Allowed

Sri Vasantha Kumar v. M v Mahesh

Karnataka HC6 Jul 2023WP/4525/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by defendants in a partition suit. The court set aside the trial court's order rejecting an amendment application to correct property boundaries in the plaint and decree, noting the trial court erred in applying a hyper-technical approach despite all parties admitting the error.

What did the court decide?

The impugned order rejecting the amendment application is set aside. The application for amendment in the plaint and preliminary decree is allowed to correct the boundary description.

Sri Vasantha Kumar Vs M v Mahesh — Partition | Karnataka HC (2023)

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NC: 2023:KHC:23364 WP No. 4525 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF JULY, 2023

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BEFORE

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THE HON’BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 4525 OF 2022 (GM-CPC)

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BETWEEN:

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SRI VASANTHA KUMAR SINCE DEAD REP BY LEGAL REPRESENTATIVES.

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SMT. NANDINI SARASWATHI AGED ABOUT 52 YEARS W/O RAJASHEKAR D/O LATE VASANTHA KUMAR R/AT D NO 2946 NEW EXTENSION 1ST MAIN ROAD KOLAR - 563101

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Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA

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SMT M V HEMAMALINI AGED ABOUT 48 YEARS W/O RAJENDRA KUMAR ARYA D/O LATE VASANTHA KUMAR R/AT NO.283 27TH BLOCK JEEVAN SURABHI APARTMENTS 10TH B CROSS 1ST PHASE J P NAGAR BANGALORE- 560078

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M V VAISHALI AGED ABOUT 46 YEARS D/O LATE VASANATHA KUMAR R/AT M S RMAN COFFEE WORKS V V ROAD K R NAGAR AT AND POST MYSORE DISTRICT - 571602 MYSORE

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M V RAGHAVENDRA AGED ABOUT 42 YEARS S/OLATE VASANTHA KUMAR R/AT SUFALAN SEEDS CO NO 12, S S TEMPLE ROAD V V PURAM, BENGALURU - 560004

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NC: 2023:KHC:23364 WP No. 4525 of 2022

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M V ESHWARARAJ AGED ABOUT 39 YEARS S/O.LATE VASANTHA KUMAR R/AT SUFALAN SEEDS CO NO 12, S S TEMPLE ROAD V V PURAM, BENGALURU - 560004

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…PETITIONERS

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(BY SRI. A.RAVISHANKAR., ADVOCATE)

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AND:

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M V MAHESH AGED ABOUT 44 YEARS S/O LATE VASANTHA KUMAR R/AT MAHESH NILAYA NARASINGA RAO ROAD BASAVANAHALLI EXTENSION CHIKAMAGALUR CITY - 577101

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ALSO RESIDING AT KANNIKA GARMENTS NO 05 SHARIFF COMPLEX MALLANDHUR ROAD CHIKAMAGALUR CITY - 577101

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…RESPONDENT

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(BY SRI. GIRISH B BALADARE., ADVOCATE)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN O.S. 46/2008 ON THE FILE OF 1ST ADDITIONAL SENIOR CIVIL JUDGE, CHIKAMAGALUR, PERUSE ANNEXURE-A AND QUASH THE ORDER ON IA 18 DATED 01.02.2022 PASSED BY THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, CHIKAMAGALUR AT ANNEXURE-A.

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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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3 - NC: 2023:KHC:23364 WP No. 4525 of 2022

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ORDER

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This petition by the defendants in O.S. No.46/2008 is directed against the impugned order dated 01.02.2022 passed by the I Additional Senior Civil Judge, Chikkamagaluru, whereby the application – I.A. No.18 filed by the petitioners seeking amendment of the plaint, schedule to the plaint and decree was rejected by the Trial Court.

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Heard the learned counsel for the petitioners and respondent.

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The material on record discloses that the respondent – plaintiff instituted the aforesaid suit for partition and separate possession of his alleged share in the suit schedule immovable property and for other reliefs. The said suit was decreed in favour of the respondent – plaintiff against the petitioners – defendants on 03.11.2010 declaring that all the parties would be entitled to their shares in the suit schedule properties. Subsequently, petitioners realized that there was a mistake in the description of the ‘A’ schedule property by interchanging eastern boundary and western boundary in the plaint as well as the consequential decree which required to be amended. Under these circumstances, the

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4 - NC: 2023:KHC:23364 WP No. 4525 of 2022

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petitioners filed instant application and though the same was not opposed by the respondent – plaintiff, who in fact did not appear before the Trial Court, the Trial Court proceeded to pass the impugned order rejecting the application, aggrieved by which the petitioners are before this Court by way of the present petition.

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A perusal of the impugned order will indicate that the Trial Court has adopted a hyper-technical approach in coming to the conclusion that the application cannot be allowed on the ground that no supportive documents are produced by the petitioners to seek amendment without appreciating that all parties were ad idem as regards the incorrect description of the ‘A’ schedule property and all the parties admitted that the same required to be corrected by allowing the application and failure on the part of the Trial Court to appreciate this has resulted in mis-carriage of justice warranting interference by this Court in the present petition.

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In the result, the following –

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ORDER

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i. Petition is hereby allowed.

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5 - NC: 2023:KHC:23364 WP No. 4525 of 2022

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ii. The impugned order dated 01.02.2022 passed in O.S. No.46/2008 on the file of I Additional Senior Civil Judge, Chikkamagaluru, is hereby set aside.

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iii. I.A. No.XVIII filed by the petitioners stands allowed by directing that the plaint in O.S. No.46/2008 be amended in terms of the application – I.A. No.XVIII filed by the petitioner.

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iv. Consequently, the preliminary decree dated 15.11.2010 passed in O.S. No.46/2008 is also directed to be amended by incorporating correct boundaries of ‘A’ schedule property in terms of I.A. No.XVIII.

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Sd/JUDGE

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HNM

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List No.: 1 Sl No.: 70

Sri Vasantha Kumar v. M v Mahesh

Case brief

What is this about?

What did the court decide?

Sri Vasantha Kumar v. M v Mahesh

Case brief

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