Allowed

S.a.Muniyappa v. Smt Muninanjamma

Karnataka HC15 Mar 2024WP/5017/2021

Case brief

AI extract

What is this about?

Plaintiffs in a partition suit sought amendment of the extent and southern boundary of a schedule item via Order VI Rule 17 CPC; the trial court rejected it as belated and introducing a new cause of action. The High Court set aside that order, allowed the amendment on payment of costs, since it did not change the nature of the suit.

What did the court decide?

Impugned rejection order set aside; Order VI Rule 17 amendment application allowed subject to Rs.5,000 costs to respondent Nos.8 and 9; respondents may file additional written statement; no adjournmen

S.a.Muniyappa Vs Smt Muninanjamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:10882 WP No. 5017 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 5017 OF 2021 (GM-CPC)

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BETWEEN:

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S. A. MUNIYAPPA,

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S/O LATE APPAYANNA, AGED ABOUT 62 YEARS, (REPRESENTED BY LR'S)

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1(a) SMT. LAKSHMI DEVAMMA, W/O LATE S. A. MUNIYAPPA, AGED ABOUT 70 YEARS, R/AT SUGUTURU VILLAGE, SUGATURU POST, KOLAR TALUK AND DISTRICT-563 102.

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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1(b) SHRI. S.A. NAGARAJA, S/O S.A. MUNNIYAPPA, AGED ABOUT 56 YEARS, R/AT SUGUTURU VILLAGE, SUGATURU HOBLI KOLAR TALUK AND DISTRICT-563 102.

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1(c) M SOMANNA, S/O LATE S A MUNIYAPPA, R/AT SUGUTURU VILLAGE, SUGATURU POST, KOLAR TALUK AND DISTRICT-563 102.

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1(d) S M RAJESHWARI, D/O S A MUNIYAPPA, W/O RAJAPPA, R/AT THONDALLA VILLAGE, HOLUR HOBLI, KOLAR TALUK, KOLAR-56310.

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…PETITIONERS

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(BY SRI.G. A. SRIKANTE GOWDA, ADVOCATE

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AND:

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SMT MUNINANJAMMA, D/O LATE VENKATESHAPPA, AGED ABOUT 50 YEARS,

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SMT. RADHAMMA, D/O LATE VENKATESHAPPA, AGED ABOUT 50 YEARS,

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SHRI VIJAYAKUMAR, S/O LATE NANJUNDAPPA, AGED ABOUT 45 YEARS, OCC: AGRICULTURE,

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SHRI. SHANKARANARAYANAPPA, S/O LATE NANJUNDAPPA, AGED ABOUT 40 YEARS, OCC: AGRICULTURE,

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SHRI HULAPPA, S/O LATE CHIKKAMUNINANJAPPA, AGED ABOUT 58 YEARS OCC: AGRICULTURE,

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ALL ARE RESIDING AT SUGUTURU VILLAGE, SUGUTRU HOBLI, KOLAR TALUK AND DISTRICT-563 102.

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SHRI MANJUNATHA, S/O LATE CHIKKANANJAMMA @TAILOR NANJAMMA, AGED ABOUT 42 YEARS, OCC: WORKING AS COOK IN GOVT HOSTEL, KENCHARAHALLI, R/AT K.R. EXTENSION, NISALIS HOUSE, CHINTAMANI TALUK CHIKKABALLAPURA - 563 125.

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SMT. PARVATAMMA, D/O LATE BAIRAPPA, AGED ABOUT 57 YEARS, R/AT HONGENHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR - 561 30.

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SHRI NAGEGOWDA, S/O LATE SONAPPA, AGED BOUT 57 YEARS,

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3 - NC: 2024:KHC:10882 WP No. 5017 of 2021

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OCC: AGRICULTURE,

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SHRI MUNIYAMMA, W/O LATE SONAPPA, AGED BOUT 87 YEARS,

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RESPONDENT NOS.8 AND 9 ARE R/AT SUGUTURU VILLAGE, SUGUTRU HOBLI, KOLAR TALUK AND DISTRICT - 563 102.

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…RESPONDENTS

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(BY SRI.NANJE GOWDA, ADVOCATE FOR R8 AND R9)

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THIS W.P IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND PROCEEDS OF THE CASE, THIS HONBLE COULD PLEASED TO EXERCISE ITS JURISDICTION ARTICLE 227 OF CONSTITUTION OF INDIA. SET ASIDE THE ORDER DATED 01.03.2021 (ANNEXURE-d) PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AT KOLAR ON I.A. FILED UNDER ORDER 6 RULE 17 OF CPC IN O.S. NO.717/2015

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

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ORDER

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The plaintiff in O.S.No.307/2008 on the file of Principal Senior Civil Judge, Kolar has filed this petition challenging an order dated 01.03.2021, by which an application filed by him under Order VI Rule 17 of CPC was rejected.

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The suit in O.S.No.307/2008 was filed for partition and separate possession of the suit schedule

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4 - NC: 2024:KHC:10882 WP No. 5017 of 2021

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properties. The suit was initially decreed in part. Thereafter, the plaintiff filed R.A.No.89/2014. In the said appeal, respondent Nos.8 and 9 herein, filed an application to be impleaded as they were proper and necessary parties, as it affected their interest in item Nos.1, 2 and 7 of 'A' schedule properties. The First Appellate Court allowed the appeal and remitted back the case to the Trial Court for reconsideration. This order was challenged before this Court in MSA No.74/2021. This Court in terms of the order dated 13.02.2023, confined the order of remand by the First Appellate Court only inrespect of item No.2 of 'B' schedule properties. Thereafter, the case was taken up before the Trial Court for consideration of the claim of respondent Nos.8 and 9.

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At the stage of arguments, the plaintiff filed an application to amend the extent of the property in item No.2 of 'A' schedule as 23 guntas instead of 5 acres 12 guntas and to amend the southern boundary as the land belonging to one Sri.Nagegowda in the same survey

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number. This application was contested by respondent Nos.8 and 9 herein. The Trial Court rejected the application in terms of the impugned order, on the ground that the application was filed belatedly at the stage of arguments in the suit. It also held that plaintiff intended to change the extent of suit item No.2 of 'A' schedule and therefore, it would introduce a new cause of action.

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Being aggrieved by the said order, plaintiffs are before this Court.

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Learned counsel for the petitioners/plaintiffs contended that though the application was filed at the belated stage yet, it did not change the nature of the suit and cause of action, as the plaintiffs intended to reduce the extent of the suit item No.2 of 'A' schedule from 5 acres 12 guntas to 23 guntas and wanted to amend the southern boundary of the properties. He submits that by allowing the application, no prejudice would be caused to respondent Nos.8 and 9 herein.

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NC: 2024:KHC:10882 WP No. 5017 of 2021

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Per contra, learned counsel for respondent

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Nos.8 and 9 contended that the application was filed at the belated stage and there was a direction in MSA No.74/2021 to dispose of the suit. Therefore, the order passed by the Trial Court is just and proper.

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An application for amendment has to be filed at the earliest possible, before the issues are framed. However, if the Court comes to the conclusion that the application for amendment could not be filed despite exercise of due diligence and that such application is necessary for disposal of the suit, the Court may allow such a belated application, but on terms.

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In the case on hand, plaintiffs attempted to amend item No.2 of 'A' schedule to reduce the extent of land mentioned therein from 5 acres 12 guntas to 23 guntas and also desired to show the southern boundary as "remaining property of Sri.Nagegowda" instead of "road". This did not in any manner, affect or prejudice the respondent Nos.7 and 8 herein. It neither changed the

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nature of the suit or the cause of action. However, this application was wholly belated and the plaintiff, who was expected to exercise due diligence to verify whether the suit item No.2 in which he was interested was 5 acres 12 guntas or 23 guntas, had woken up from deep slumber, only at the stage of arguments. Therefore, the application filed by the plaintiffs deserves to be allowed. However, the same can not be without imposing any conditions. In that view of the matter, the following:

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ORDER

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i. Petition is allowed .

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ii. Impugned order dated 01.03.2021 in O.S.No.307/2008 on the file of Principle Senior Civil Judge, Kolar is hereby set aside.

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iii. The application filed by the plaintiffs under Order VI Rule 17 is allowed and the plaintiffs are permitted to amend the item No.2 of 'A' schedule as sought for in the application.

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iv. It is open for respondent Nos.8 and 9 to file any additional written statement. Unless the fresh pleadings give rise to any issue, the Trial Court may proceed to hear the parties and dispose of the suit at the earliest.

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v. However, this is subject to payment of cost of Rs.5,000/payable by the plaintiffs to respondent Nos.8 and 9 before the Trial court on the next date of hearing.

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vi. It is made clear that no adjournments will be granted on the next date of hearing and the Trial Court shall permit the plaintiffs to amend the plaint and permit respondent Nos.8 and 9 to file their additional written statement if any and proceed with the case in accordance with law.

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KAV/List No.: 1 Sl No.: 29

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Sd/JUDGE

S.a.Muniyappa v. Smt Muninanjamma

Case brief

What is this about?

What did the court decide?

S.a.Muniyappa v. Smt Muninanjamma

Case brief

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