Sri P S Krishnakumar Vs Smt P S Manjula

SMT. P.S. MANJULA W/O LATE PRASAD D/O LATE P.V. SHANKARAIAH AGED ABOUT 59 YEARS R/AT. KUPPE VILLAGE CHUNCHANAKATTE HOBLI K.R. NAGAR TALUK MYSORE DISTRICT-571106.

¶14

SRI. P.S. SRIDHARA S/O LATE P.V. SHANKARAIAH AGED ABOUT 50 YEARS R/AT SANNAIAH STREET PERIYAPATNA TOWN-571107.

¶15

BRANCH MANAGER LIC OF INDIA K.R.NAGAR BRANCH MYSORE DISTRICT-571106.

¶16

SMT. T.A. SHILPA W/O P.S. SREEDHARA

¶17

2 - NC: 2025:KHC:24656 W.P. No.52920/2018

¶18

HC-KAR

¶19

AGED ABOUT 38 YEARS R/AT. CONVENT ROAD ADJACENT TO EDIGARA BEEDI PERIYAPATNA TOWN-571107.

¶20

…RESPONDENTS

¶21

(BY SRI. RAJASHEKAR K, ADV., FOR R3

¶22

R1 SERVICE OF NOTICE IS H/S V.C.O.DTD:29.08.2019 R2 SERVICE OF NOTICE IS H/S V.C.O.DTD:04.07.2025 R4 SERVICE OF NOTICE IS D/W V.C.O.DTD:08.01.2025)

¶23

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT ORDER OR DIRECTION QUASHING THE IMPUGNED ORDER DATED 26.10.2018 PASSED BY THE LEARNED SR. CIVIL JUDGE AND JMFC, PERIYAPATNA ON I.A.NO.15 IN O.S.NO.129/2013 AT ANNEX-H AND ALLOW THIS W.P WITH COSTS & ETC.

¶24

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

¶25

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

¶26

ORAL ORDER

¶27

This petition is filed seeking following reliefs:

¶28

"To issue a writ of certiorari or any other appropriate writ order or direction quashing the impugned order dated 26.10.2018 passed by the learned Senior Civil Judge and JMFC, Periyapatna on IA.No.15 in O.S.No.129/2013 found at Annexure-H, and allow this writ petition with costs, and grant such other reliefs as this Hon'ble Court deems fit to grant in the circumstances of the case."

¶29

Sri.Ashwin Prabhu, learned counsel appearing

¶30

for the petitioner submits that the petitioner filed a suit for

¶31

3 - NC: 2025:KHC:24656 W.P. No.52920/2018

¶32

HC-KAR

¶33

partition and separate possession and during the pendency of the said suit, the petitioner filed an application under Order VIII Rule 9 r/w Section 151 of Code of Civil Procedure, 1908 (for short 'CPC') seeking permission to file additional pleadings and also an application for production of documents under Order VII Rule 14 r/w Section 151 of CPC. These applications came to be rejected by the trial Court with the liberty to file an application under Order VI Rule 17 r/w Section 151 of CPC. Hence, he has filed IA.No.15 seeking amendment of the plaint. It is submitted that during the pendency of the suit for partition filed by the petitioner, certain developments have been taken place between the petitioner and his brother i.e., respondent No.2 and they have entered into partition on 27.08.2014 which he intend to bring on record by way of amendment. It is submitted that the respondents have taken a plea in the written statement with regard to the release deed and the Will, in order to deny the same also, the amendment is sought. It

¶34

4 -

¶35

NC: 2025:KHC:24656 W.P. No.52920/2018

¶36

HC-KAR

¶37

is submitted that the proposed amendments sought by the petitioner are necessary to decide the controversy between the parties. However, the trial Court without considering the same, solely on the ground that the proposed amendment was sought after the commencement of trial, rejected the application. Hence he seeks to allow the petition.

¶38

Respondent Nos.1, 2 and 4 though served, remained absent.

¶39

Sri.Rajashekar K., learned counsel appearing for respondent No.3, submits that one Sri.Muralidhara, brother of the petitioner has obtained the LIC policy and that the LIC would take appropriate steps after the disposal of the suit with regard to the said policy and he submits that they are not the contesting parties in the suit. Hence, he seeks to pass appropriate orders.

¶40

I have heard the arguments of the counsel for

¶41

the petitioner, the learned counsel for respondent No.3

¶42

5 - NC: 2025:KHC:24656 W.P. No.52920/2018

¶43

HC-KAR

¶44

and meticulously perused the material available record. I have given my anxious consideration to the submissions advanced.

¶45

The petitioner filed OS.No.129/2013 for partition and separate possession of the suit schedule property. Respondent No.2 filed a written statement denying the averments made in the plaint. The said written statement was filed on 01.04.2014. Thereafter, the trial Court framed the issues and the plaintiff adduced the evidence. After recording the evidence of PW.1 to PW.3, the petitioner filed applications in IA.Nos.13 and 14 under Order VIII Rule 9 r/w Section 151 of CPC and under Order VII Rule 14 r/w Section 151 of CPC respectively seeking to file additional pleading and also for production of the partition deed dated 27.08.2014 which came to be rejected by the trial Court and the same was assailed before this Court in WP.Nos.52917/2018 and 52918/2018. Be that as it may, later, the petitioner after rejection of the said applications, filed an application in IA.No.15 under

¶46

6 - NC: 2025:KHC:24656 W.P. No.52920/2018

¶47

HC-KAR

¶48

Order VI Rule 17 seeking for amendment of the plaint. The affidavit accompanying the application indicates that the petitioner intended to bring certain facts on record. More particularly, it was claimed in the written statement that the petitioner and his brother Sri.Muralidhara have executed registered release deed dated 30.03.2002 pertaining to item No.3 of schedule property and the same is being denied in the proposed amendment. Further, the petitioner intends to seek amendment to the plaint by bringing certain events which has taken place after the filing of the suit i.e., Defendant Nos. 1 and 2 in the suit, got executed partition deed dated 27.08.2014 through a counsel and the said fact along with the documents intend to be brought on record. However, the trial Court rejected the said application only on the ground that the factum of registration of the release deed was within the knowledge of the petitioner when the written statement was filed by defendant No.2 and the filing of application is belated. In my considered view, the trial Court has committed grave

¶49

7 - NC: 2025:KHC:24656 W.P. No.52920/2018

¶50

HC-KAR

¶51

error in rejecting the said application. It is no doubt that the application is filed after the commencement of the evidence. However, the application seeking amendment clearly indicates that the petitioner intend to bring certain facts and events which has taken place after the filing of the suit i.e., with regard to the execution of the partition deed dated 27.08.2014 between the plaintiff and defendant Nos.1 and 2. With regard to the assertion that the plaintiff has not executed the registered release deed, the petitioner in his plaint has made a vague assertion to that effect and sought partition. Hence, in my considered view, the proposed amendment neither alters the nature of suit, nor is beyond the period of limitation, nor it would cause any prejudice to the other side. On the other hand, the proposed amendment would aid the trial Court to arrive just conclusion and necessary to decide the controversy involved in the suit. For the aforementioned reasons, I proceed to pass the following:

¶52