Quashed

Udayakumar Shetty v. Seetharama Shetty

Karnataka HC16 Oct 2024WP/22848/2017

Case brief

AI extract

What is this about?

This writ petition sought to quash an order denying leave to amend pleadings in a partition suit. The High Court found the lower court erred not to consider the amendments, which were necessary to offer material particulars, and granted the prayer subject to costs and time limits.

What did the court decide?

Impugned order quashed; application to amend Written Statement allowed subject to payment of costs; suit to be disposed of within one month.

Udayakumar Shetty Vs Seetharama Shetty — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:41678 WP No. 22848 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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WRIT PETITION NO. 22848 OF 2017 (GM-CPC)

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BETWEEN:

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UDAYAKUMAR SHETTY AGED ABOUT 68 YEARS,

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CHANDRAKANATH SHETTY AGED ABOUT 65 YEARS,

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DHANYARAJ @ DHANANJAYA SHETTY AGED ABOUT 63 YEARS,

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KUMUDA SHETTY, AGED ABOUT 50 YEARS,

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PETITIONERS 1 TO 4 ALL CHILDREN OF BUKKA L SHETTY

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Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA

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INDIRA SHETTY, AGED ABOUT 48 YEARS, D/O SEETHARAMA SHETTY

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ALL ARE RESIDING AT BADAGUMANE KIDIYOOR VILLAGE, PO: AMBALAPADY - 576 103. UDUPI DISTRICT.

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N.B.: THE PETITIONERS 1 TO 3 DO NOT CLAIM THE PRIVILEGE OF SENIOR CITIZENSHIP

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…PETITIONERS

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(BY MS. ANANYA RAI., ADVOCATE FOR SRI. VYASA RAO K S.,ADVOCATE)

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2 - NC: 2024:KHC:41678 WP No. 22848 of 2017

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AND:

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SEETHARAMA SHETTY AGED ABOUT 68 YEARS, S/O K SHARADA SHETTY, FILM INDIA COMMUNICATIONS, F-23, PUSHPANJALI, VASWANI MARG NEAR SEVEN BUNGLOW, ANDHERI (WEST), MUMBAI 400 061.

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SADARAMA SHETTY AGED ABOUT 66 YEARS, S/O K SHARADA SHETTY 14/217, 2^ND FLOOR SARDAR NAGAR, NO.4, SAYAN KOLIWADA, MUMBAI 400 037.

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SHANTHARAMA SHETTY AGED ABOUT 64 YEARS, S/O SHARADA SHETTY, H.NO.168, 69^TH CROSS, RAJAJINAGAR, BENGALURU 560 010.

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YASHODA SHETTY, AGED ABOUT 59 YEARS, D/O SHARADA SHETTY

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AKHILA SHETTY, AGED ABOUT 43 YEARS, D/O SHARADA SHETTY,

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JANANANDA @ JAYANANDA SHETTY S/O AKHILA SHETTY AGED ABOUT 19 YEARS,

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RESPONDENTS NO. 4 TO 6 ARE R/O SOWPARNIKA HOUSE, MARAKADA VILLAGE, PO: KUNJATHABAILU, MANGALURU 575 006.

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3 - NC: 2024:KHC:41678 WP No. 22848 of 2017

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DEVAKI SHEDTHI AGED ABOUT 86 YEARS, W/O LATE CHANDRASHEKARA SHETTY 2/72, KHAR NAGAR, BANDRA (EAST) MUMBAI 400 050. SINCE DEAD REP BY LR R8

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SHASHIKANTH SHETTY, AGED ABOUT 45 YEARS, S/O DEVAKI SHEDTHI, 2/72, KHAR NAGAR, BANDRA (EAST) MUMBAI 400 050.

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RATHNA B SHETTY, AGED ABOUT 85 YEARS W/O K BOJARAJA SHETTY, ATHRADY VILLAGE, PO: PARKALA 576 123. UDUPI DISTRICT.

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HARISHCHANDRA SHETTY AGED ABOUT 64 YEARS, S/O RATHNA B SHETTY ATHRADY VILLAGE, C-509, NPVT, RAHEJA ESTATE , BORIVILI EAST MUMBAI 400 066.

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VASUMATHI S SHETTY AGED ABOUT 62 YEARS, W/O S V SHETTY, ATHRADY VILLAGE, PO: PARKALA 576 123. UDUPI DISTRICT.

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RAVIRAJA SHETTY, AGED ABOUT 60 YEARS, S/O RATHNA B SHETTY, 270, ARAVINDRANAGAR, NEAR VIVEKANANDA HIGH SCHOOL, OLD HUBLI 580 024.

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NC: 2024:KHC:41678 WP No. 22848 of 2017

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JEEVARAJA SHETTY, AGED ABOUT 58 YEARS, S/O RATHNA B SHETTY, D-4, VAMAN APARTMENT, 3^RD FLOOR, NEAR CENTRAL WEARHOUSE, MANNAGUDDA, MANGALURU 575 003.

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…RESPONDENTS

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(R1, R2, R4, R5, R6, R9, R11 & R13 SERVED; NOTICE TO R3, R10 & R12 IS D/W V.C.O DATED 7/8/2024; V.C.O DATED 10/2/2021, R8 IS TREATED AS LRS OF R7 AND NOTICE TO R8 IS HELD SUFFICIENT)

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THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORD AND QUASH THE IMPUGNED ORDER ANNEX-A DATED 9.8.2016 PASSED BY THE ADDL. SR. CIVIL JUDGE UDUPI ON I.A.20 IN O.S.64/2002 AND ALLOW I.A.20 AS PRAYED FOR.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT

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ORAL ORDER

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This Petition seeks to call in question the order dated

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09.08.2016 made by the learned Additional Sr. Civil Judge, Udupi, whereby the Application in IA No.20 filed inter alia under Order VI rule 17 r/w Order VII Rule 9 of

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CPC, 1908 in a pending Partition Suit in O.S.No.64/2002 has been negatived.

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5 - NC: 2024:KHC:41678 WP No. 22848 of 2017

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Despite service of notice, the respondents have

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chosen to remain unrepresented and that would not come in the way of this Court treating the case on its intrinsic merits.

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Having heard the learned counsel for the Petitioners and having perused the Petition papers, this Court is inclined to grant indulgence in the matter inasmuch as, suit is one for Partition and separate possession of the subject properties. A particular stand was taken up by the Petitioners in their Written Statement as to ‘B’ Schedule Property. However, material particulars of the said stand somehow were not furnished and therefore, the subject Application had been moved seeking leave of the Court to amend the Written Statement for the purpose of offering the material particulars. Such amendments are generally to be allowed inasmuch as, the same would not result into prejudice to the other side of course, subject to payment of reasonable costs.

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6 - NC: 2024:KHC:41678 WP No. 22848 of 2017

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The version of the Court below that already

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PW1 has been examined is not a ground for denying a just prayer for the leave to amend the pleadings more particularly in partition suit, as has been held by the Apex Court in a catena of decisions. This aspect of the matter has not been property discussed by the learned judge of

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the Court below and that itself constitutes an error apparent on the face of the record. What prejudice would have been caused to the parties if leave was accorded is also not discussed in the right perspective. Merely chanting that the amendment if allowed would cause prejudice to other side is of no avail. The courts have to make all endeavors to settle the dispute completely in a wholesome way so that no party would go home with a heart-burn.

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In the above circumstances, this Writ Petition succeeds and the impugned order is quashed. The subject Application having been favoured, the petitioners are permitted to amend the Written Statement as sought

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7 - NC: 2024:KHC:41678 WP No. 22848 of 2017

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for within two weeks subject to they together paying a sum of Rs.1,000/- to each of the Respondents by way of costs on the next date of hearing of the suit.

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It is open to the Respondents to take up additional or such other pleadings to meet the amendment of the Written Statement within two weeks next following.

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Since the suit is two decade old, the learned trial judge is requested to try & dispose off the same within an outer limit of one month and report compliance to the Registrar General of this Court.

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Registry is directed to send a copy of this Judgement

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to all the Respondents by Speed Post, immediately.

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Sd/(KRISHNA S DIXIT) JUDGE

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Bsv List No.: 1 Sl No.: 21

Udayakumar Shetty v. Seetharama Shetty

Case brief

What is this about?

What did the court decide?

Udayakumar Shetty v. Seetharama Shetty

Case brief

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