Allowed

Burremolla Kumar, v. Burremilla Dayanand died per L.Rs

Telangana HC13 Aug 2014CRP/3241/2011

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition filed by defendants in a partition suit. The trial court had dismissed an application to file an additional written statement on grounds of lapse of time. The revisionbench held that delay is not fatal if no prejudice is caused to the opposite party, permitting the defendants to file the additional statement.

What did the court decide?

The dismissal of the application under Order VIII Rule 9 CPC by the trial court is set aside, and the revision petitioners are permitted to file the additional written statement.

Burremolla Kumar, Vs Burremilla Dayanand died per L.Rs — Partition | Telangana HC (2014)

¶1

HON’BLE DR. JUSTICE B. SIVA SANKARA RAO CIVIL REVISION PETITION No.3241 of 2011 ORDER:

¶2

This revision is maintained by defendants 1 to 5 against the plaintiffs and other defendants 6 to 8 in O.S. No.75 of 2007, on the file of VII Additional District Court – cum- Family Court, Medak at Sangareddy, filed for partition, and in the pending suit for partition originally there were 6 defendants and defendants 7 and 8 were impleaded on their application under Order I Rule 10 of Civil Procedure Code, 1908 (for short, C.P.C.) in I.A. No. 716 of 2010, dated 26.04.2010, and they also filed written statement, leave about the contesting defendants 1 to 6, the original parties. It is while so, when the Suit trial was commenced after framing the issues, including after defendants 7 and 8 were impleaded supra and P.W.1 evidence in- chief filed, and coming for cross-examination, by defendants 1 to 5 supra, who are the revision petitioners, filed I.A. No.148 of 2011 to receive the additional written statement on their behalf under Order VIII Rule 9 of C.P.C. On contest of the plaintiffs as well as the other defendants, the application was ended in dismissal, by order of the learned VIII Additional District Judge, dated 01.07.2011, it is pending in this revision, there is a stay of trial proceedings and the order reads that the suit for partition and separate possession, after

¶3

defendants 7 and 8 were impleaded as parties and the plaint was permitted to be amended and they are also claiming as legal heirs of late Sathaiah for entitlement to the share in the suit property though it is the claim of the plaintiffs that the said Sathaiah died and they are nearest legal heirs entitled to share in the property along with, leaving behind the plaintiffs and defendants 1 to 6 and Defendants 7 and 8 are no way concerned. The additional written statement sought by the defendants 1 to 5, covered by the impugned order dismissing the petition, is that they are the only legal heirs, much less the plaintiffs and defendants 7 and 8. The learned trial Judge dismissed the application by opining that there are latches on the part of defendants 1 to 5 in taking additional plea. In fact this additional plea, on its face even appears, arisen as a subsequent even from defendants 7 and 8 coming on record and contesting as legal heirs of late Sathaiah. The lis revolving around in Sathaiah, to decide among the plaintiffs and defendants as to who are legal heirs and to which share, if they are at all entitled, since died intestate. It is needless to say in a suit for partition among the sharers, it makes no difference where the plaintiffs or defendants as are all entitled to the relatives at par with defendants. Thereby the requirements of counter claim of defendants like the other suits are fall into the partition suits.

¶4

From this, now coming to the order impugned,

¶5

dismissing the petition as there are latches on the part of the petitioners on filing of the additional plea under Order VIII Rule 9 C.P.C. is concerned, the law is fairly settled by the expression of the Apex Court, in Olympic Industries v. Mulla Hyssainy Bhai Mulla Akberally and others^[1] , that for any reason existing or to the original pleadings including by additional counter or written statement under Order VIII Rule 9 C.P.C. within the purview of Order XI Rule 17 as pleading amendment, mere delay is not a ground for dismissal unless it is shown any prejudice being caused to the opposite party from the plea taken. It is also observed that there is no bar for the defendants concerned to take even an in consistent defence or new pleading, though such concession not available to the plaintiffs. The two other expressions in Baldev Singh and others v. Manohar Singh and anothe r^[2] and Rajesh Kumar Aggarwal and others v. K.K. Modi and others^[3] also almost on the similar lines and it was also observed that the Court is entitled to consider the subsequent pleadings and any additional pleadings in other counter can be allowed and amendment of pleading discretion is there on the ground to exercise unfettered where it appears to be just and proper. Thereby taking into consideration of these facts, the petitioners – defendants 1 to 5 are permitted to file additional written statement.

¶6

Accordingly, the revision is allowed by setting aside

¶7

the dismissal order of the learned trial Judge, however, subject to costs of Rs.2,000/- (Rupees two thousand only) to the plaintiffs. The revision petitioners shall pay to the plaintiffs or for the plaintiffs to deposit the said costs within (15) days from today and file proof before the trial Court, failing which the revision order ceases its force, upholding the trial court’s dismissal order.

¶8

Needless to say the suit is of 2007 and for partition. The trial Court shall make every endeavour, needless to say, without prejudice to the other preferential matters including those already covered by superior Courts direction for expeditious disposal.

¶9

DR.B.SIVA SANKARA RAO, J

¶10

Dt.13.08.2014 bv

¶11

[1] 2010(1) SCJ 919

¶12

[2] (2006) 6 SCC 498

¶13

[3] (2006) 4 SCC 385

Burremolla Kumar, v. Burremilla Dayanand died per L.Rs

Case brief

What is this about?

What did the court decide?

Burremolla Kumar, v. Burremilla Dayanand died per L.Rs

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Padakanti Venkateshwarlu, Vs The State of Telangana

Anaparthi Rama Krishna, Vs The State of Andhra Pradesh

Smt U.Padma Vs State of Telangana Through Si of Police

Mrs. Ravinder Kaur, Vs M/s. Kamala Computers (p) Ltd., rep by its managing

Devireddy Jayaramudu, Vs The State of A.P.

Champa Lal Rawal, Vs State of Telangana through Ccs Hyderabad Ps