Allowed

Ningappa S/O Yamanappa Koppad v. Smt. Shivavva W/O Yamanappa Koppad

Karnataka HC28 Aug 2023WP/100247/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition by a defendant seeking to amend a written statement in a partition suit. The court set aside the lower court's order rejecting the amendment and directed the defendant to pay costs before incorporating the amendment to include omitted ancestral properties, while directing the trial court to expedite the proceedings.

What did the court decide?

The impugned order dismissing the amendment application is set aside; the petitioner is permitted to amend the written statement subject to payment of costs and expedited trial.

Ningappa S/O Yamanappa Koppad Vs Smt. Shivavva W/O Yamanappa… — Partition | Karnataka HC (2023)

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NC: 2023:KHC-D:9546

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WP No. 100247 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 28^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 100247 OF 2023 (GM-CPC)

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BETWEEN:

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NINGAPPA S/O. YAMANAPPA KOPPAD, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: MEDINAPUR, TAL: HUNAGUND, DIST: BAGALKOT-587118.

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…PETITIONER

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(BY SRI S.C. HIREMATH, ADVOCATE)

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AND:

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SMT. SHIVAVVA W/O. YAMANAPPA KOPPAD, AGE: 66 YEARS, OCC: HOUSEHOLD WORK, R/O: MADAPUR, TQ: HUNGUND, DIST: BAGALKOT-587118.

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SMT. RENAVVA W/O. PARASAPPA HULLIKERI, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: MADAPUR, TQ: HUNGUND, DIST: BAGALKOT-587118.

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YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2023.09.12 14:22:53 +0530

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SMT. SHAVANTRAVVA W/O. SHASHIKANT KELUR, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O: MADAPUR, TQ: HUNGUND, DIST: BAGALKOT-587118.

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…RESPONDENTS

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(BY SMT. VEENA HEGDE, ADVOCATE FOR R1; NOTICE TO R2 AND R3 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 15.06.2022 PASSED ON I.A.NO.6 IN O.S.NO.44/2016, ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC AT HUNAGUND DISMISSING THE APPLICATION FOR AMENDMENT, A COPY OF WHICH IS PRODUCED AS PER ANNEXURE-G AND ALLOW THE SAID APPLICATION.

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NC: 2023:KHC-D:9546 WP No. 100247 of 2023

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

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ORDER

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The captioned writ petition is filed by the defendant

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No.2 feeling aggrieved by the order passed by the court below on I.A.No.6 filed under Order 6 Rule 17 of CPC wherein learned Judge has declined to entertain an application filed by defendant No.2 seeking amendment of written statement. The said order is under challenge.

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Respondent No.1/plaintiff who is the mother of

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petitioner herein has instituted a suit for partition and separate possession in O.S.No.44/2016. When the matter was posted for defendants evidence, the present petitioner intends to seek amendment of the written statement to contend that plaintiff has not included all the ancestral properties. The said application is rejected by the learned Judge only on the ground that present petitioner/defendant No.2 intends to drag on the matter and protract the hearing of the suit. Learned Judge also held that due diligence is lacking in the present case on

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3 - NC: 2023:KHC-D:9546 WP No. 100247 of 2023

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hand. The application is rejected also on the ground that proposed amendment will displace the plaintiff’s case and cause serious prejudice to the plaintiff.

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Learned counsel for the respondent

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No.1/plaintiff while countering the documents placed on record by the counsel for the petitioner/defendant No.2 would contend that though properties which are left out are ancestral properties, respondent No.1/plaintiff under bonafide impression that the extent of these lands are since negligible, has not included the properties as indicated in the proposed amendment. If the said statement is taken cognizance of, then I am of the view that suit for partial partition is not maintainable. If there is no serious challenge that family of the petitioner and respondents own additional lands as indicated in the amendment application, it is settled proposition of law that all the properties will have to be brought under one common hotchpotch. If amendment application is allowed, it is likely to cause some inconvenience to respondent

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4 - NC: 2023:KHC-D:9546 WP No. 100247 of 2023

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No.1/plaintiff, but that itself cannot be a ground to permit respondent No.1/plaintiff to proceed with the suit. If permitted, it is respondent No.1/plaintiff who will be seriously prejudiced at the time of deciding the case on merits. The material on record indicates that some properties are left out while instituting the partition suit. A helpless mother who is compelled to knock the door of civil court for partition will further suffer on account of maintainability of the suit for partial partition. Therefore, it is in the interest respondent No.1/plaintiff, I deem it fit to allow the amendment of written statement. This court would concur with the finding of the learned Judge that petitioner/defendant No.2 is guilty of not being diligent. Therefore, cost of Rs.10,000/- needs to be saddled on petitioner/defendant No.2 before permitting him to amend the written statement.

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The finding of the learned Judge that if the

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proposed amendment is allowed that would displace the case of the plaintiff is patently erroneous. In a partition

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suit, law mandates that plaintiff has to include all the properties and cannot selectively seek partition by excluding some of the joint family ancestral properties. Even if the defendants are found to be negligent in bringing to the notice of the court, the court was required to adopt liberal approach to do substantial justice not only to the petitioner/defendant No.2 but also to respondent No.1/plaintiff. With these observations, I pass the following:

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ORDER

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i) The writ petition is allowed.

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ii) The impugned order dated 15.06.2022 passed on I.A.No.6 in O.S.No.44/2016 on the file of the Additional Civil Judge and JMFC, Hunagund is set aside.

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iii) Petitioner/defendant No.2 is permitted to incorporate the proposed amendment in the written statement subject to payment of cost

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of Rs.10,000/- to respondent No.1/plaintiff

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on the next date of hearing.

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iv) Petitioner/defendant No.2 shall cooperate and shall not further protract hearing of the suit.

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v) The learned Judge shall also bear in mind that a mother has filed suit against her son seeking partition. Therefore, learned Judge is also directed to expedite and decide the case, in accordance with law.

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Sd/JUDGE

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List No.: 1 Sl No.: 8

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MBS

Ningappa S/O Yamanappa Koppad v. Smt. Shivavva W/O Yamanappa Koppad

Case brief

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Ningappa S/O Yamanappa Koppad v. Smt. Shivavva W/O Yamanappa Koppad

Case brief

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