Disposed

Smt Gowramma v. Sri Thippeswamy

Karnataka HC14 Nov 2022WP/4720/2022

Case brief

AI extract

What is this about?

High Court disposed of a petition under Article 227 challenging a civil court order allowing amendment to Writers Statement. Court found due diligence satisfied but directed civil court to decide pending partition suit expeditiously by 31.03.2023.

What did the court decide?

Civil Court was directed to identify the suit as long-pending and dispose of it expeditiously on or before 31.03.2023.

Smt Gowramma Vs Sri Thippeswamy — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF NOVEMBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.4720/2022 (GM-CPC)

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BETWEEN :

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SMT GOWRAMMA W/O LATE RANGANNA AGED ABOUT 58 YEARS OCC: AGRICULTURE R/AT KARERU ROAD OLD TOWN CHALLAKERE 577522 CHITRADURGA DISTRICT.

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... PETITIONER

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(BY SRI. MURALI B S, ADVOCATE)

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AND :

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SRI THIPPESWAMY S/O LATE THIPPAIAH SINCE DECEASED BY HIS LRS I.E RESPONDENTS 1 TO 8

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RUDRAPPA S/O LATE GOVINDAPPA AGED ABOUT 66 YEARS

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SMT. PATEERAMMA W/O LATE RANGANNA AGED ABOUT 62 YEARS OCC : AGRICULTURIST,

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SRI. EERANNA S/O LATE GOVINDAPPA AGED ABOUT 55 YEARS,

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SMT. SANTHAMMA W/O LATE GOVINDAPPA AGED ABOUT 50 YEARS

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SMT. SREENIVAS S/O LATE GOVINDAPPA AGED ABOUT 45 YEARS,

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SRI. THIPPESWAMY S/O LATE GOVINDAPPA AGED ABOUT 42 YEARS,

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SRI.R. THIPPESWAMY S/O SRI. RUDRAPPA AGED ABOUT 36 YEARS

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SRI.R. RAMESH S/O SRI RUDRAPPA AGED ABOUT 34 YEARS

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ALL ARE R/O KAAREYA BEEDHI OLD TOWN, CHALLAKERE- 577 522 CHITRADURGA DISTRICT.

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SRI.A. RAJAKUMAR S/O SRI. ANANTHASHETTY AGED ABOUT 54 YEARS R/A JIRAYI MAHADEVI ROAD, CHALLAKERE TOWN CHALLAKERE 577522 CHITRADURGA DISTRICT.

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SRI. A. VIJAYKUMAR S/O SRI. ANANTHASHETTY AGED ABOUT 54 YEARS OCC BUSINESS, R/A MAHADEVI ROAD,

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CHALLAKERE TOWN CHALLAKERE 577522 CHITRADURGA DISTRICT.

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SRI. RANGANNA

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S/O LATE BORAIAH AND KALAMMA SINCE DECEASED BY HIS LRS I.E RESPONDENTS 11 AND 12

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11 SRI. R. JAGANNATH S/O LATE RANGANNA AGED ABOUT 42 YEARS OCC BUSINESS.

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SMT. R. PADMAVATHI W/O THIPPESWAMY (S/O LATE RANGANNA) AGED ABOUT 44 YEARS

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BOTH RESIDENTS OF GANDHINAGAR 6^TH CROSS, CHALLAKERE TOWN CHALLAKERE 577522 CHITRADURGA DISTRICT.

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... RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 22.12.2021 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, AT CHALLAKERE ON I.A.NO.17 IN O.S.NO.28/2011 VIDE ANNEXURE-F; CONSEQUENTLY, DISMISS THE APPLICATION IN I.A.NO.17, FILED BY THE DEFENDANT NOS.2, 8 AND 9 UNDER ORDER 6 RULE 17 OF CPC, ON THE FILE OF THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC AT CHALLAKERE.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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This petition is by the plaintiff in O.S. No.28/2011 on the file of the Principal Civil Judge and JMFC, Challakere [for short, 'the civil Court' ]. The petitioner has impugned the civil Court's order dated 22.12.2021, and the civil Court by this order has allowed the second, eight and ninth respondents' application [I.A. No.17] under Order VI Rule 17 of the Code of Civil Procedure, 1908 [for short, 'the CPC'].

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2. The petitioner's suit in O.S. No.28/2011 is

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for partition, and the suit is contested by the defendants-respondents who have filed their separate written statements. The first to eighth respondents, who are the second to ninth defendants, have filed common written statement contending inter alia that the petitioner has been given certain valuables at the time of her marriage and later in lieu of a possible share in

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the suit schedule properties and therefore, she would not be entitled to assert any right in the suit schedule properties. These respondents have also justified certain alienations. The civil Court has framed Issues in the light of the rival submissions, and the parties have also completed their evidence. It is at this stage that the aforesaid respondents have filed their application for amending the written statement.

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These respondents in proposing the amendment want to bring on record relationship amongst the parties and their ancestors to substantiate their claim that the suit is bad for non-joinder of parties. The civil Court has allowed this application opining that in a suit for partition, all members of the family must be impleaded lest their rights are affected, and the proposed amendment would therefore be necessary for complete adjudication of the controversy. The civil Court has further opined that permitting these

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respondents to amend the plaint would not absolve them of their obligation in law to establish that the petitioner has failed to implead all the necessary parties, and that the petitioner will not be put to any injury.

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Sri. B S Murali, the learned counsel for the petitioner, submits that the civil Court has not considered the fact that the respondents have not set forth circumstances that would establish due diligence , a condition precedent for allowing an application for amendment after commencement of trial in view of proviso to Order VI Rule 17 of CPC. However, he cannot dispute that these respondents have filed the application for amendment of their written statement contending that they had given instructions in this regard to their previous learned counsel on record and

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they were under the bonafide impression that the learned counsel had included the same in their

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pleadings. It is only after conclusion of evidence, their present learned counsel has informed them that the same is not part of their pleadings. This Court, in view of this explanation, the reasons assigned by the civil Court and the settled law that the connotation of due diligence in proviso to Order VI Rule 17 of CPC is only reasonable diligence, is not persuaded to interfere with the civil Court's order.

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At this stage, Sri B S Murali submits that

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the suit is pending for over nine years and is at the fag end, and therefore, this Court must consider calling upon the civil Court to decide the suit on merits expeditiously so that there is no protraction and avoidance of a final conclusion. This submission merits acceptance, and hence the petition stands disposed of calling upon the civil Court to identify the suit as a long pending matter and take all such measures as may be

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necessary for expeditious disposal. The civil Court shall endeavour to decide the suit on or before 31.03.2023.

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The petition stands disposed of accordingly.

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Sd/JUDGE

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AN/-

Smt Gowramma v. Sri Thippeswamy

Case brief

What is this about?

What did the court decide?

Smt Gowramma v. Sri Thippeswamy

Case brief

What is this about?

What did the court decide?

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