Allowed

Smt. Shubhavathi S Shetty v. Smt. Heera N Shetty

Karnataka HC18 Jun 2024WP/48389/2017

Case brief

AI extract

What is this about?

In a partition suit, the defendant sought to amend its written statement after trial commenced, deleting item No.4 from a paragraph describing granted lands, calling it a typographical error contradicting its own earlier admission. The High Court set aside the Trial Court's dismissal, holding no prejudice or change in the suit's nature would result, and allowed the amendment application.

What did the court decide?

Order dated 23.10.2017 in I.A.No.38 in O.S.No.41/2011 set aside; I.A.No.38 allowing amendment of written statement allowed; respondent to file amended written statement.

Smt. Shubhavathi S Shetty Vs Smt. Heera N Shetty — Partition | Karnataka HC (2024)

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NC: 2024:KHC:21611 WP No. 48389 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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WRIT PETITION NO. 48389 OF 2017 (GM-CPC)

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BETWEEN:

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SMT. SHUBHAVATHI S.SHETTY W/O LATE K.P.SHAMA SHETTY AGED ABOUT 83 YEARS, RESIDING AT SIDDESHWARA ESTATE SUGUDAWANI

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CHICKMAGALUR TK & DT-577 101

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SMT.LATHA K. SHETTY W/O LATE DR. KARUNAKARA SHETTY D/O LATE K.P.SHAMA SHETTY AGED ABOUT 62 YEARS, RESIDING AT 82/2A GANTIGANAHALLI, YELAHANKA BANGALORE NORTH -560 064

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…PETITIONERS

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(BY SRI. N.KHETTY, ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SMT. HEERA N.SHETTY W/O DR. NARESH SHETTY AGED ABOUT 60 YEARS, D/O LATE K.P.SHAMA SHETTY RESIDING AT NO.3233, 7^TH CR. 13^TH MAIN, HAL II STAGE, INDIRA NAGAR BANGALORE-560 038

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APPUSWAMY S/O PUTTASWAMY AGED ABOUT 56 YEARS, COFFEE GROWER AND TIMBER MERCHANT RESIDING AT BILLESWARA ESTATE KANKANAMANE POST,

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NC: 2024:KHC:21611 WP No. 48389 of 2017

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GALIGUDDE CHICKMAGALUR TK & DT

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…RESPONDENTS

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(BY SMT.H.C.LOKESHWARI, ADVOCATE FOR SRI.A.RAVISHANKAR, ADVOCATE FOR R1 SRI.R.VIJAYAKUMAR, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED: 23.10.2017 PASSED ON IA NO.38 OF 2017 IN O.S.NO.41/2011 ON THE FILE OF LEARNED SENIOR CIVIL JUDGE, CHICKMAGALUR PRODUCED AS ANNEXURE-A.

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

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ORDER

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The present writ petition is filed aggrieved by the order passed in I.A.No.38 in O.S.No.41/2011 dated 23.10.2017 by the II Additional Senior Civil Judge & JMFC, Chikkamagaluru, whereby the Trial Court had dismissed I.A.No.38 filed by the petitioner/defendant under Order 6 Rule 17 read with Section 151 of C.P.C with cost of an amount of Rs.2,000/- to be payable to the plaintiff.

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The petitioner herein is the defendant in the suit and

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the respondent herein has filed the suit seeking the following reliefs:

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"i) For partition by metes and bounds and separate possession of Plaintiff's i/3^rd undivided interest in the schedule properties;

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ii) To declare that the Will dtd. 2-7-2002 is not at all binding on the legitimate right of the Plaintiff and in respect of her 1/3^rd undivided share in the schedule properties;

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iii) For an enquiry into mesne profits as contemplated under Order 20 Rule 18 of C.P.C.

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iv) For a permanent injunction restraining the Defendants 1 and 3, their men, agents or any body claiming through them from removing/transporting the tree growth and or committing acts of waste of damage to the immovable properties in items 1 to 9 detailed in the schedule hereunder.

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v) For court costs and such other relief's as this Hon'ble Court deems fit to grant under the circumstances of the case in the interest of equity and justice.”

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It is the specific case of the plaintiff as averred in the plaint that "even though some grants are in favour of the first defendant, she also did not possess the same separately as she did not have any income of her own. Late Sri.K.P.Shama Shetty acquired item Nos.1, 3, 4, 6, 7 and 10 of the schedule property in his name. Item Nos. 2 and 5 of the schedule property in the name of defendant No.1, item Nos.8 and 9 in the name of plaintiff and second defendant respectively. Then the defendant had filed his written statement, wherein at para No.4 of the

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written statement, it is stated that " it is true that late

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K.P.Shama Shetty has acquired item Nos.1, 3, 4, 6, 7 and 10 of the plaint schedule properties in his name and other allegations are denied as false and incorrect. There are some certain grants of lands in the name of this defendant i.e., item Nos.2 and 5 in the name of this defendant and item Nos.8 and 9 are granted to the plaintiff and second defendant. "

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When it comes to para No.17 of the written statement, it is mentioned as " the plaint schedule item Nos.2 and 5 are the granted lands of defendant No.1. " In that, by way of insertion, between 2 and 5, No.4 is also mentioned. Now, the present application came to be filed whereby this particular No.4 was inserted in the written statement and the petitioner/defendant seeks permission of the Court to delete the same by amending the written statement. According to him, it is a purely typographical mistake. When compared with the correct numbers stated in para No.4 of the written statement, the correction is necessary to set the pleading in order. It is stated that the typographical error has come to light while discussing the case on 20.10.2017 with the counsel with regard to the advance preparation for final arguments of the

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case. As such, they have filed this application. Then the Trial Court had dismissed the same by way of the impugned order, wherein the Trial Court had observed that both the parties have adduced the oral evidence and produced the respective documents based on their pleadings and their respective witnesses were subjected to cross-examination. Under these circumstances, if the application is allowed, it will change the nature of the suit. Whether item Nos.2, 4 and 5 of the suit schedule property are granted lands of first defendant or not and whether item Nos.2, 4 and 5 are granted lands of defendant No.2 or not was within the knowledge of first defendant prior to filing of the written statement. But the first defendant has not raised proposed amendment either before framing of the issues or at least before commencement of the trial. Hence, the Trial Court came to the conclusion that if such application is allowed, it would cause prejudice to the plaintiff and he cannot be permitted to amend the written statement at this stage and accordingly dismissed the petition by imposing cost of Rs.2,000/- on the plaintiff.

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Learned counsel appearing for the petitioner/defendant

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submits that at para No.4 of the plaint, the plaintiff has stated

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about this item No.4 of the suit schedule property and while filing the written statement, the defendant has accepted such a plea. In the plaint, the plaintiff had stated that the self acquired properties of late K.P.Sham Shetty are item Nos.1, 3, 4, 6, 7 and 10 and the defendant in the written statement had agreed that item no.4 of the schedule property is the self acquired property of Late K.P.Sham Shetty and by inserting this item No.4 in para No.17 of the written statement runs contrary to the pleadings in para No.4, which is a typographical mistake and when the defendant himself is accepting that item No.4 is the acquired property of Late K.P.Sham Shetty. Now, even if such amendment is allowed by permitting the defendant to delete item No.4 which is stated in para No.17 of the written statement, it would not cause any prejudice to the plaintiff.

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Learned counsel appearing for the petitioner/defendant further submits that in fact, if such plea is taken by the defendant and when the same is the case of the plaintiff, no further adjudication requires to be done on that aspect and further, the Trial Court ought not to have dismissed I.A.No.38 filed by the petitioner/defendant.

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Learned counsel appearing for the plaintiff/respondent submits that when the trial has commenced long back, at this point of time, the defendant cannot be permitted to amend the written statement. It is submitted that in the I.A. filed in support of the application, it is stated that it is a typographical mistake and they came to know about it while they were discussing about the case with the counsel. Learned counsel submits while considering the amendment of the written statement, unless and until the Court comes to the conclusion that in spite of due diligence, such an amendment cannot be made before the commencement of the trial, the Court cannot allow such an application. It is submitted that the Trial Court had rightly dismissed the application. Learned counsel further submits that in fact, the issues are framed and evidence is let in, in that regard. Now, by virtue of this amendment, everything cannot be reversed.

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On the last occasion, when the matter came up before this Court, this Court had directed the counsels to place before this Court what are the issues that are framed by the Trial

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Court. Learned counsel for the petitioner has placed before this

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Court the issues that are framed by the Trial Court as following:

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"ISSUES:

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1. Whether the plaintiff proves that the suit schedule properties are the Hindu undivided joint family properties consisting of herself and defendant Nos.1 and 2?

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2. Whether the plaintiff proves that after the registered partition deed dt:30.9.1966 her father Shamashetty has continued to be the kartha of the joint family consisting of herself and defendants 1 and 2?

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3. Whether the plaintiff proves that the defendant Nos.1 and 2 are trying to sell the valuable trees standing in the suit schedule properties to 3^rd defendant without her permission?

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4. Whether the defendants prove that T.A.Shamshetty has bequeathed his self acquired properties in favour of 1^st defendant through a Will dt:2.7.2002?

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5. Whether the plaintiff is entitled for 1/3^rd share in the suit schedule properties?

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6. Whether the plaintiff is entitled for the relief of declaration as prayed in the plaint?

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7. Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?

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8. Whether the plaintiff is entitled for an enquiry into mesne profits u/o 20 rule 18 of CPC?

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9. What order or decree?"

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The Trial Court had not framed any such issue with regard to that item No.4 is not a self acquired property but it is a grant in favour of the defendants. The dispute being the fact that item No.4 is not self acquired property but it is a granted property, there would have been an issue. This Court has also perused the chief affidavit filed by the plaintiff and while going through all these material, it appears that item No.4 is the self acquired property of Late K.P.Sham Shetty, which is the case of defendant as well as the plaintiff. But for the reason that item No.4 was added as grant of the defendant in the written statement at one of the paragraphs, now the defendant has come up with this application seeking amendment of the pleadings.

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Learned counsel for the respondent/plaintiff had relied on the judgment of the Hon'ble Apex Court in the case of Vidyabai and Others Vs. Padmalatha and Another¹ and in

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1 (2009) 2 SCC 409

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the case of Basavaraj Vs. Indira and Others² . Basing on these judgments, learned counsel for the respondent submits that due diligence is a factor which has to be considered by the Court. Unless and until the same is established by the defendant, the Court cannot exercise the jurisdiction and allow the application for amendment of the plaint and a party cannot be permitted to introduce a different and new case by way of the amendment as it would cause prejudice to the plaintiff. It is submitted that by virtue of this amendment, seeking relief to delete the said averment in the written statement would cause irreparable loss and hardship to the plaintiff and it cannot be termed as a typographical mistake and further at a belated stage, this application was filed and the same cannot be permitted to be amended and the writ petition is liable to be dismissed.

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Having heard the learned counsel on either side, perused the material on record. The present application is filed under Order VI Rule 17 of C.P.C. seeking amendment of written statement. It is the settled law that after the commencement of

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2 Civil Appeal No.2886/2012 (SCI)

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dated 29.02.2024

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the trial, unless and until the Court is satisfied that in spite of due diligence, the particular aspect could not be brought to the notice of the Court and the same could not be amended at an earlier point of time, the amendment of pleadings cannot be allowed. The whole purport of amendment to Order VI Rule 17 of C.P.C. is that the parties shall not be permitted to drag on the proceedings or they cannot be permitted to introduce a new case by way of these amendments. Now, there is no dispute that in this case, the trial has already commenced and this particular typographical mistake should have been amended at an earliest point of time and in the affidavit it is stated that this particular aspect was only noticed recently while they were discussing the case for final arguments with the counsel.

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As far as the delay aspect is concerned, while looking

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at the application this court has to look at the substantial justice and not more on the technicalities and the Court shall always balance the interest of both the parties. Now, it is the specific case of the plaintiff that item No.4 is the self acquired property of late K.P.Sham Shetty. The same thing has been admitted by the defendant in para No.4. However, at para No.17, it appears that it is stated as the granted property to

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the defendant. By virtue of this amendment, when the defendant himself is agreeing the case of the plaintiff, this Court is not able to understand what is the prejudice caused to the plaintiff. That apart, this Court has perused the issues that are framed by the Trial Court. In that, nowhere it is the issue that item No.4 of the suit schedule property is a grant in favour of the defendant and it is not a self acquired property of late K.P.Sham Shetty. If the present application is allowed and item No.4 that is inserted in para No.17 of the written statement is deleted, no prejudice will be caused to the plaintiff. This Court is of the view that the application needs to be allowed as it would not change the nature of the suit. Now the trial is already commenced before the Trial Court. In view of that matter, this Court is passing the following:

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ORDER

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