Smt Saroja Vs Sri Suresh Babu

SRI SURESH BABU S/O H.K. SHIVAPPA AGED ABOUT 47 YEARS DOOR NO. 497, 6TH CROSS VINAY MARG, JNANA MARG KARIBEERESWARA PARSANNA SIDDARTHA LAYOUT MYSORE - 570 011.

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SRI H.S. HEMANTA KUMAR S/O H.K. SHIVAPPA AGED ABOUT 37 YEARS R/O RAVINDRA MOHAL, HASANAMBA TEMPLE STREET HASSAN - 573 201.

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SMT. SATYAVATHI W/O LATE NAGANNA GOWDA AGED ABOUT 43 YEARS C/O B.R. V, CHANDRASHAKAR SUFDARJUNG LANE NO. 5

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NEW DELHI - 110 029.

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SMT. SAVITRI W/O ASHOKA AGED ABOUT 44 YEARS R/AT NO.3, C/O BHARATHI 2ND MAIN 3RD STAGE VINAYAKA LAYOUT VIJAYANAGAR, BENGALURU - 560 040.

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SMT. RAMAMANI W/O ASHOKA AGED ABOUT 39 YEARS C/O RAMALINGAIAH SHARADHA NIVASA 16TH CROSS, EXTN NANJANAGUD MYSORE - 571 301.

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SMT. SHASHI KUMARI W/O B.R. CHANDRA AGED ABOUT 45 YEARS SAFDAR JUNG ROAD NEW DELHI - 110 029.

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…RESPONDENTS

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(BY SRI GIRISH B BALADARE, ADV.)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT MODIFYING THE IMPUGNED ORDER DTD 20.07.2023, PASSED IN O.S.NO.15/2014 BY THE COURT OF THE HONBLE PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT HASSAN PRODUCED AT ANNEXURE-A AND ALLOW THE IA NO.9 FILED UNDER ORDER VI RULE 17 R/W SECTION 151 OF CPC, 1908 PRODUCED AT ANNEXURE-B.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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NC: 2025:KHC:49391 WP No. 20859 of 2023

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ORAL ORDER

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Plaintiff is before this Court in this writ petition filed under Article 227 of the Constitution of India, with a prayer set-aside the order dated 20.07.2023 passed on IA No.9 in OS No.15/2014 by the Court of the Principal Senior Civil Judge and CJM, Hassan.

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Heard the learned counsel for the parities.

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Petitioner herein has filed OS No.15/2014 before the jurisdictional Civil Court seeking the relief of partition and separate possession of the suit schedule properties which consists of five items of properties. In the said suit, contesting defendants have filed written statement and have opposed the suit claim. IA No.9 is filed under Order VI Rule 17 read with Section 151 of CPC with a prayer to permit the plaintiff to amend the plaint. The said application was opposed by the contesting defendants by filing objections. The Trial Court vide the order impugned has partly allowed the application and being aggrieved by the same, the plaintiff is before this Court.

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NC: 2025:KHC:49391 WP No. 20859 of 2023

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Learned counsel for the petitioner submits that Trial Court was not justified in allowing the IA only to include Item No.8 of the application in the schedule to the plaint in OS No.15/2024. He submits that Trial Court has not considered the prayer made by the petitioner to permit her to amend Item No.2 of the suit schedule properties. He submits that Item Nos.6 and 7 in the application were allotted to defendant Nos.1 and 2 under the Partition Deed dated 04.12.2000 for which petitioner was not a party. He also submits that Item No.9 property was purchased by defendant No.1 by utilizing the income from joint family properties. The Trial Court has not even considered the prayer made by the petitioner to amend Item No.2 of the plaint schedule properties and to incorporate Item No.10 property as additional property in the plaint.

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Per contra, learned counsel for the respondents have argued in support of the order impugned. They submit that execution of the partition deed dated 04.12.2000 is admitted. Therefore, there was no joint family property existing as on the date the 2005 amendment to the Hindu Succession Act came into force. The Trial Court was therefore, justified in not

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permitting the plaintiff to include proposed Item Nos.6 and 7 properties in the plaint. They submit that Item No.9 property is the self acquired property of defendant No.1 which was registered in his name in the year 2019. Accordingly, they pray to dismiss the petition.

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A perusal of the prayer made in IA No.9 would go to show that plaintiff has prayed to amend Item No.2 of the suit schedule properties by incorporating certain words after the words '12 guntas' found in item No.2 of the suit schedule properties. In addition to the same, a prayer is made to include item Nos.6, 7, 8, 9 and 10 after item No.5 of the suit schedule properties. The Trial Court in the order impugned has not at all referred to the prayer made by the plaintiff to amend Item No.2 of the suit schedule properties by incorporating the proposed words as found in the application. In addition to the same, the Trial Court also has not referred to Item No.10 of the application, which refers to a rice mill standing on Sy.No.409 of Manachanahally Village and Survey Nos.61/3 and 61/8 of Guddenahalli Village. Without even reference to the aforesaid two proposed amendments, the Trial Court has partly allowed

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NC: 2025:KHC:49391 WP No. 20859 of 2023

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the application permitting the plaintiff to incorporate only Item No.8 of the application as Item No.6 in the suit schedule properties. From the aforesaid, it is apparent that there is no application of mind by the Trial Court while considering the prayer made in IA No.9 and on this short ground, the order impugned needs to be set-aside. Accordingly, the following order:-

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The writ petition is allowed. The order dated 20.07.2023 passed on IA No.9 in OS No.15/2014 by the Court of the Principal Senior Civil Judge and CJM, Hassan, is set-aside and the matter is remitted to the Trial Court to consider IA No.9 afresh after hearing all the parties in accordance with law.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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DN

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List No.: 1 Sl No.: 39

Smt Saroja v. Sri Suresh Babu

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Smt Saroja v. Sri Suresh Babu

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