Smt. Kempamma Vs Sri C Shivakumar

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NC: 2025:KHC:26292 W.P. No.40455/2019

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF JULY, 2025 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.40455/2019 (GM-CPC)

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BETWEEN:

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SMT. KEMPAMMA DEAD BY LR'S PETITIONERS 1 TO 3.

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Digitally signed by RUPA V Location: High Court of karnataka

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SMT. C. NAGARATHNA D/O LATE CHALUVEGOWDA AGED ABOUT 57 YEARS R/O NO.33, 1^ST MAIN, 1^ST CROSS GNGOTHRI LAYOUT MYSORE-570009.

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SMT. HEMAVATHI ALIAS K.C. SUMA RAVISHANKAR AGED ABOUT 55 YEARS W/O SRI. K.C. RAVISHANKAR R/O NO.311, D. SUBBAIAH ROAD MYSORE-570009.

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SMT. C. PREMAKUMARI AGED ABOUT 48 YEARS W/O SRI. T.K. SRINIVAS R/O. THENKALA KOPPALU HUSSAINPURA POST BILIKERE HOBLI, HUNSUR TALUK MYSORE DISTRICT-571103.

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…PETITIONERS

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(BY SRI. S.M. BABU, ADV.,)

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AND:

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SRI. C. SHIVAKUMAR S/O LATE SRI. CHALUVEGOWDA AGED ABOUT 59 YEARS

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NC: 2025:KHC:26292 W.P. No.40455/2019

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HC-KAR

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R/O NO.2, NORTH 4TH CROSS KUMBARAKOPPAL, DEVARAJA MOHALLA MYSORE-570009.

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…RESPONDENT

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(BY SRI. KRISHNAMOORTHY D, ADV.,)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 09.08.2018, AS PER ANNEXURE-A, PASSED BY THE 2ND ADDL. CIVIL JUDGE & CJM, MYSORE IN O.S.NO.345/1998 ALLOWING THE APPLICATIONS (1) U/S 152 OF C.P.C TO AMEND THE MEASUREMENT IN ITEM NO.3 OF THE PLAINT SCHEDULE AND (2) ORDER 6 RULE 17 OF CPC TO PERMIT THE PLAINTIFFS/ PETITIONERS TO AMEND/INSERT THE MEASUREMENT IN THE ITEM NO.3 OF THE PLAINT SCHEDULE & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking following reliefs:

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"a. Set-aside the order Dated 09-08-2018, as per Annexure-A, passed by the 2^nd Addl. Civil Judge & CJM., Mysore in O.S.No.345/1998 allowing the Applications (1). Under Section 152 of C.P.C. to amend the measurement in Item No.3 of the plaint schedule and (2). Order 6 Rule 17 of CPC to permit the plaintiffs/petitioners to amend/insert the measurement in the item No.3 of the plaint schedule."

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2. Sri.S.M.Babu, learned counsel appearing for the

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petitioners submits that the petitioners filed a suit for partition and separate possession which came to be

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NC: 2025:KHC:26292 W.P. No.40455/2019

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HC-KAR

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decreed. Later, RA.No.394/2010 has filed by the defendant which came to be dismissed. Being aggrieved, both plaintiffs and defendant filed RSA.Nos.2280/2018 and 1753/2016 respectively and the same was heard as a connected matter, wherein RSA.No.1753/2016 came to be

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dismissed and RSA.No.2280/2018 came to be allowed in part on 12.07.2024. It is submitted that during the pendency of the regular second appeals the petitioners filed an application under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') in the FDP proceedings seeking to correct the extent in item No.3 of the suit schedule property which came to be rejected. Being aggrieved, the petitioners filed WP.No.13559/2016. This Court, vide order dated 06.01.2021 set aside the order of the FDP Court dated 05.01.2016 by granting liberty to the petitioners to file an application after the disposal of the regular second appeals filed by the petitioners and respondent. It is submitted that during the pendency of the regular second appeals

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HC-KAR

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the petitioners moved an application in OS.No.345/1998

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seeking to correct the extent in item No.3 of the suit schedule property. Under the impugned order, the trial Court has rejected the said application directing the petitioners to work out the remedy in the pending FDP proceedings. It is submitted that this Court in the aforesaid writ petition granted liberty to the petitioners to file an application for correction/insertion of the extent in item No.3 of the suit schedule property and the FDP Court is required to consider the same. It is further submitted that he would file necessary application in the pending FDP and let the FDP Court consider such application keeping in mind the observation of this Court in WP.No.13559/2016. It is also submitted that the insertion or the amendment sought is only an arithmetical error which would not cause any prejudice or injustice to the other side and none of the parties have opposed the said application. Hence, he seeks to pass appropriate orders.

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HC-KAR

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Per contra, Sri.Krishnamoorthy, D., learned

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counsel appearing for the respondent supports the impugned order of the trial Court and submits that if the petitioners intend to file an application in the pending FDP it is open for him to do so as the present petition would not survive for consideration in view of the specific liberty sought by the petitioner. Hence, he seeks to pass appropriate orders.

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I have heard the arguments of the learned

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counsel for the petitioners, the learned counsel for the respondent and material available on record. I have given my anxious consideration to the submissions advanced on both sides.

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The material on record indicates that the petitioners filed OS.No.345/1998 seeking relief of partition and separate possession. The said suit came to be decreed on 15.09.2009. Being aggrieved, the defendant filed RA.No.394/2010 which came to be dismissed. Being

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HC-KAR

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aggrieved, the plaintiffs as well as the defendant filed RSA.Nos.1753/2016 and 2280/2018 which came to be disposed of by this Court on 12.07.2024. Interregnum, the petitioners filed an application in IA.No.7 under Order VI Rule 17 r/w Section 151 of the CPC in pending FDP.No.112/2011 seeking to insert the extent of the survey number in item No.3 of the suit schedule property which is left out from the pleading. The said application came to be rejected by the FDP Court on 05.01.2016 which was assailed by the petitioners in WP.No.13559/2016. This Court passed vide order dated 06.01.2021, which reads as under:

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"Under these circumstances, without expressing any opinion on merits/demerits of the rival contentions, I deem it fit and proper to dispose of this petition setting aside the impugned order dated 05.01.2016 passed in FDP No.112/2011 on application, I.A.No.7 on the file of the Senior Civil Judge and CJM, Mysuru and reserving liberty in favour of the petitioner to file appropriate application(s) seeking suitable reliefs after disposal of RSA Nos.1753/2016 and 2280/2018."

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Now the regular second appeals filed by the

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petitioners and respondent as referred supra is disposed

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NC: 2025:KHC:26292 W.P. No.40455/2019

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HC-KAR

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of. Hence, it would be just and appropriate to permit the petitioners to file an appropriate application in FDP.No.112/2011. With the aforesaid liberty, the present writ petition is disposed of. If such application is filed, the FDP Court is directed to consider the same and dispose of the same in accordance with law.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK

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List No.: 1 Sl No.: 24

Smt. Kempamma v. Sri C Shivakumar

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Smt. Kempamma v. Sri C Shivakumar

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