Allowed

Sri. Ravindra Adyanthaya v. Mrs. Jayanthi Adyanthaya

Karnataka HC2 Jun 2023WP/39852/2016

Case brief

AI extract

What is this about?

The High Court Allowed this Writ Petition, quashing the trial court's rejection of an application to amend pleadings. The Court held that the amendment merely corrected the plaintiff's share claim without changing the suit's nature and the Senior Civil Judge has unlimited pecuniary jurisdiction under the Karnataka Civil Courts Act.

What did the court decide?

The impugned order dated 27.06.2016 rejecting the amendment application is set aside; I.A. No. 13 is allowed.

Sri. Ravindra Adyanthaya Vs Mrs. Jayanthi Adyanthaya — Partition | Karnataka HC (2023)

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1 - WP No. 39852 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JUNE, 2023 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO.39852 OF 2016 (GM-CPC)

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BETWEEN:

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SRI. RAVINDRA ADYANTHAYA, S/O LATE JAGANNATH ADYANTHAYA, AGED ABOUT 51 YEARS, R/ATT E.T.LASRADO VILLA, JAYANAGAR II CROSS, MAROLI, KULSHEKAR POST, MANGALURU - 575 003.

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…PETITIONER

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[BY Ms. THANIMA BEKAL, ADVOCATE FOR SRI. T. HAREESH BHANDARY, ADVOCATE (PH)]

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AND:

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MRS. JAYANTHI ADYANTHAYA W/O LATE T.BABU ADYANTHAYA, AGED ABOUT 74 YEARS, R/AT PADUMANE HOUSE, TALAPADY POST, MANGALURU TALUK - 575 004.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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MR SURENDRA ADYANTHAYA, S/O LATE T.BABU ADYANTHAYA, AGED ABOUT 52 YEARS, R/AT PADUMANE HOUSE, TALAPADY POST, MANGALURU TALUK - 575 004.

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MR. RAMANATHA ADYANTHAYA, S/O LATE T.BABU ADYANTHAYA, AGED ABOUT 49 YEARS, R/AT B-2-14, ROOM NO.6, SECTOR NO.15, VASHI, MUMBAI-400 703.

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MR. RATHNAKARA B. ADYANTHAYA, S/O LATE T.BABU ADYANTHAYA, AGED ABOUT 49 YEARS,

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WP No. 39852 of 2016

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R/AT B-2-14, ROOM NO.6, SECTOR NO.15, VASHI, MUMBAI-400703.

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MRS. MAINAVATHI, D/O LATE NARAYANA ADYANTHAYA, MAJOR, R/AT PADUMANE HOUSE, TALAPADY POST, MANGALURU TALUK- 575 004.

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MR. GOPALAKRISHNA ADYANTHAYA S/O LATE NARAYANA ADYANTHAYA, MAJOR, R/AT PADUMANE HOUSE, TALAPADY POST, MANGALURU TALUK-575 004.

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MRS. KASTHURI, D/O LATE NARAYANA ADYANTHAYA, MAJOR, R/AT PADUMANE HOUSE, TALAPADY POST, MANGALURU TALUK - 575 004.

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MR. RAGHUNATHA ADYANTHAYA, S/O LATE NARAYANA ADYANTHAYA, MAJOR, R/AT PADUMANE HOUSE, TALAPADY POST, MANGALURU TALUK - 575 004.

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MR. B. RAMESH SHETTY, S/O LATE MAHABALA SHETTY, AGED ABOUT 54 YEARS, R/AT "AMMA", CHANDRIKA LAYOUT, KADRI KAMBALA, MANGALURU - 575 003.

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MRS. HARINAKSHI M. RAI, W/O MR.K.MADHUKAR RAI, D/O LATE MAHABALA SHETTY, AGED ABOUT 51 YEARS, R/AT "VAISHNAVI" CHANDRIKA LAYOUT, KADRI KAMBALA, MANGALURU - 575 003.

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MRS. SAVITHA G. SHETTY, W/O MR.GANSHYAM SHETTY, D/O LATE MAHABALA SHETTY, AGED ABOUT 46 YEARS, R/AT J.B.SHETTY COMPOUND BEJAI, MANGALURU - 575 002.

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MR. SANTHOSH KUMAR SHETTY, D/O LATE MAHABALA SHETTY, AGED ABOUT 43 YEARS, R/AT "AMMA", CHANDRIKA LAYOUT, KADRI KAMBALA, MANGALURU - 575 003.

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MRS. SARITHA R. SHETTY, W/O MR. RAJESH SHETTY K., AGED ABOUT 37 YEARS, R/AT D-9, CENTRAL EXCISE QUARTERS, B.T.M. II STAGE, BENGALURU 560 068.

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MRS. SAROJINI SHETTY, W/O LATE DODDAYYA SHETTY, D/O LATE KITTANNA ADYANTHAYA, AGED ABOUT 65 YEARS, R/AT KUTHAR BARKE, POST MANNUR, MANGALURU TALUK - 575 003.

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MRS. VASANTHI ALVA, W/O MR.NARASIMHA ALVA, D/O LATE KITTANNA ADYANATHAYA, AGED ABOUT 63 YEARS, RESIDING AT KURIYA POST, KURUDARAPADAV, KASARAGOD, KERALA - 571 321.

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MR. RAJESH ADYANTHAYA, S/O LATE KITTANNA ADYANTHAYA, AGED ABOUT 62 YEARS, R/AT PADUMANE HOUSE, TALAPADY POST, MANGALURU TALUK - 575 004.

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MR. RAJAJRAMA ADYANTHAYA, S/O LATE KITTANNA ADYANTHAYA, AGED ABOUT 60 YEARS, R/AT PADUMANE HOUSE, TALAPADY POST, MANGALURU TALUK - 575 004.

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MRS. GULABI ADYANTHAYA, W/O LATE JAYARAMA ADYANTHAYA, AGED ABOUT 63 YEARS, R/AT HALEMANE, POST MANGALPADY, KASARAGOD TALUK, KERALA - 671 321.

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MR. M. MANOJ KUMAR, S/O LATE JAYARAM ADYANTHAYA, AGED ABOUT 46 YEARS, R/AT HALEMANE, POST MANGALPADY, KASARAGOD TALUK, KERALA-671 321.

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MR. VASANTHA SHETTY, S/O LATE BANTAPPA SHETTY, MAJOR, R/AT SHEDIKATTA, P.O TALAPADY, MANGALURU TALUK - 575 004.

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MRS. VASANTHI SHETTY, D/O LATE BANTAPPA SHETTY, MAJOR, R/ATT KOMMAGALA HOUSE, KURDAPADAVU, UPPALA, KASARAGOD DISTRICT-671 321.

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MRS. YAMUNA SHETTY, D/O LATE UNNIYAKKA, MAJOR, R/AT PATNA HOUSE, TALAPADY, MANGALURU TALUK-575 004.

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MRS. PADMAVATHI SHETTY, W/O LATE KITTANNA SHETTY, D/O LATE UNNIAYAKKA, MAJOR, R/AT KUCHATHABAIL BADAJE, MANJESHWAR, KASARAGOD DISTRICT-675 321.

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MRS LAXMI SHETTY, W/O LATE RAMA SHETTY, MAJOR, R/AT KAMPRA BAIL, BATHILA POST, KALLADKA, BANTWAL TALUK-575 217.

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MRS KAMALA SHETTY, W/O MR.SHEENA SHETTY, MAJOR, R/AT KODIBAIL UPPALA, KASARAGOD TALUK - 671 321.

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MR. ASHOKA ADYANTHAYA, MAJOR, R/AT AMRITHARSHI GUDDETHOTA, ALAPE, MANGALURU - 575 002.

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MR K PADMANABHA SHETTY, S/O MR.THUKRA SHETTY, AGED ABOUT 61 YEARS, R/AT SHWETHA NIVAS DASODI, MUNNUR VILLAGE & POST, MANGALURU TALUK - 575 004.

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MRS HARINAKSHI B SHETTY, W/O MR.K.BABU SHETTY, AGED ABOUT 53 YEARS, R/AT SHWETA NIVAS, DASODI, MUNNUR VILLAGE & POST, MANGALURU TALUK - 575 004.

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MR M.P. NARAYANAN, S/O MR.T.KANNAN NAIR, AGED ABOUT 55 YARS, R/AT "VAISHAKKAM", KARANDAKAD, KASARAGOD - 575 004.

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MRS. P.C. SHOBHANA, W/O M.P.NARAYANAN, AGED ABOUT 47 YEARS, R/AT "VAISHAKKAM", KARANADAKAD, KASARAGOD - 671 321.

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MR.KUMAR N. BANGERA, S/O MR.NARAYANA MUNDAPPA, AGED ABOUT 50 YEARS, MAHALAKSHMI HOTELS & RESORT, I FLOOR, KUMAR'S INTERNATIONAL BENDOREWLL, MANGALURU -575 002.

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MRS. JYOTHI P. SHETTY, W/O MR.PAVITHRA SHETTY, AGED ABOUT 46 YEARS, R/ATT KARMAR HOUSE, BEJAL POST, MANGALURU TALUK - 575 003.

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MR.KRISHNA KARKERA, S/O MR.BEEMA BELCHADA, AGED ABOUT 67 YEARS, R/ATT KUDRUMANE,TALAPADY, MANGALURU TALUK - 575 004.

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MR.A.SITARAMA RAO, S/O MR.A.V.APPU RAO, AGED ABOUT 48 YEARS, R/ATT NO.1861, SOUTH END 'C' CROSS, EAST END MAIN, 9^TH BLOCK, JAYANAGAR, BENGALURU -560 069.

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M/S. DREAMLAND VENTURES (P) LTD., A PRIVATE LIMITED COMPANY, HAVING ITS REGISTERED OFFICE AT #85/1, 4^TH FLOOR, OPP. PAI RESTAURANT K.H.ROAD, BENGALURU-560 027 & REP. BY ITS DIRECTOR MR.C.SRINIVASA REDDY, S/O LATE CHINNAPPA, AGED ABOUT 49 YEARS.

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MRS.WILMA RAINA PRIYA MENEZES, W/O MR.MAXIM HERALD MENEZES, AGED ABOUT 40 YEARS, R/ATT MOODU DHADDU HOUSE, PERNALA POST, UDUPI TQ-574 116.

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MR.K.KRISHNA SHETTY, S/O MR.K.M.M.SHETTY, AGED ABOUT 79 YEARS, R/ATT NO.23/29, NARAYANA NAGAR, DINDIGAL, TAMILNADU-624 001.

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MRS.SHARMADHA, W/O MR.DR.SUDEEP, AGED ABOUT 37 YEARS, R/ATT NEAR APMC BUILDING, ADI UDUPI POST, UDUPI TQ 576 130.

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MR.C.RAMACHANDRA KAMATH, S/O MR.C.SUBASHCHANDRA KAMATH AGED ABOUT 37 YEARS, R/ATT VENKATESH NIVAS, PALLAM ROAD, KASARAGOD-671 121.

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MR.GOPAL, S/O MR.RAMAPPA KARNAVA, AGED ABOUT 76 YEARS, R/ATT SANA NIVAS, BANDYOD, MANGALPADY VILLAGE & POST, KASARAGOD TALUK - 671 321.

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MR.ABDUL GAFOOR, S/O MR.AHAMAD, AGE ABOUT 50 YEARS, R/ATT AHABEE MANZIL, NEAR OLD MASJID, ADKATHBAIL VILLAGE & POST, KASARAGOD TALUK - 671 321.

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MR.K.T.RAVI SHANKAR, S/O MR.K.P.KRISHNAN, AGED ABOUT 55 YEARS, R/ATT KOTAVALAP KUDLU VILLAGE & POST, KASARAGOD TALUK - 671 321.

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MR.A.A.MOHAMMAD AZARUDDIN, S/O MR.C.ABBAS, AGED ABOUT 27 YEARS, R/ATT SAFA MANZIL, OLD CHOORI, KUDLU VILLAGE & POST, KASARAGOD TALUK- 671 321.

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MR.KUTTI SHETTY, S/O MR.AMMU SHETTY, AGED ABOUT 65 YEARS, R/ATT NISARGA NILAYA, NEAR NEW BUS STAND, TALAPADY VILLAGE & POST, MANGALURU TALUK - 575 004.

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MR.C.RAVI KUMAR KAMATH, S/O MR.C.SUBASHANDRA KAMATH, AGED ABOUT 35 YEARS, R/ATT "VENKATESH NIVAS", PALLAM ROAD, KASARAGOD - 671 321.

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MRS.SHALINI R. ADYANTHAYA, W/O MR.RATHNAKAR B. ADYANTHAYA, AGED ABOUT 44 YEARS, R/ATT PADUMEN HOUSE, TALAPADY POST, MANGALURU TALUK - 575 004.

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MR.MADAPPA ADYANTHAYA, S/O LATE VENKAPPA ADYANTHAYA, MAJOR, R/ATT DEVIKA APARTMENT, I FLOOR, NEAR VEEKAY PARK, KOTEKANI ROAD, MANGALURU - 575 003.

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SMT.VEDAVATHI ADYANTHAYA, D/O LATE THIPPAMMA ADYANTHAYA, MAJOR, R/ATT D.NO.22-2-336/1, SUDHEER NIVAS, AREKERE, MULIHITHLU, MANGALURU - 575 003.

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MRS.MEENA R. BHANDARY, W/O RAVINDRA BHANDARY, D/O LATE SAROJINI SHETTY, MAJOR, R/ATT D.NO.22-2-336, SUDHEER NIVAS, AREKERE, MULIHITHLU, MANGALURU - 575 003.

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MR.NAVEEN SHETTY S/O LATE SAROJINI SHETTY, MAJOR, R/ATT D.NO.22-2-336, SUDHEER NIVAS, AREKERE, MULIHITHLU, MANGALURU - 575 003.

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MR.PRAVEEN SHETTY, S/O LATE SAROJINI SHETTY, MAJOR, R/ATT D.NO.22-2-336, SUDHEER NIVAS, AREKERE, MULIHITHLU, MANGALURU-575 003.

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MRS.SUCHITHRA U. SHETTY, W/O MR.UDAYA SHETTY, D/O LATE SAROJINI SHETTY, MAJOR, R/ATT PERLA HOUSE, VEERANAGAR, KANNUR POST, MANGALURU - 575 004.

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MR.SUREKHA S SHETTY, W/O MR.SANTHOSH B. SHETTY, D/O LATE SAROJINI SHETTY, MAJOR, R/ATT C-108, NEW VAIBHAV COMPLEX, GEETHA NAGAR-3, MIRA BHAYNDER ROAD, MIRA ROAD, THANE-401 107.

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MR.SUDHEER SHETTY, S/O LATE SAROJINI SHETTY, MAJOR, R/ATT D.NO.22-2-336, SUDHEER NIVAS, AREKERE, MULIHITHLU, MANGALURU - 575 003.

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MR.SUNIL SHETTY, S/O LATE SAROJINI SHETTY, MAJOR, R/ATT D.NO.22-2-336, SUDHEER NIVAS, AREKERE, MULIHITHLU, MANGALURU-575 003.

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MR.UMESH ADYANTHAYA, S/O LATE T.THIMMAPPA ADYANTHAYA, R/ATT AMITHA NIVAS, BRINDEL PADAV, SHIBRIKERE POST, TENKA YEDAPADAVU, MANGALURU - 575 002.

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MRS.B.SHEELAVATHI S. ALVA, W/O MR.SHRIDHAR ALVA,

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D/O LATE T.MAHABALA ADYANTHAYA, MAJOR, R/ATT SOORYANSH, DENMEE LAY OUT, YEKKUR MANGALURU - 575 002.

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MR.T.PRABHAKAR M. ADYANTHAYA, D/O LATE T.MAHABALA ADYANTHAYA, MAJOR, D/O AITHAPPA SHETTY, DOOR NO.65, GRAMACHAVADI HOUSE, MUTTA GATE, SIRIYA POST, KUMBLE TALUK, KASARAGOD DISTRICT, KERALA-671 321.

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MRS.SHALINI PAVI, W/O MR.K.S.PAVI, D/O LATE T.MAHABALA ADYANTHAYA, MAJOR, R/ATT SOWPARNIKA, KULSHEKAR CHOWKI, MANGALURU-575 003.

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MRS.VIJAYALAXMI R. SHETTY, W/O LATE RAMACHANDRA SHETTY, D/O LATE T.MAHABALA ADYANTHAYA, MAJOR, C/O C.V. THIMMAYYA, NO.29/1, NEAR GOVT. MIDDLE SCHOOL, 1^ST CROSS, 2^ND MAIN, OSAHALLI VIJAYANAGARA, BENGALURU-560 040.

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NOS.56 TO 60 ARE REP. BY GPA HOLDER NO.61 MR.SOMASHEKAR M. ADYANTHAYA, S/O LATE T.MAHABALA ADYANTHAYA, MAJOR, R/ATT GOWRI BANGERA COMPOUND, NEAR CITY BAKERY, KALPANE, KULSHEKAR POST, MANGALURU-575 003.

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MR.SOMASHEKAR M. ADYANTHAYA, S/O LATE T.MAHABALA ADYANTHAYA, MAJOR, R/ATT GOWRI BANGERA COMPOUND, NEAR CITY BAKERY, KALPANE, KULSHEKAR POST, MANGALURU-575 003.

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MR.SURESH ADYANTHAYA, S/O LATE JAGANNATH ADYANTHAYA, AGED ABOUT 56 YEARS, R/ATT DEVAKI COMPOUND, BEHIND CASCIA HIGH SCHOOL, JEPPU, MANGALURU-575 001.

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MRS.LEELAVATHI, D/O LATE JAGANNATH ADYANTHAYA, AGED ABOUT 53 YEARS, R/ATT DEVAKI COMPOUND, BEHIND CASCIA HIGH SCHOOL, JEPPU, MANGALURU-575 001.

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MR.UMESH ADYANTHAYA, S/O LATE JAGANNATH ADYANTHAYA, AGED ABOUT 50 YEARS, R/ATT DEVAKI COMPOUND, BEHIND CASCIA HIGH SCHOOL JEPPU, MANGALURU-575 001.

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MR.MOHANDAS ADYANTHAYA, S/O LATE JAGANNATH ADYANTHAYA, AGED ABOUT 46 YEARS, R/ATT JAGADEV HOUSE, JEEPINAMUGER, TONDOLIGE, MANGALURU-575 009.

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SMT.USHA JAGANNATH ADYANTHAYA D/O LATE JAGANNATH ADYANTHAYA, AGED ABOUT 43 YEARS, EVE BEAUTY SALOON,GAMADA COMPLEX, MADINA KALIFA, DOHA-QATAR. A.G. 841204.

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SMT.ASHALATHA BHANDARY, D/O LATE JAGANNATH ADYANTHAYA, AGED ABOUT 42 YEARS, R/ATT DOOR NO.26-25-17/A, NEAR NIMMAGADDAVARI CHAULTRY, DURGIVANI STREET, GANDHI NAGAR, VIJAYAWADA-3, ANDRA PRADESH-520 003.

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SMT.PRAMEELA, D/O LATE JAGANNATH ADYANTHAYA, AGED ABOUT 40 YEARS, R/ATT DEVAKI COMPOUND, BEHIND BASCIA HIGH SCHOOL, JEPPUR, MANGALURU- 575 001.

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…RESPONDENTS

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(BY SMT. PUSHPALATHA, ADVOCATE FOR R2 TO R19; V/O DATED 03.02.2020 NOTICE TO R1 TO R46 ARE H/S;

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V/O DATED 03.02.2020 NOTICE TO R47 TO R68 ARE D/W; V/O DATED 06.04.2018; NOTICE TO R47 & R48 ARE D/W)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER ANNEXURE-A DTD.27.6.2016 MADE ON I.A.NO.13 IN O.S.NO.6/2013 BY THE COURT OF III ADDL. SENIOR CIVIL JUDGE, AND CJM., AT MANGALURU. GRANT AN INTERIM ORDER TO STAY ALL FURTHER PROCEEDINGS IN O.S.NO.6/2013 ON THE FILE OF COURT OF III ADDL. SENIOR CIVIL JUDGE AND CJM., AT MANGALURU.

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

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ORDER

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Challenging order dated 27.06.2016 passed by III Additional Senior Civil Judge and CJM, Mangaluru on I.A.no.13 in O.S.no.6/2013, this writ petition is filed.

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Ms. Thanima Bekal, learned counsel appearing for Sri T. Hareesh Bhandary, advocate for petitioner submitted that this writ petition was filed by plaintiff no.18 in O.S.no.6/2013 seeking for relief of partition and separate possession etc. In said suit, I.A.no.13 was filed under Order VI Rule 17 of CPC, for amendment of plaint insofar as share claim by replacing 3/6^th share with 5/6^th share in valuation and prayer paragraphs. It was submitted that in affidavit filed in support of application, it was stated that plaintiffs were seeking relief along with defendants no.20 to 26 and though same was correctly mentioned in other parts of plaint.

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It was submitted that this Court in

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Smt.Thirakavva and Another Vs. Smt.Rathnavva and

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Others (RFA.no.1659/2007 and C/m DD 05.04.2023) had observed that there was no upper limit of jurisdiction of Senior Civil Judge under Section 16 of Karnataka Civil Courts Act, 1964. But, on opposition to said application by other defendants, trial Court erroneously rejected it under impugned order dated 27.06.2016. It was submitted that reason assigned by trial Court for rejection were unsustainable and called for interference and therefore sought for allowing writ petition.

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In this writ petition notices served on all respondents. Respondents no.2 to 19 had entered appearance through counsel. However, said counsel was designated as Senior Counsel. Thereafter, said respondents have not made any alternative arrangement even after being served with notice of this writ petition through their counsel appearing before trial Court. Therefore respondents were treated as served unrepresented and matter was proceeded with.

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Heard learned counsel and perused writ petition

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records.

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From above submission, it is seen that in suit for partition, plaintiffs application for amendment of plaint insofar as shares claimed and consequential re-computation of valuation of reliefs is rejected. While plaintiffs contends that application was for correction of typographical error and amendments to prayers should be liberally construed and rejection of application was wholly unsustainable; trial Court has rejected said application on ground that if proposed amendment is allowed, value of subject matter would be higher than jurisdiction of Court.

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Therefore, short point for consideration would be, whether rejection of plaintiffs application for amendment is sustainable .

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Insofar as amendment of pleadings, Hon'ble Supreme Court in Life Insurance Corporation of India v/s Sanjeev Builders Pvt. Ltd. and Another¹ , has summed up principles as follows:

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“(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as

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12022 SCC OnLine SC 1128

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is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.

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(iii) The prayer for amendment is to be allowed:

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(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

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(ii) to avoid multiplicity of proceedings, provided:

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(a) amendment does not result in injustice to the other side,

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(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

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(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

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(iv) A prayer for amendment is generally required to be allowed unless:

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(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

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(ii) amendment changes nature of the suit,

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(iii) the prayer for amendment is malafide, or

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(iv) by the amendment, the other side loses a valid defence.

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(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

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(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

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(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

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(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

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(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

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(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

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(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment,

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the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)”

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( emphasis supplied )

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Admittedly, amendment sought is with respect to relief claimed i.e. instead of 5/6^th plaintiffs had earlier sought 3/6^th which is sought to be rectified. Same would not change nature of suit or cause of action.

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Moreover only reason assigned for rejection of application that it would increase valuation of relief beyond jurisdiction of Court would be clearly unsustainable, as suit was filed before Court of Senior Civil Judge, which as per Section 16 of Karnataka Civil Courts Act, 1964, is unlimited and same Court would have jurisdiction to try suit even after allowing application for amendment.

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It is also settled law that ouster of jurisdiction of Court upon allowing of amendment of pleading cannot be ground for refusing amendment. [Ref. decisions reported in AIR 1971 Bom. 382; AIR 1959 Raj. 146; AIR 1989 Ker. 28; AIR 1953 Nag. 273].

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In view of above, impugned order would be unsustainable firstly , for reason that amendment sought is regarding share of plaintiffs in prayer column and consequently in valuation; secondly , that amendment would not result in ouster of jurisdiction of Court; and thirdly , question of ouster of jurisdiction cannot be examined at time of consideration of application for amendment. Proper course in such case would be to return plaint if as a result of amendment, there is loss of pecuniary jurisdiction.

¶156

Hence, Writ Petition is allowed; impugned order dated 27.06.2016 passed by III Additional Senior Civil Judge and CJM, Mangaluru, on I.A.no.13 in O.S.no.6/2013 is set aside; I.A.no.13 filed by plaintiffs under Order VI Rule 17 of CPC stands allowed.

¶157

Sd/JUDGE

¶158

Grd*

Sri. Ravindra Adyanthaya v. Mrs. Jayanthi Adyanthaya

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Sri. Ravindra Adyanthaya v. Mrs. Jayanthi Adyanthaya

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