Allowed

Venugopal Reddy v. Padmamma

Karnataka HC2 Aug 2023WP/1514/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition challenging the rejection of a plaint amendment application. The court held that the trial court was not justified in rejecting the plea to explain the sale of other properties, as it did not alter the suit's nature.

What did the court decide?

The application for amendment under Order VI Rule 17 CPC was allowed; the writ petition was disposed of.

Venugopal Reddy Vs Padmamma — Partition | Karnataka HC (2023)

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NC: 2023:KHC:27067 WP No. 1514 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 1514 OF 2022 (GM-CPC)

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BETWEEN:

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VENUGOPAL REDDY, S/O LATE MUNINAGA REDDY, AGED ABOUT 36 YEARS, R/AT CHOKKANAHALLI, JAKKUR POST, YELAHANKA HOBLI, BANGALORE - 560 064.

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…PETITIONER

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(BY SRI. PRADEEP C YADAV, ADVOCATE)

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AND:

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PADMAMMA,

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Digitally signed by NANDINI B G Location: HIGH COURT OF KARNATAKA

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W/O MUNINAGA REDDY, AGED ABOUT 59 YEARS, R/AT NO.25, 17TH CROSS, BHUVANESHWARI NAGAR, HERBAL - KEMPAPURA, BANGALORE - 560 024.

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RUKMINI,

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D/O LATE MUNINAGA REDDY, AGED ABOUT 48 YEARS, R/AT NO.25, 17TH CROSS, BHUVANESHWARI NAGAR, HERBAL - KEMPAPURA, BANGALORE - 560 024.

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PRABHAKARA REDDY, S/O LATE MUNINAGA REDDY, AGED ABOUT 48 YEARS,

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NC: 2023:KHC:27067 WP No. 1514 of 2022

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R/AT NO.25, 17TH CROSS, BHUVANESHWARI NAGAR, HERBAL - KEMPAPURA, BANGALORE - 560 024.

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JHANSI RANI AKKIRAJU, W/O SIVA PRASAD AKKI RAJU, AGED ABOUT 60 YEARS, R/A NO.608, 'A' BLOCK, SAHAKARNAGAR, BANGALORE - 560 092.

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P. A. SRIRAMARAJU, S/O LATE A.B.RAMARAJU,

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SINCE DEAD REPRESENTED BY HIS LR SMT. JHANSI RANI AKKIRAJU.

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…RESPONDENTS

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(BY SRI. K. VIJAYA KUMAR, ADVOCATE FOR R4; R1, R2, R3 - SERVED AND UNREPRESENTED; R5 - DEAD, VIDE ORDER DATED 11/7/2023)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.8333/2016 AND TO SET ASIDE THE ORDER DATED 04.01.2022 VIDE ANNEXURE-A PASSED BY THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH-53) AND CONSEQUENTLY ALLOW I.A.NO.1/2022 FOR AMENDMENT OF PLAINT FILED BY THE PLAINTIFF AND ETC.,

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

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NC: 2023:KHC:27067 WP No. 1514 of 2022

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ORDER

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The petitioner/plaintiff in O.S.No.8333/2016 is before this Court under Article 227 of the Constitution of India challenging the order dated 4.1.2022 on I.A.1/2021, on the file of Additional City Civil and Sessions Judge, Bengaluru, by which the amendment application filed under Order VI Rule 17 CPC to include additional averments to the plaint is rejected.

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Heard Shri Pradeep C Yadav, learned counsel for the petitioner and Shri K Vijay Kumar, learned counsel for respondent No.4. Perused the writ papers.

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The petitioner/plaintiff filed a suit in

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O.S.No.8333/2016 for partition and separate possession in respect of only one item of suit schedule property. Defendants No.1 to 3 are sisters and brothers of the plaintiff. Defendant No.4 is a purchaser. Defendant No.5 is a subsequent purchaser. It is stated that, initially defendant No.4 was placed exparte. The plaintiff filed his affidavit evidence. Thereafter, defendant No.4 i.e. respondent No.4 herein appeared and filed an application to set aside the order placing him exparte and also filed written statement on 5.11.2019 and on the said date,

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the order placing respondent No.4 exparte was set aside and the written statement filed was taken on record. Subsequently, on 4.1.2021, issues were framed. Thereafter, on 10.8.2021, the petitioner/plaintiff filed an application-I.A.1/2021 under Order VI Rule 17 of CPC to amend the plaint to include additional averments.

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The learned counsel for the petitioner/plaintiff would submit that, defendant No.4 i.e. respondent No.4 herein, had taken a contention that, the suit filed by the plaintiff is not maintainable since it does not include all the properties and out of seven properties, suit for partition is filed in respect of only one item of property. The learned counsel for the petitioner/plaintiff would submit that since six items of the properties were sold prior to the institution of the suit by the plaintiff as well as defendants 1 to 3, those properties are not included in the suit and therefore, to explain the said sale and to include the averments with regard to sale, the application for amendment was filed. He further submits that if the amendment is allowed, no prejudice would be caused to the defendants nor it would change the nature of the suit or cause of action. Thus, he submits that the Trial Court failed to

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appreciate the contention of the plaintiff and has erroneously rejected the amendment application.

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Per contra, Sri Vijay Kumar, learned counsel for respondent No.4, the purchaser of the suit schedule property, would contend that the Trial Court is justified in rejecting the application for amendment. He submits that no suit would be maintainable for partial partition and in the absence of the plaintiff not including other properties, the suit, as such, would not be maintainable. Further, he submits that the Trial Court has specifically framed the issue i.e. as to, 'whether defendant No.4 proves that the suit for partial partition for non-inclusion of the property mentioned in para-6 of her written statement is not maintainable? Further, the learned counsel would submit that, if the amendment is allowed, issue No.5, as stated above, would become redundant and there would be no occasion for the Trial Court to examine the said issue.

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The learned counsel for respondent No.4 submits that, as on the date of filing the suit, there were several properties and defendant No.4 would get a right to claim equitable partition of allotment of suit schedule property to the share of defendants No.1 to 3 in case the partition suit is allowed. It is his further

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submission that defendant No.1 to 3 have colluded with the plaintiff and the present suit for partition is filed. Therefore, he submits that, if the amendment is allowed it would change the nature of the suit and it is a fresh cause of action and that the Trial Court is justified in dismissing the application for amendment.

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Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which would arise for consideration in the facts and circumstances of the case is as under :

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'Whether the Trial Court was right in rejecting the amendment application by the petitioner/plaintiff under Order VI Rule 17 of CPC to include additional averments ?'

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The answer to the above point would be in the negative for the following reasons holding that the trial Court is not justified in rejecting the plaintiff's application for amendment to include the additional averments.

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Admittedly, the suit filed by the petitioner/plaintiff is for partition and separate possession in respect of only one suit schedule property. After filing of PW1's evidence, respondent

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No.4, who is defendant No.4 in the suit, appeared before the trial Court and filed written statement. In the written statement, defendant No.4 specifically contended that, a suit for partition without including all the properties, would not be maintainable and thirdly contended that there were seven items of properties belonging to the joint family and the suit is filed in respect of only one property.

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Based on the said contention, the trial Court framed eight issues and out of 8 issues, issue No.5 is as follows : 'Whether the defendant No.4 proves that the suit for partial partition for non-inclusion of the property mentioned in para-6 of her written statement is not maintainable?'

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The learned counsel for respondent No.4 contended that, if the amendment is allowed it would change the nature of the suit and it would be a new cause of action.

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The said contention cannot be accepted as the plaintiff's application for amendment is not to include those properties to the plaint schedule, but amendment sought by the

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plaintiff is, to explain why other six properties are not included in the plaint.

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The amendment sought by the petitioner/plaintiff reads as follows :

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12a. It is relevant to note that along with the Schedule Property, the Defendant No.1 had also acquired the following properties under the partition deed dated 03.03.2003.

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a) Land in Survey No.97/2, measuring 0.22 1/2 guntas situated at Chokkanahalli village, Yelahanka Hobli, Bangalore North Taluk;

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b) Land in Survey No.45 measuring an extent of 9 acres 38 guntas and land in Survey No.46 measuring an extent of 1 acre 14 1/2 guntas, both situated at Chokkanahalli village, Yelahanka Hobli, Bangalore North Taluk;

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c) Land in Survey No.50, measuring an extent of 1 acre 32 guntas and in Survey No.51 measuring 1 acre 25 guntas, both situated at Thirumenahalli village, Yelahanka Hobli, Bangalore North Taluk;

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d) Land in Survey No.327/4, measuring an extent of 0.26 guntas, situated at Jigani village, Anekal Taluk, Bangalore Rural District;

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e) House property bearing Khaneshumari no. 37/77, situated at Chokkanahalli village, Yelahanka Hobli, Bangalore North Taluk measuring East to West 46 feet and North to South 86 feet.

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12b. Pursuant to filing the suit, the Plaintiff and Defendants 1 to 3 entered into a partition deed dated 04.02.2021 wherein the properties which were subsequently acquired by the joint family in the name of Defendant No.1 were partitioned. The said partition deed dated 04.02.2021 has been registered as Document no. BYP-1-08986-2020-21, Book 1, stored in CD No. BYPD 814, in the office of Sub Registrar, Byatarayanapura, Bangalore. The agricultural land in Survey No.97/2, situated at Chokkanahalli village, Yelahanka Hobli, measuring 0.22 1/2 guntas was also the subject matter of the said partition deed dated 04.02.2021. Under the said partition deed dated 04.02.2021, the aforesaid property was allotted to the share of Defendant No.1.

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12c. The agricultural lands in Survey No.45 measuring an extent of 9 acres 38 guntas and Survey No.46, measuring an extent of 1 acre 14 1/2 guntas, situated at Chokkanahalli village, Yelahanka Hobli, Bangalore North Taluk were subject matter of suit in O.S No.4879/1988 which was filed by one Sri J. Aswatha Rao and J. Subba Rao against Muniswamy Reddy and others before the City Civil Court, Bangalore. The Defendant No.1 was also arrayed as one of the Defendants in the said suit. By virtue of the compromise petition filed in O.S No.4879/1988, the properties in Survey No.45 and 46 of Chokkanahalli village,

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Yelahanka Hobli, Bangalore North Taluk which were previously owned by Defendant No.1 were allotted the share of J. Aswath Rao and J. Subba Rao. In exchange of the aforesaid lands, the Defendant No.1 was allotted the lands in Survey No.42/2 measuring 3 acres, land in Survey No.43/2 measuring 30 guntas and land in Survey No.32/3 measuring 7 acres 10 guntas, collectively measuring 11 acres, situated at Chokkanahalli village, Yelahanka Hobli, Bangalore North Taluk. Subsequent to the acquisition of title over the aforesaid lands, the Plaintiff along with Defendants 1 to 3 sold the said lands in favour of Sri Vipan Kumar Kad by virtue of sale deed dated 08.12.2005, registered as Document No. YAN-1-08689-2005-06, Book I, stored in CD No. YAND154, in the office of Sub Registrar, Yelahanka, Bangalore.

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12d. In respect of land in Survey No.50, measuring an extent of 1 acre 32 guntas and land in Survey No.51 measuring an extent of 1 acre 25 guntas, totally measuring 3 acres 17 guntas, situated at Thirumenahalli village, Yelahanka Hobli, Bangalore North Taluk, the same was converted from agricultural to non agricultural residential use vide Conversion order bearing No. ALN (NAY) SR 226/2007-08 dated 09.01.2009. Pursuant to the conversion, Plaintiff along with Defendants 1 to 3 sold an extent of 33,180 square feet in favour of Sri Sunil Kumar and Smt Lily Kumar vide sale deed dated 24.08.2010, registered as Document No.YAN-1-01779-2010-11, Book I, stored in CD No. YAND338, in the office of Sub Registrar, Yelahanka, Bangalore. The remaining extent of converted land in Survey No.50 and Survey No.51 was partitioned

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between the Plaintiff and Defendants 1 to 3 wherein an extent of 31,036.5 square feet was allotted to the share of Defendant No.2 and an extent of 41,943.75 square feet each was allotted Extension extension of in favour of Plaintiff and Defendant No.3 respectively under the partition deed dated 04.02.2021.

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12e. In respect of agricultural land in Survey No.327/4, measuring an extent of 0.26 guntas, situated at Jigani village, Anekal Taluk, Bangalore Rural District, Plaintiff along with Defendants 1 to 3 sold the said land in favour of Sri Prakash Koliwad, vide sale deed dated 08.06.2005, registered as Document No.ANK-1-04039-2005-06, Book I, stored in CD No. ANKD65, in the office of Sub Registrar, Anekal, Bangalore Rural District.

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12f. In respect of the residential house property bearing Khaneshumari no. 37/77, situated at Chokkanahalli village, Yelahanka Hobli, Bangalore North Taluk measuring East to West 46 feet and North to South 86 feet, the same was allotted in favour of Plaintiff and Defendant No.3 respectively under the registered partition deed dated 04.02.2021.

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12g. It is therefore clear that all the properties of Defendant No.1 which were acquired by her through the partition deed dated 03.03.2003 except the Suit Schedule Property have either been alienated by the Plaintiff and Defendants 1 to 3 jointly or partitioned in the manner stated above and the said properties are not available for partition. It is for this reason, the Plaintiff has not included

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all the properties in the present suit. In addition thereto, the Plaintiff along with Defendants 1 to 3 have alienated the aforesaid properties and thereby received his proportionate share in other properties. However it is only with respect to the Suit Schedule Property, the sale made in favour of Defendant No.4 was not brought to his notice and the same was sold without his consent. Absence of consent of the Plaintiff renders the sale deed dated 27.11.2003 and the subsequent gift deed dated 06.03.2015 null and void in so far as it relates to the share of the Plaintiff over the Schedule Property. Hence the Plaintiff is entitled to seek his proportionate share in the Schedule Property.

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A perusal of the above would indicate that the petitioner/plaintiff has explained why he has not included those properties to the suit schedule for partition. The contention that, if the amendment is allowed, issue No.5 will become redundant has no merit. If the amendment is allowed to include the explanation as to why six properties are not included, still issue No.5 remains for consideration, since those properties are not included in the plaint schedule. In the prayer for amendment, neither a new prayer is added nor a new case is made out, so as to deny amendment.

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For the reasons recorded above, the application-I.A.21 filed under Order VI Rule 17 of CPC is allowed. The

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petitioner/plaintiff is permitted to amend the plaint in terms of the amendment application. It is open for the respondent/plaintiff to file additional written statement taking all pleas available in law.

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With the above observation, the writ petition stands disposed of. The Trial Court shall make an endeavour to dispose of the suit as expeditiously as possible with the cooperation of the parties to the suit.

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Sd/JUDGE

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List No.: 1 Sl No.: 62 CT:STK

Venugopal Reddy v. Padmamma

Case brief

What is this about?

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Venugopal Reddy v. Padmamma

Case brief

What is this about?

What did the court decide?

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