set aside. The interlocutory application filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure is allowed. The plaintiff shall amend the suit and also incorporate the details of the land bearing Sy. Nos.56 and 57 situated at Binnamangala village, kasaba hobli, Devanahalli Taluk, in the schedule to the plaint. This shall

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however be subject to the plaintiff depositing a sum of Rs.20,000/- (Rupees Twenty Thousand only) as costs payable to the District Legal Services Authority, Bengaluru Rural District. It is made clear that the plaintiff shall not be entitled to file any more application for amendment unless the defendants are in possession of any other property which were acquired by the joint family. Since the suit is filed in the year 2002, the Trial Court is requested to expedite the suit in O.S. No.262/2002 and dispose off the same expeditiously at any rate within a period of two years from the date of receipt of a certified copy of this Order.

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Sd/JUDGE

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sma

Sri. Shivanna v. Sri. Sannaputtappa

Case brief

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Sri. Shivanna v. Sri. Sannaputtappa

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