Allowed

Smt Sudhamani J v. Smt Nagarathnamma

Karnataka HC10 Dec 2024WP/4553/2024

Case brief

AI extract

What is this about?

Plaintiff in a partition suit challenged rejection of her amendment application under Order VI Rule 17 CPC seeking to plead a joint statement by the father in a prior suit that all four children had equal shares. The High Court held the amendment necessary and allowed it despite delay.

What did the court decide?

Impugned order dated 23.01.2024 set aside; I.A.No.XVI under Order VI Rule 17 CPC allowed; defendants may file additional written statement.

Smt Sudhamani J Vs Smt Nagarathnamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:51020 WP No. 4553 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 4553 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. SUDHAMANI J D/O LATE T. RAMA RA AGED ABOUT 59 YEARS, R/AT NO.17/1, RAGHVENDRA COLONY CHAMARAJPET, BANGALORE-560 070 (BY SRI. RAJASHEKAR S., ADVOCATE)

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…PETITIONER

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. NAGARATHNAMMA W/O LATE T. RAMA RAO, AGED ABOUT 73 YEARS, R/AT NO.49, IN SY.NO.36/1, NEAR KRISHNA TEMPLE, JNANAJYOTHINAGAR, 80 FEET ROAD, MALLATAHALLI, BANGALURU-560 056.

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SRI. VASU B.R. S/O LATE T. RAMA RAO AGED ABOUT 50 YEARS, R/AT ANEKAL BALARAJU, NO.34, 4^TH MAIN, J.P. NAGAR 7^TH PHASE, BENGALURU-560 056.

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SRI. B.R. JAIPRAKASH S/O LATE T. RAMA RAO AGED ABOUT 43 YEARS, RESIDING AT NO.49 IN SY.NO.36/1

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2 - NC: 2024:KHC:51020 WP No. 4553 of 2024

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NEAR KRISHNA TEMPLE, JNANAJYOTHINAGAR 80 FEET ROAD, MALLATAHALLI, BENGALURU-560 056.

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SRI. B.R. SATHISH KUMAR S/O LATE T. RAMA RAO AGED ABOUT 41 YEARS, RESIDING AT NO.49 IN SY.NO.36/1 NEAR KRISHNA TEMPLE, JNANAJYOTHINAGAR 80 FEET ROAD, MALLATAHALLI, BANGALURU-560 056.

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SRI. G. YOGANANDA S/O G. GURUMURTHY AGED ABOUT 44 YEARS, R/AT NO.23/29-1, 4^TH CROSS, KEMPAPURA AGRAHARA, MAGADI ROAD, BENGALURU-560 023.

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SMT. K.R. PRAMEELA W/O. G. YOGANANDA AGED ABOUT 42 YEARS, R/AT NO.23/29-1, 4^TH CROSS, KEMPAPURA AGRAHARA, MAGADI ROAD, BENGALURU-560 023.

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…RESPONDENTS

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(BY SRI. R.K.THONTADHARYA, ADVOCATE FOR AJITH P.B., ADVOCATE FOR RESPONDENT NO.1; SRI. B.J.MAHESH, ADVOCATE FOR RESPONDENT NO.3; NOTICE SERVED ON RESPONDENT NOS.2, 4, 5 AND 6)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 23.01.2024 PASSED BY HON'BLE XLII ADDL. CITY CIVIL AND SESSIONS JUDGE, C/C OF XXIX ADDL. CITY CIVIL AND

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3 - NC: 2024:KHC:51020 WP No. 4553 of 2024

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SESSIONS JUDGE, BENGALURU IN OS NO.6010/2019 ON ORDER VI RULE 17 APPLICATION AT ANNEXURE-N AND ETC.

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

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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.6010/2019 on the file of XLII Additional City Civil and Sessions Judge, Bengaluru (henceforth referred to as 'Trial Court' for short) is before this Court challenging the correctness of an order dated 23.01.2024 by which, an application (I.A.No.XVI) filed by her under Order VI Rule 17 read with Section 151 of Civil Procedure Code was rejected.

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(i) A suit in O.S.No.6010/2019 was filed for partition and separate possession of plaintiff's share in the suit schedule properties. The suit was contested by the defendant No.1 who filed a separate written statement. The defendant Nos.3 and 4 also filed a separate written statement. Likewise, the defendant Nos.5 and 6 also filed a written statement.

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(ii) When the suit was set down for arguments, an application was filed by the plaintiff under Order VI Rule 17 of

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4 - NC: 2024:KHC:51020 WP No. 4553 of 2024

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Civil Procedure Code to amend the plaint to incorporate certain additional facts. The application was contested by the defendant Nos.1, 3, 4, 5 and 6. The Trial Court rejected the application in terms of the impugned order, on the ground that the application was filed at a belated stage and that the amendment sought was not necessary for the purpose of determining the real question in controversy. On the contrary, it held that allowing the amendment would cause prejudice to the defendants. It also noticed that this Court in MFA No.274/2021 had directed it to dispose off the suit within 09 months from the date of receipt of a copy of the said order.

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Being aggrieved by the said order, the plaintiff is before this Court.

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Learned counsel for the plaintiff contended that the defendant Nos.3 and 4 had filed suit in O.S.No.365/2013 where the father of the plaintiff and defendants had specifically stated that all the four children had an equal share in the suit schedule properties. He contends that this was a crucial fact that had to be brought on record, as the defendants were privy to certain admission made in a prior suit, which put to rest all

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5 - NC: 2024:KHC:51020 WP No. 4553 of 2024

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confabulations in the written statement filed by the defendants No.3 and 4. He therefore, contends that though the application was filed belatedly, but this was a necessary fact that had to be brought on record so as to effectively dispose off the suit.

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Per contra, the learned counsel for the defendants submitted that the plaintiff was a party in O.S.No.365/2013, but she did not contest the suit. They therefore, contended that the plaintiff ought to have pleaded this fact when the suit was filed. However, they contended that these facts are sought to be brought on record, when the suit was set down for arguments. Thus, they contended that the application is not bonafide, but is designed to protract the proceedings.

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I have considered the submissions of the learned counsel for the plaintiff as well as the learned counsel for the defendants.

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The learned counsel for the plaintiff did not dispute the fact that the plaintiff was a party in O.S.No.365/2013, all though he contended that the plaintiff was not served in the said suit. The said suit was withdrawn unconditionally. It is the claim of the plaintiff that in the said suit, the father of the

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plaintiff and her brothers who are the defendants in the instant suit, had made a joint statement that all the children had an equal share in the suit properties. If this is a fact, then it was definitely crucial for determining the instant suit. Therefore, the Trial Court committed an error in holding that the amendment sought by the plaintiff was not necessary to decide the suit. However, the fact that the application is filed at a belated stage of the proceedings, is a cause for concern and the plaintiff ought to have filed this application at the earliest point in time.

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Nonetheless, since the plaintiff claimed that she was not served with summons in the suit, it is possible that she was not aware of filing of the suit and consequent proceedings in the said suit. Therefore, it can easily be said that despite exercise of due diligence, the plaintiff could not plead the above facts, when she filed the instant suit for partition. Therefore, the Trial Court committed an error in holding that the application was not bonafide and that the amendment sought was not necessary.

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In that view of the matter, this writ petition allowed . The impugned order dated 23.01.2024 is set aside.

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NC: 2024:KHC:51020 WP No. 4553 of 2024

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The application filed by the petitioner under Order VI Rule 17 of Civil Procedure Code is allowed. The defendants are at liberty to

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file additional written statement.

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Sd/(R. NATARAJ) JUDGE

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List No.: 1 Sl No.: 53

Smt Sudhamani J v. Smt Nagarathnamma

Case brief

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Smt Sudhamani J v. Smt Nagarathnamma

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