Sri. H v Rajashekar Rao Vs Smt. Usha

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER DATED 10-09-2024 PASSED IN O.S. NO. 2398/2016 ON THE FILE OF THE XL ADDI. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-41) ON AN APPLICATION (I. A. NO. 3/24) FILED BY THE RESPONDENT NO. 5 UNDER ORDER VI RULE 17 OF THE CODE OF CIVIL PROCEDURE (ANNEXURE-J) AND THEREBY DISMISS THE SAID APPLICATION.

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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 M.NAGAPRASANNA

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ORAL ORDER

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The petitioner – plaintiff is before this Court calling in question an order dated 10.09.2024 passed by the XL Additional City Civil and Sessions Judge, Bengaluru, allowing an application – I.A.No.3/2024 filed under Order VI Rule 17 r/w. Section 151 of the CPC, by respondent No.5 – defendant No.5 seeking permission to amend the written statement, in O.S.2398/2016, instituted for partition and separate possession.

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NC: 2025:KHC:35719 WP No. 33742 of 2024

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HC-KAR

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Heard Sri Srinivas Manohar Kulkarni, learned counsel

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for the petitioner and Sri Yashwanth Nethaji N.T., learned counsel for the respondent No.5.

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The petitioner - plaintiff institutes a suit seeking partition and separate possession. The issue in the lis does not relate to the merit of the matter. In the proceedings, respondent No.5 - defendant No.5 though after about 8 years of the institution of the suit files an application – I.A.No.3/2024 seeking amendment of the written statement under Order VI Rule 17 r/w. Section 151 of the CPC. The amendment application sought for is as follows:

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“ PROPOSED AMENDMENT :

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1. Add Paragraph No.27.A after Paragraph No.27 in Page No.14:

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27. A.Flat No.F1 have been sold to one Sri. M. Ramesh Prabhu under registered sale deed dated 18.09.2015. Flat No.T1 have been sold to one Smt. Sneha Y.P and Sri. C.N. Raghavendra under registered sale deed dated 11.03.2016. Flat No.S2 have been sold to Sri. L.G. Vinayaka under a registered sale deed dated 19.03.2016. Flat No.G2 have been sold to Sri. Mohan Muthuraj A.R. under registered sale deed dated 21.03.2016. All these sales are prior to filing of the suit itself. These flats are located on the plaint schedule plot. The purchasers had also been delivered with possession of their respective flats and are in possession of the same. The plaintiff was not in possession of any portion of the schedule property at any point of time. The valuation made and court fee

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HC-KAR

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paid by the plaintiff is incorrect, insufficient and the plaintiff have to pay the court fee on the market value of the schedule property with constructions thereon. Apart from it the aforesaid purchasers are not made parties to this suit . As such suit is bad for non-joiner of necessary parties.”

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The concerned Court by the following order, allows the application:

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“7. POINT NO.1 :: The present suit is one for partition and separate possession of plaintiff's ¼ share in the suit schedule property and for declaration that the WILL dated 22.06.1988 is fabricated and forged document. The defendants No.5 to 7 have filed their written statement wherein which in para no.27 it is specifically contended that pursuant to the Joint Development Agreement, even before filing of the suit sale transactions has taken place and suppressing the same the present suit is filed.

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8. The records shows that in paragraph No.27 there is a vague pleading that sale transaction has taken place much prior to the filing of the suit and there is suppression of these facts by the plaintiff. So by way of amendment these defendants intend to plead the details of the sale transactions that took place much before filing of the suit and that the 3^rd party rights have been created over the suit schedule property and by way of amendment has also sought to incorporate the issue as to the valuation of the suit. So the suit being one for partition and separate possession and for consequential relief and when these defendants claim that much prior to the filing of the suit the properties are alienated and the purchasers are in possession of the respective properties, then for the purpose of effectual adjudication of the controversy involved the proposed amendment is found to be necessary. No doubt, this application is filed at belated stage and that too after lapse of 8 years. Since the evidence of parties are not yet concluded and it is in the stage

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NC: 2025:KHC:35719 WP No. 33742 of 2024

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HC-KAR

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of evidence of plaintiff pursuant to the order passed by this Court on I.A. No.1/24 and 2/24, it is found necessary to allow this application.

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9. It is well settled preposition of law that the grant or refusal of amendment is discretionary power of the Court and the said power must be exercised judiciously and with great care. Some basic tests which governs the grant or refusal of amendment is whether such amendment is necessary for determination of real controversy in question and the potentiality of prejudice or injustice which is likely to be caused to the other side and more importantly the Court to take into account whether the proposed amendment constitutionally or fundamentally changes the nature and character of the suit.

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10. So, the proposed amendment would not in any manner change the fundamental nature of the defense raised by the defendants and on the other hand, it is an only explanation given by the defendants to the vague pleading stated earlier. Hence, this Court proceeds to answer aforesaid point for consideration in the Affirmative.

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11. POINT NO-2 :: In view of my answer to Point No. 1, this Court proceed to pass the following;

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ORDER

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I.A. No.3 filed by the defendants No.5 to 7 under Order VI Rule 17 R/w. Sec. 151 of Code of Civil Procedure, 1908 is allowed.

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The defendant counsel shall carry out amendment and furnish amended written statement.”

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(Emphasis added)

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This order, allowing the application has driven the petitioner – plaintiff before this Court in the subject petition.

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NC: 2025:KHC:35719 WP No. 33742 of 2024

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HC-KAR

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The solitary contention of the learned counsel for the petitioner is that, the amendment was sought by defendant No.5 by filing an application and the order is unnecessary in the decision of the suit.

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A perusal at the amendment is only for the purpose of amplification of the averments made in the written statement. The concerned Court in terms of the order quoted supra , has by rendering cogent reasons allowed the application holding that the application is necessary to decide the issue as it was a joint family properties.

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In the light of the observations made hereinabove, this Court exercising its jurisdiction under Article 227 of the Constitution of India, does not find it necessary to obliterate the well reasoned order passed by the concerned Court.

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In that light, the petition being want of merit, stands rejected. Interim order of any kind stands dissolved.

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Sd/(M.NAGAPRASANNA) JUDGE

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NVJ List No.: 1 Sl No.: 10 CT:SS

Sri. H v. Rajashekar Rao v Smt. Usha

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Sri. H v. Rajashekar Rao v Smt. Usha

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