Allowed

B C Kiran v. H R Rudramma

Karnataka HC11 Nov 2024WP/18029/2021

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the petitioner challenged the Trial Court's rejection of an amendment application to correct measurement and boundaries in a plaint. The High Court allowed the petition, setting aside the impugned order, finding the pre-trial amendment did not alter the suit's nature or prejudice defendants.

What did the court decide?

The impugned order dated 02.09.2021 is set aside and the application under Order VI Rule 17 of CPC is allowed.

B C Kiran Vs H R Rudramma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:45861 WP No. 18029 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 18029 OF 2021 (GM-CPC)

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BETWEEN:

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B C KIRAN

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S/O LATE CHANDRASHEKHARAPPA AGED ABOUT 37 YEARS OCC AGRICULTURIST AND DRIVER NO.312 2^ND MAIN, R/O T G LAYOUT HITTAMADU, BENGALURU 560 085 …PETITIONERS

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(BY SMT. ARCHANA MURTHY, ADV.)

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AND:

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1. H R RUDRAMMA

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W/O LATE CHANDRASHEKARAPPA AGED ABOUT 49 YEARS OCC HOUSE WIFE

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SIDDESHA S/O LATE CHANDRASHEKARAPPA AGED ABOUT 19 YEARS

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SUMAN S/O LATE CHANDRASHEKARAPPA AGED ABOUT 16 YEARS

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SANJU S/O LATE CHANDRASHEKARAPPA AGED ABOUT 13 YEARS

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RESPONDENT NOS.3 AND 4 ARE MINORS, REP. BY THEIR MOTHER AND NATURAL GUARDIAN RESPONDENT NO.1 H R RUDRAMMA

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2 - NC: 2024:KHC:45861 WP No. 18029 of 2021

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RESPONDENTS NOS.1-4 ARE R/O MUSUNDIHAL VILLAGE CHITRADRUGA TALUK 577 501

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D C KUSUMA W/O SUNIL AGED BOUT 37 YEARS HOUSE WIFE, R/O KUDINEERINAKATTE HOLALKERE TALUK - 577 531

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THE MANAGER CANARA BANK, S J M DENTAL COLLEGE BUILDING, B D ROAD CHITRADURGA - 577 502

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THE MANAGER STATE BANK OF MYSORE B D ROAD, CHITRADURGA 577 502

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THE MANAGER STATE BANK OF INDIA D C R M COMPLEX, R M C ROAD CHITRADURGA 577 502

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THE MANAGER SYNDICATE BANK, 1^ST FLOOR REDDI JANA SANGHA, B D ROAD CHITRADURGA 577 502 …RESPONDENTS

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(BY SRI. JAGAN MOHAN M T., ADV. FOR R1 TO R4; VIDE ORDER DATED 12.07.2022

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NOTICE TO R6 TO R9 IS DISPENSED WITH; VIDE ORDER DATED 24.01.2024, PETITION AGAINST R5 IS DISMISSED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER OF THE PRL. CIVIL JUDGE AND JMFC CHITRADURGA DATED 2.9.2021 ON I.A.NO.6 IN O.S.NO.210/2018 VIDE ANNEXURE-D.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2024:KHC:45861 WP No. 18029 of 2021

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The plaintiff in O.S No.210/2018 on the file of II Addl. Junior Civil Judge, Chitradurga has filed this petition challenging the correctness of an order dated 02.09.2021, by which an application filed by him under Order VI Rule 17 of Code of Civil Procedure (for short 'CPC') was rejected.

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The suit in O.S No.210/2018 was filed for partition and separate possession of the plaintiff's share in the suit property. The suit was contested by the defendants. When the suit was set down for taking steps to defendant No.5, an application was filed by the plaintiff under Order VI Rule 17 of CPC to amend the item No.2 of 'C' Schedule. The Trial Court rejected the application on the ground that allowing the amendment would change the nature of the property itself and that the cause of action also would be changed. Being aggrieved by the said order, the plaintiff is before this Court.

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Learned counsel for the plaintiff contends that what was sought to be amended was the measurement and the boundary on the northern side of the suit property. She contends that this was due to an inadvertent error and

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4 - NC: 2024:KHC:45861 WP No. 18029 of 2021

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therefore the Court ought to have allowed the application more particularly when it was a pre trial amendment. She further contends that the reasoning of the Trial Court is lop-sided as neither the nature of the suit nor cause of action would be changed. She contends that, it was for the plaintiff to prove the existence of the suit property as described in schedule 'C' and therefore did not prejudice the defendants in any manner.

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Learned counsel for the defendant Nos.1 to 4 contended that the plaintiff has now chosen to mention the northern side of schedule 'C' item as site No.4 instead of public park and southern side as remaining property instead of road. He contends that this would change the nature of the property.

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I have considered the plaintiff and learned counsel for defendant Nos.1 to 4.

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The plaintiff gave measurement of item No.2 of schedule C item but contended that the measurement mentioned in the plaint was incorrect and has now given proper measurement. The plaintiff has therefore sought amendment of the measurement and correction of the boundaries on the north and south. This being a pre trial amendment, the Court

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5 - NC: 2024:KHC:45861 WP No. 18029 of 2021

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ought to have allowed the application, more particularly, when it did not change the nature of the suit or the cause of action and did not prejudice the defendants in any manner whatsoever. Nonetheless, since the burden of proving the existence of 'C' schedule item Nos.1 and 2 was upon the plaintiff, the Court should not have rejected the application filed for the amendment. Hence, the writ petition deserves consideration.

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In view of the above, the writ petition is allowed . The impugned order dated 02.09.2021 is set aside. The application filed by the plaintiff under Order VI Rule 17 of CPC is allowed. The plaintiff is permitted to amend the plaint schedule.

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It is open for the defendants to file any additional written statement if they are so advised.

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Sd/(R. NATARAJ) JUDGE

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THM List No.: 1 Sl No.: 38

B C Kiran v. H R Rudramma

Case brief

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B C Kiran v. H R Rudramma

Case brief

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