Allowed

Naveen Rao v. Lakkahamma

Karnataka HC5 Apr 2023WP/2494/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka through the Writ jurisdiction held that the trial court acted within its jurisdiction in allowing a third application for amendment of plaint to correct wrongly mentioned defendant names. The High Court allowed the writ petition and modified the order. The application for amendment was allowed with an increased compensation of Rs. 10,000 for the petitioners as costs, pe

What did the court decide?

The writ petition is allowed; the impugned order is modified to allow I.A. No. 36 with costs of Rs. 10,000 to the petitioners; petitioners permitted to file additional written statement.

Naveen Rao Vs Lakkahamma — Partition | Karnataka HC (2023)

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1 - WP No. 2494 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF APRIL, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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WRIT PETITION NO. 2494 OF 2020 (GM-CPC)

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BETWEEN:

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SRI. NAVEEN RAO SON OF NARAYANA RAO AGED ABOUT 49 YEARS

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SMT. SHOBHA NARAYANA WIFE OF NARAYANA RAO AGED ABOUT 70 YEARS

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PETITIONER NOS. 1 AND 2 ARE R/AT NO.363, 10TH MAIN 1^ST CROSS, SAMPIGE LAYOUT BANGALORE 560 079.

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…PETITIONERS

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Digitally signed by R DEEPA Location: High Court of Karnataka

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(BY SRI. YOGESH V. KOTEMATH, ADVOCATE FOR SRI. RAMESH N J., ADVOCATE)

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AND:

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SMT. LAKKAHAMMA WIFE OF DODDAIAH AGED ABOUT 79 YEARS RESIDING AT SRIPATHIHALLI VILLAGE MAGADI TALUK, RAMANAGARA DISTRICT 562159.

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KEMPARANGAIAH SON OF ALADALIAH SINCE DEAD REPTD., BY HIS LRS.,

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WP No. 2494 of 2020

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2A SRI. ALAIAH SON OF LATE KEMPARANGAIAH AGED ABOUT 86 YEARS RESIDING AT MALUR VILALGE SOLUR HOBLI, MAGADI TALUK 562120.

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2B SRI. B.K. MUDDARANGIAHA SON OF LATE KEMPARANGAIAH AGED ABOUT 84 YELARS R/AT HOSPETE KALONI MAGADI TOWN, MAGADI 562120.

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2C SRI. RANGASWAMY SON OF LATE KEMPARANGAIAH AGED ABOUT 82 YUEARS R/AT CHINNADASIPALYA TAVAREKERE HOBLI, BANGALORE SOUTH TALUK, BANGALORE 561101

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SRI. R.C MUNIRAJU S/O RANGAPPA SINCE DEAD REPTD., BY HIS LRS.

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3A SRI. BARATHESH SON OF LATE R.C. MUNIRAJU AGED ABOUT 59 YEARS

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3B SRI. MAHESH

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SON OF LATE R.C. MUNIRAJU

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AGED ABOUT 56 YEARS

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RESPONDENTS NOS. 3A AND 3B ARE R/AT NO.160, 7^TH CROSS, 3^RD MAIN ROAD, M.S.R. NAGAR BANGALORE 560 054.

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SMT. GAVIAMMA WIFE OF MARAPPA AGED ABOUT 55 YEARS

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WP No. 2494 of 2020

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R/AT LAKKENAHALLI VILLAGE DASANAPURA HOBI, NELAMANGALA TALUK 562123 BENGALORE RURAL DISTRICT.

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SMT. LAKKAMMA WIFE OF GIRIYAPPA AGED ABOUT 48 YEARS RESIDING AT CHENNADASI PALYA TAWREKERE HOBI, BANGALORE SOUTH TALUK, BANGALORE 561101.

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SRI. MUNIRAJU SON OF RANGAPPA AGED ABOUT 50 YEARS R/AT SUBEDHAR PALYA YESHWANTHAPURA BANGALORE 560022.

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SMT. GOWRAMMA WIFE OF LATE LAXMANA AGED ABOUT 64 YEARS R/AT CHENNADASI PALYA TAWAREKER HOBLI, BANGALORE SOUTH TALUK, BANGALORE 561101

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SMT. LAKSHMI WIFE OF HANUMANTHAIAH AGED ABOUT 52 YEARS R/AT HOSHALLI, MAGADI TOWN, KALYA GATE MAGADI TALUK 562159 RAMANAGARA DISTRICT.

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SRI. HOMBALAMMA D/O HANUMANTHAIAH AGED ABOUT 24 YEARS R/AT C/O LAKKAMMA CHENNADASI PALYA TAWAREKERE HOBLI, BANGALORE 561101

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WP No. 2494 of 2020

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SRI. B.G. NATESHACHAR SON OF GOVINDACHAR AGED ABOUT 69 YEARS R/AT NO.78, OPPOSITE TO CANARA BANK COLONY, BANGALORE 560 078

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SRI.L. SOMASHEKAR SON OF LATE LAKSHMANA AGED ABOUT 37 YEARS

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SMT. SOWMYA D/O LATE LAKSHMANA AGED ABOUT 33 YEARS

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RESPONDENT 11 AND 12 ARE R/AT CHENNADASI PALYA TAWREKERE HOBLI, BANGALORE SOUTH TALUK, BANGALORE 561101.

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SRI. E. BALAKRISHNA SON OF ERAYYA AGED ABOUT 64 YEARS R/AT JOOGANAHALLI, 2^ND BLOCK, RAJAJINAGARA BANGALORE 560 010.

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SRI.B.K. SRINIVASA SON OF KOTE RANGAIAH AGED ABOUT 58 YEARS R/AT NO.68, K.H.B. BLOCK, 4^TH MAIN, BASAWESHARANAGARA BANGALORE 560 079.

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THE PRESIDENT SRI. ANJANEYASWAMY TEMPLE COMMITTEE KURUBARAHALLI VILLAGE, TAWAREKERE HOBLI, BANGALORE SOUTH TALUK 561101

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WP No. 2494 of 2020

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A. KANNAPPA MODALIYAR SON OF ARUNACHALA AGED ABOUT 60 YEARS R/AT NO.19, 3^RD MAIN, MAGADI RAOD, BANGALORE 560 023

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…RESPONDENTS

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(BY SRI. M.G. RAVISHA, ADVOCATE FOR R1 SRI. ROOPESHA, ADVOCATE FOR R2 (A TO C) VIDE ORDER DATED 06.02.2020 NOTICE TO R3(A) TO R16 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 25.10.2019 PASSED ON I.A.NO.36 IN O.S.NO.19/2014 BY THE SENIOR CIVIL JUDGE AND JMFC AT MAGADI, ANNEXURE-E WHICH IS ILLEGAL AND UNSUSTAINABLE, AND DISMISS THE SAME.

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

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O R D E R

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The petitioners aggrieved by the order dated

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25.10.2019, passed on I.A.No.36 in O.S.No.19/2014 on the file of the Senior Civil Judge & JMFC, Magadi have filed this writ petition.

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Brief facts leading rise to filing of this petition are as under:

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WP No. 2494 of 2020

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Respondents 1, 2(a) to 2(c) filed a suit in O.S.No.19/2014 against the petitioners and other

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respondents for the relief of partition and separate possession. Petitioners and other respondents filed written statement denying the averments made in the plaint. Respondents 1 and 2 have lead their evidence and

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closed their side. When the case was posted for defendants’ evidence, respondents 1 and 2 filed an application for amendment of plaint. In support of the application, deceased respondent No.2 sworn to an affidavit stating that the suit is filed for the relief of partition and separate possession and the name of defendant No.1 therein i.e., deceased Muniraju R., was wrongly mentioned as Muniraju R. C., and the name of defendant No.5 is Muniraju R. C., but wrongly shown as only Muniraju. Defendants 16 & 17 created sale deeds in collusion with defendants 1 and 2. Hence, it is the case of respondents 1 and 2 that the sale deeds are not binding to their shares. Hence amendment is necessary for the purpose of deciding the matter in issue. The said

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WP No. 2494 of 2020

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application was opposed by the petitioners by filing objections. The trial Court, after hearing the parties, allowed the application filed by respondents 1 and 2, vide order dated 25.10.2019, with cost of Rs.1,000/-. The petitioners aggrieved by the said order, have filed this writ petition.

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Heard learned counsel for petitioners and learned

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counsel for the respondents No.1 and 2(a) to 2(c).

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Learned counsel for the petitioners submits that respondents 1 and 2 are filing application after application for amendment of plaint. He submits that the present application is the third application seeking for amendment of plaint. He submits that the application is filed only with an intention to protract the proceedings. He submits that the proposed amendment changes the nature of the case. He submits that the respondents 1 and 2 did not explain that inspite of due diligence, they were not able to raise the issue before commencement of trial. Hence he submits that the trial Court has committed an error in

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WP No. 2494 of 2020

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allowing the application. Hence on these grounds he prays to allow the writ petition.

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Per contra, learned counsel for the respondents submits that respondents 1 and 2 have shown sufficient cause that inspite of due diligence, they could not raise the amendment prior to commencement of trial. He submits that the trial Court placing reliance on various judgments of the Hon’ble Apex Court and this Court, has rightly passed the impugned order. Hence, he submits that the impugned order passed by the trial Court is just and proper and does not call for any interference. Hence on these grounds, prays to dismiss the writ petition.

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Perused the records and considered the submissions made by learned counsel for the parties.

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It is not in dispute that respondents 1 and 2 filed a suit for partition and separate possession against the petitioners and other respondents. Petitioners filed written statement denying the averments made in the plaint.

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9 - WP No. 2494 of 2020

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Respondents 1 and 2 filed an application for amendment to the plaint. In the affidavit filed in support of the said application, it is specifically stated in the affidavit that the name of defendant No.1 is Muniraju R., and due to oversight or typographical error, his name is wrongly mentioned as Muniraju R. C., and the name of defendant No.5 is Muniraju R. C., but wrongly shown as only Muniraju. Though the defendants 16 and 17 are made as parties, the facts are not pleaded against them. Defendants 16 and 17 created sale deeds in collusion with defendants 1 and 2. The said sale deeds are not binding to their share. The proposed amendment is necessary for the purpose of deciding the matter in dispute. Respondents 1 and 2 have explained that inspite of due diligence, they could not raise the issue prior to commencement of trial. The trial Court placing reliance on the judgment of the Hon’ble Apex Court in the case of RAJESHKUMAR AGARWAL & ORS. VS. K.K.MODI & ORS., reported in Air 2006 SC 1647 and also judgment passed by the Co-ordinate Bench of this Court in the case of

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10 -

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WP No. 2494 of 2020

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RAMACHANDRA SAKHARAM MAHAJAN VS. DAMODAR TRIMBAT

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TANKSALE (D) & ORS., reported in 2008 (1) KCCR 385, allowed the application. If the application for amendment of plaint is allowed, no injustice would be caused to the petitioners. However, the petitioners can be compensated in terms of money. Further, the petitioners will get an opportunity to traverse the proposed amendment by filing additional written statement.

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The trial Court was justified in passing the impugned order. In view of the above discussion, I proceed to pass the following:

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ORDER

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The writ petition is allowed.

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The impugned order is modified. I.A.No.36 filed by respondents 1 and 2 in O.S.No.19/2014 is hereby allowed with cost of Rs.10,000/(Rupees Ten Thousand only) payable to the petitioners by respondents No. 1 and 2, on the next date of hearing before the trial Court.

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11 -

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WP No. 2494 of 2020

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Needless to state that the petitioners are permitted to file additional written statement.

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In view of disposal of the writ petition, pending IAs., if any, do not survive for consideration and are accordingly disposed of.

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SD/JUDGE

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Naveen Rao v. Lakkahamma

Case brief

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Naveen Rao v. Lakkahamma

Case brief

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