Sri. Parveenkumar S/O Mahaeshwara Haralalli Vs Smt. Suvarna Alias Fakkiravva W/O Maheshwara Haralalli

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED. 21-01-2025 ON IA NO. IV FILED IN OS NO. 393 OF 2022 PASSED BY THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE AND JMFC AT HUBBALLI PRODUCED AT ANNEXURE-F, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

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The petitioner is before this Court seeking for the following reliefs:

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i. Issue a writ in the nature of Certiorari quashing the impugned order dated 21.01.2025 on I.A.No.IV filed in O.S.No.393 of 2022 passed by the Court of the I Additional Senior Civil Judge & JMFC at Hubballi produced at Annexure-F in the interest of justice and equity.

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ii. Issue such other writ or direction as this Hon’ble Court deems fit under the facts and circumstances of the case.

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The petitioner had filed a suit in O.S. No. 99/2021, thereafter, it is re-numbered as OS No. 393/2022 pending on the file of I Additional Senior Civil Judge

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and JMFC, Hubballi seeking for partition and separate possession. In the said suit, an application in IA No.4 under Order VI Rule 17 of the Code of Civil Procedure came to be filed to include certain other properties on the ground that those properties are also properties belonging to the family and had not been deliberately included in the suit.

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The trial court vide its order dated 21.01.2025 allowed the said application. It is challenging the same that the petitioner is before this court.

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The submission of Sri.A.M.Malipatil, learned counsel for the petitioner is that the properties which are now sought to be brought on record by way of amendment are self-acquired properties of the plaintiff and not joint family properties and one of the properties has already been sold and as such, not available for partition. His submission is that it is only the properties which have been mentioned in

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the plaint which are the joint family properties and the properties now sought to be brought on record have not been excluded by the plaintiff as claimed by the defendant and as such, he submits that the order passed by the trial court suffers from legal infirmity requiring this court to intercede in the matter and set aside the order passed by the trial court and dismiss the application.

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Heard Sri.A.M.Malipatil, learned counsel for the petitioner. Perused papers.

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It is not in dispute that the suit is one for partition. The defendants having contended that there are certain other properties which are also joint family properties had filed an application for inclusion of the said properties which came to be allowed by the impugned order. Whether the said properties are joint family properties or not would have to be determined by the trial Court after trial. At the stage

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of consideration of an application under Order VI Rule 17 what is required to be seen is whether prima facie the said properties could be said to be joint family properties or not. The further defence which may be available to the parties will continue to exist during the trial of the said suit.

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Insofar as the contention of Sri.A.M.Malipatil, learned counsel for the petitioner is also that one of the property has been sold. Whether the said property also belonged to the joint family, whether the sale was effected properly or not, would also be subject matter of the Suit for partition requiring the trial Court to decide the same. In that view of the matter at the stage of consideration of an application under Order VI Rule 17 of CPC, it being not required to ascertain by holding an enquiry as to whether the property is joint family property or not, I do not find any infirmity in the impugned order passed by the trial Court. As such I pass the following:

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ORDER

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i. The petition is dismissed, liberty being reserved to the petitioner to agitate all contentions as regard the properties being self-acquired properties of the petitioner and not joint family properties during the course of trial.

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Sd/(SURAJ GOVINDARAJ) JUDGE

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LN/List No.: 1 Sl No.: 17

Sri. Parveenkumar S/O Mahaeshwara Haralalli v. Smt. Suvarna Alias Fakkiravva W/O Maheshwara Haralalli

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Sri. Parveenkumar S/O Mahaeshwara Haralalli v. Smt. Suvarna Alias Fakkiravva W/O Maheshwara Haralalli

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