Allowed¶69

Smt Leena Gracy Fernandes v. Emiliana D Silva

Karnataka HC6 Jul 2026WP/16125/2017

Case brief

AI extract

What is this about?

High Court of Karnataka at Bengaluru; Vijaykumar A. Patil, J.; W.P. No.16125/2017 (GM-CPC); decided 06.07.2026. Partition suit O.S.No.6/1997 before I Additional Civil Judge and JMFC, Mangalore. Legal representative of deceased defendant No.2 sought leave under Order VIII Rule 9 read with Section 151 CPC to file additional written statement after filing a memo adopting defendants 1 and 2's written statement; trial Court's rejection held unsustainable; additional written statement records sale of suit property by registered sale deed dated 09.12.2010; writ allowed, impugned order set aside, IA.No.18 allowed, no costs.

What did the court decide?

Impugned order dated 27.08.2016 set aside; IA.No.18 allowed; trial Court directed to take the additional written statement on record and proceed further; no order as to costs. ¶69

Smt Leena Gracy Fernandes Vs Emiliana D Silva — Writ and Judicial Review | Karnataka HC (2026)

What the court decided

AI extract

Outcome

Impugned order dated 27.08.2016 set aside; IA.No.18 allowed; trial Court directed to take the additional written statement on record and proceed further; no order as to costs.

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Issue for consideration

Whether the petitioner, as legal representative of deceased defendant No.2, was entitled to leave under Order VIII Rule 9 read with Section 151 CPC to file an additional written statement despite having filed a memo on 23.08.2016 adopting the written statement of defendant Nos.1 and 2.

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Court's answer

The petitioner, brought on record as LR of deceased defendant No.2, has every right to file an additional written statement; that right cannot be denied solely on the ground that she inadvertently filed a memo on 23.08.2016 adopting the written statement of defendant Nos.1 and 2.

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Ratio / Principle

The additional written statement recording that Sri.Francis D'Silva had sold the plaint suit schedule property in favour of Smt.Adoline D'Souza by registered sale deed dated 09.12.2010 is necessary.

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Key takeaways

The additional written statement intended to be filed would neither take away the admissions made in the written statement filed by defendant Nos.1 and 2, nor cause any prejudice to the other side.ratio¶62

Detailed headnote1 paragraphs

Writ petition under Article 227 of the Constitution of India by the legal representative of deceased defendant No.2 in a partition suit (O.S.No.6/1997, I Additional Civil Judge and JMFC, Mangalore) challenging rejection of her application under Order VIII Rule 9 read with Section 151 CPC for leave to file an additional written statement. Held: a legal representative brought on record after the defendant's death has every right to file an additional written statement, and that right cannot be denied solely because she had earlier filed a memo (dated 23.08.2016) adopting the written statement of defendant Nos.1 and 2; the additional written statement (placing on record the sale of the suit property by registered sale deed dated 09.12.2010) would neither take away the admissions in the earlier written statement nor cause prejudice to the other side. Writ petition allowed; impugned order dated 27.08.2016 set aside; IA.No.18 allowed; trial Court to take the additional written statement on record and proceed further. No order as to costs.

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NC: 2026:KHC:33574 W.P. No.16125/2017

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF JULY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.16125/2017 (GM-CPC)

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BETWEEN:

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SMT. LEENA GRACY FERNANDES WIFE OF LATE FRANCIS D’SILVA R C CHRISTIAN AGED ABOUT 65 YEARS RESIDING AT TATAO HOUSE KODAMANNU POST VIA FARANGIPETE, BANTWAL TALUK - 574143 DAKSHINA KANNADA DISTRICT REP. BY HER GPA HOLDER MR. LESLIN D’CRUZ S/O JOHN D’CRUZ AGED 36 YEARS R/AT BIKARNAKATTE, BAJJODI MANGALORE – 05.

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…PETITIONER

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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(BY SRI. CHINMAY C. KAROSHI, ADV., FOR SRI. DHANANJAY KUMAR, ADV.,)

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AND:

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EMILIANA D’SILVA WIFE OF A.P. RODRIGUES R C CHRISTIAN AGED ABOUT 70 YEARS RESIDING AT MELTHOTA HOUSE KULSHEKAR POST, MANGALORE.

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MRS. FLORIN D’SILVA WIFE OF LATE STANY D’SILVA R C CHRISTIAN

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2 - NC: 2026:KHC:33574 W.P. No.16125/2017

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HC-KAR

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AGED ABOUT 55 YEARS RESIDING AT THOURO COMPOUND NEAR TODDY SHOP, POST GANJIMATTA MANGALORE-575004 DAKSHINA KANNADA DISTRICT.

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VINCENT D’SILVA SON OF LATE STANY D’SILVA AGED ABOUT 33 YEARS RESIDING AT THOURO COMPOUND NEAR TODDY SHOP, POST GANJIMATTA MANGALORE, DAKSHINA KANNADA DISTRICT.

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JESINTHA D’SILVA DAUGHTER OF LATE STANY D’SILVA AGED ABOUT 30 YEARS RESIDING AT THOURO COMPOUND NEAR TODDY SHOP, POST GANJIMATTA MANGALORE, DAKSHINA KANNADA DISTRICT.

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WALTER D’SILVA SON OF LEO D’SILVA R C CHRISTIAN AGED ABOUT 66 YEARS RESIDING AT MARIYASHRAM KOTRES HOUSE, KUNJATHOOR POST, TALAPADY MANGALORE TALUK-575006 DAKSHINA KANNADA DISTRICT.

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SMT. LEENA D’SILVA WIFE OF JOHN D’CRUZ R C CHRISTIAN AGED ABOUT 63 YEARS RESIDING AT C/O RONALD FERNANDEZ S R FOOD STUFF EST. POST BOX 15968 DUBAI U A E-110001.

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SMT. AGNES D’SILVA WIFE OF LATE PAUL COSTA DAUGHTER OF LEO D’SILVA R.C.CHRISTIAN

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3 - NC: 2026:KHC:33574 W.P. No.16125/2017

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HC-KAR

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AGED ABOUT 73 YEARS

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RESIDING AT ALAPE KEMBAR PADIL POST, MANGALORE-575005 DAKSHINA KANNADA DISTRICT.

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SMT. IRINE D’SILVA DAUGHTER OF LEO D’SILVA WIFE OF DENIS SEQUEIRA R.C.CHRISTIAN AGED ABOUT 67 YEARS RESIDING AT DAILA HOUSE MOODUPERAR POST MANGALORE TALUK DAKSHINA KANNADA DISTRICT.

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8(a) SRI. NAVEEN A. SEQUEIRA S/O LATE IRINE D’SILVA MAJOR

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R/AT. NO.42/1, RAGHAVENDRA CHANDANA BUILDING

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HANUMANTHANAGAR, BIDADI RAMANAGARA DISTRICT-562109.

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8(b) SMT. DINA D’SOUZA W/O MR. MANOJ D’SOUZA MAJOR R/AT. KAKKE BETTU CROSS SHAKTHI NAGAR MANGALORE-5750050

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8(c) MRS. CYNTHIA D’SOUZA W/O MR. ALWIN D’SOUZA CARE OF DINA D’SOUZA R/AT. KAKKE BETTU CROSS SHAKTHI NAGAR MANGALORE-575005.

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[AMENDED AS PER ORDER DATED 06.07.2026]

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ANNE D’SILVA DAUGHTER OF LEO D’SILVA

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NC: 2026:KHC:33574 W.P. No.16125/2017

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HC-KAR

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AGED ABOUT 54 YEARS R.C.CHRISTIAN RESIDING AT MELTHOTA MANE PADAVU VILLAGE, KULSHEKAR POST MANGALORE-575005 DAKSHINA KANNADA DISTRICT.

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…RESPONDENTS

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(R1, R2, R3, R4, R5, R6, R7 ARE SERVED V/O/DTD:12.03.2021 NOTICE TO R9 IS H/S PROPOSED R8 (c) IS SERVED V/O/DTD:21.08.2025, NOTICE TO R8 (b) IS H/S V/O/DTD:02.06.2026, SERVICE OF NOTICE TO R8(a) IS H/S)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD 27.08.2016 PASSED ON I.A.NO.XVIII UNDER SECTION 151 OF CPC IN O.S.NO.6/1997 NO THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, MANGALORE, DAKSHINA KANNADA DISTRICT VIDE ANNX-A & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, 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 challenging the order dated 27.08.2016 passed on IA.No.18 in OS.No.6/1997 by the I Additional Civil Judge and JMFC, Mangalore, Dakshina Kannada (for short ‘the trial Court’).

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NC: 2026:KHC:33574 W.P. No.16125/2017

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HC-KAR

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2. Heard Sri.Chinmay C. Karoshi, learned counsel

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for Sri.Dhananjay Kumar, learned counsel appearing for the petitioner.

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Despite service of notice, there is no

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representation for the respondents.

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The respondent Nos.1 to 6 filed a suit for partition. In the said suit, the father of the petitioner was defendant No.2. Defendant Nos.1 and 2 filed detailed written statement denying the averments made in the plaint. During the pendency of the said suit, defendant No.2 died and his legal representative (LR) was brought on record. The petitioner herein is the LR of the deceased defendant No.2. It is to be noticed that the petitioner/defendant No.2(a) filed a memo on 23.08.2016 stating that she would adopt the written statement filed by defendant Nos.1 and 2 and later, she noticed that the earlier written statement filed by defendant Nos.1 and 2 has missed one factual aspect with regard to the sale of

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6 - NC: 2026:KHC:33574 W.P. No.16125/2017

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HC-KAR

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the suit property. Immediately on the next day, i.e., on 24.08.2016, the petitioner filed an application under Order VIII Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking the leave of the Court to file an additional written statement. The trial Court rejected the said application solely on the ground that on 23.08.2016 the memo was filed by the petitioner/defendant No.2(a) stating that she would adopt the written statement filed by defendant Nos.1 and 2, and now she cannot contend that she would file an additional written statement.

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It is to be noticed that, along with the application seeking leave of the Court to file an additional written statement, the petitioner/defendant No.2(a) also filed an additional written statement. A perusal of the additional written statement shows that it contains one paragraph, wherein the petitioner/defendant No.2(a) intends to place on record that Sri.Francis D’Silva had sold the plaint suit schedule property in favour of Smt.Adoline

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NC: 2026:KHC:33574 W.P. No.16125/2017

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HC-KAR

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D’Souza by virtue of a registered sale deed dated 09.12.2010 and the said purchaser had purchased the property after obtaining a legal opinion and after confirming that defendant No.2 - Francis D’Silva was the absolute owner of the property. In my considered view, the said amendment is necessary as the present petitioner/defendant No.2(a), who has been brought on record after the death of defendant No.2, as his LR, has every right to file an additional written statement. Her right to file an additional written statement cannot be denied solely on the ground that she inadvertently filed a memo on 23.08.2016 stating that she would adopt the written statement filed by defendant and 2.

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It is also required to be noticed that the additional written statement now intended to be filed would neither take away the admissions made in the written statement filed by defendant Nos.1 and 2, nor

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NC: 2026:KHC:33574 W.P. No.16125/2017

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HC-KAR

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would it cause any prejudice to the other side. Hence, I proceed to pass the following:

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ORDER

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i. The writ petition is allowed .

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ii. The impugned order dated 27.08.2016 passed on IA.No.18 in OS.No.6/1997 by the I Additional Civil Judge and JMFC, Mangalore, Dakshina Kannada is hereby set aside. Consequently, IA.No.18 is allowed.

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iii. The trial Court shall take the additional

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written statement on record and proceed further.

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No order as to costs.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK List No.: 1 Sl No.: 31

Smt Leena Gracy Fernandes v. Emiliana D Silva

Case brief

What is this about?

What did the court decide?

Smt Leena Gracy Fernandes v. Emiliana D Silva

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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