Writ Petition No. 41722 of 2017 · The High Court
Case Details
- 1 - NC: 2025:KHC:19808 WP No. 41722 of 2017 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA WRIT PETITION NO. 41722 OF 2017 (GM-CPC) BETWEEN: SRI.M.N.SHRINIVAS AGED ABOUT 48 YEARS, S/O LATE NANJAPPA, R/AT NO.19, 'GAVI RANGANATHASWAMY NILAYA', BEHIND HACHUTH BUILDERS, 7TH MAIN ROAD, NANJAPPA GARDEN, MALLATHAHALLI, BANGALORE-560056. (BY SRI. C.M. NAGABUSHANA., ADVOCATE) …PETITIONER Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA AND:
Legal Reasoning
1. SRI. M.N. VIJAYAKUMAR @ M.N.KUMAR AGED ABOUT 55 YEARS, S/O N.NANJAPPA, RESIDENTS OF MALLATHAHALLI VILLAGE, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. 2. SMT. NAGARATHNA AGED ABOUT 47 YEARS, W/O M.N.VIJAYAKUMAR @ M.N.KUMAR, RESIDENTS OF MALLATHAHALLI VILLAGE, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056 3. SRI.M.K.NAVEEN KUMAR AGED ABOUT 29 YEARS, - 2 - NC: 2025:KHC:19808 WP No. 41722 of 2017 HC-KAR W/O M.N. VIJAYAKUMAR @ M.N.KUMAR, RESIDENTS OF MALLATHAHALLI VILLAGE, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. 4. SRI. SOMASHEKAR AGED ABOUT 27 YEARS, W/O M.N. VIJAYAKUMAR @ M.N.KUMAR, RESIDENTS OF MALLATHAHALLI VILLAGE, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. 5. SMT. MANGALA AGED ABOUT 38 YEARS, W/O M.N.SRINIVASA, RESIDENTS OF MALLATHAHALLI VILLAGE, ITI LAYOUT, NEAR DR.AMBEDKAR COLLEGE, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. 6. SRI.N.S.NAGENDRA AGED ABOUT 27 YEARS, S/O M.N.SRINIVASA, RESIDENTS OF MALLATHAHALLI VILLAGE, ITI LAYOUT, NEAR DR.AMBEDKAR COLLEGE, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. 7. SMT. ANUSUYA AGED ABOUT 37 YEARS, W/O LATE THIMMEGOWDA, RESIDENTS OF MALLATHAHALLI VILLAGE, ITI LAYOUT, NEAR MALLATHAHALLI TANK, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. - 3 - NC: 2025:KHC:19808 WP No. 41722 of 2017 HC-KAR 8. M.T.RAAGHU AGED ABOUT 20 YEARS, S/O LATE THIMMEGOWDA, RESIDENTS OF MALLATHAHALLI VILLAGE, ITI LAYOUT, NEAR MALLATHAHALLI TANK, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. 9. M.T.RAKESH AGED ABOUT 18 YEARS, S/O LATE THIMMEGOWDA, RESIDENTS OF MALLATHAHALLI VILLAGE, ITI LAYOUT, NEAR MALLATHAHALLI TANK, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. 10. M.N.CHANDRASHEKAR AGED ABOUT 42 YEARS, S/O N. NANJAPPA, RESIDENTS OF MALLATHAHALLI VILLAGE, ITI LAYOUT, NEAR MALLATHAHALLI TANK, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056 11. SMT. LEELA AGED ABOUT 35 YEARS, W/O M.N.CHANDRASHEKAR, RESIDENTS OF MALLATHAHALLI VILLAGE, ITI LAYOUT, NEAR MALLATHAHALLI TANK, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. 12. SMT. VENKATAMMA AGED ABOUT 48 YEARS, W/O KRISHNASWAMAY, RESIDENTS OF MALLATHAHALLI VILLAGE, ITI LAYOUT, NEAR MALLATHAHALLI TANK, - 4 - NC: 2025:KHC:19808 WP No. 41722 of 2017 HC-KAR YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. 13. SRI. M.K.MOHANKUMAR, AGED ABOUT 30 YEARS, S/O KRISHNASWAMAY, RESIDENTS OF MALLATHAHALLI VILLAGE, ITI LAYOUT, NEAR MALLATHAHALLI TANK, YESHWANTHAPUR HOBLI, BENGALURU NORTH TALUK, BENGALURU-560056. …RESPONDENTS (VIDE ORDER DATED 09.08.2018, NOTICE TO R1 TO 9, R12 & 13 IS DISPENSED WITH VIDE ORDER DATED 07.04.2025, NOTICE TO R10 & 11 IS HELD SUFFICIENT R10 & 11 ARE SERVED & UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTAED 9.11.2016 PASSED IN O.S.6881/2010 ON I.A.16/2016 FILED BY DEFENDANTS 9 & 10 ON THE FILE OF ADDL. CITY CIVIL AND SESSION JUDGE, BANGALORE AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL ORDER The present writ petition is filed by the defendant No.3 calling in question the order dated 28.10.2016, passed on I.A.No.16 in OS.No.6881/2010, by the Additional City Civil and Sessions Judge, Benagluru1, whereunder the application filed 1 Hereinafter referred to as ‘Trial Court’ - 5 - NC: 2025:KHC:19808 WP No. 41722 of 2017 HC-KAR by the defendant Nos.9 and 10 under Section 151 of Code of Civil Procedure, 19082 is allowed. 2. The relevant facts in a nutshell leading to the present petition are that the respondent Nos.1 to 4/plaintiffs instituted a suit in OS.No.6881/2010 for re-opening the partition dated 23.06.2010 and other reliefs. The defendants entered appearance in the suit and contested the same. The written statement was filed by the defendant Nos.1, 2, 4 to 12. Subsequently, the defendant Nos.9 and 10 filed IA.No.16 under Section 151 of CPC, to permit the defendant Nos.9 and 10 to file the written statement by discarding the earlier written statement. The said application was allowed by the Trial Court. Being aggrieved, the present writ petition is filed by the defendant No.3/petitioner. 3. Heard submissions of learned counsel C.M. Nagabushana appearing for the petitioner. The respondents are served and unrepresented. 4. The primary contention put forth by the learned counsel for the petitioner is that, by filing IA.No.16 the 2 Hereinafter referred to as ‘CPC’ - 6 - NC: 2025:KHC:19808 WP No. 41722 of 2017 HC-KAR defendant Nos.9 and 10 seek to discard the earlier written statement filed by them, which has been allowed by the Trial Court, which is in permissible in law. 5. The submissions of learned counsel for the petitioner has been considered and the material on record has been perused. The question that arises for consideration is ‘Whether the order passed by the Trial Court allowing the IA.No.16 is liable to be interfered with?’ 6. The relevant facts are undisputed in as much as in a suit filed by the respondent Nos.1 to 4, the defendant Nos.1, 2, 4 to 12 filed written statement. It is forthcoming from the record that each of the said defendants has also filed a verifying affidavits in support of the written statement, apart from signing the written statement. 7. Subsequently, the defendant Nos.9 and 10 filed IA.No.16 under Section 151 of CPC., to permit them to file a written statement by discarding the earlier written statement. It is disposed in the affidavit accompanying the said application that the alleged written statement got filed by the defendant No.3 by playing fraud on the defendant Nos.9 and 10. The Trial - 7 - NC: 2025:KHC:19808 WP No. 41722 of 2017 HC-KAR Court considering the said application recorded a finding that in view of the allegation by the defendant Nos.9 and 10 that fraud has been committed by defendant No.3, IA.No.16 was allowed, the earlier written statement filed by the defendant Nos.9 and 10 were ordered as withdrawn and defendant Nos.9 and 10 were permitted to file their written statement. 8. The Hon'ble Supreme Court in the case of Modi Spg. & Wvg. Mills. v. Ladha Ram & Co.3, has held as follows; “10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court.” (emphasis supplied) 9. A Co-ordinate bench of this Court in the case of Revansiddappa and Others Vs Siddaramappa4, relied upon by the learned counsel for the petitioner as held as follows; 3 AIR 1977 SC 680 4 ILR 2005 KAR 2806 - 8 - NC: 2025:KHC:19808 WP No. 41722 of 2017 HC-KAR “2. The only question to be considered by this Court in this petition is whether under order 8 Rule 1 of CPC the defendant can replace the written statement already filed by them. In the entire CPC, there is no provision to replace the written statement once filed by the parties. If the defendants are so willing to incorporate or add a new paragraph or new events, they can do so by filing an application under order 6 Rule 17 of CPC. In the circumstances, I do not find any reasons to interfere with the orders passed by the Trial Court.” (emphasis supplied) 10. It is the contention of the learned counsel for the petitioner that in the earlier written statement the said defendant Nos.9 and 10 have admitted the partition dated 23.06.2010 and by virtue of the impugned order passed by Trial Court on IA.No.16, the said admission will stand withdrawn. 11. It is forthcoming from aforementioned factual and legal position that once a defendant files a written statement, the same cannot be permitted to be withdrawn. However, the defendant can be permitted to amend the written statement by setting up the circumstances under which such an amendment is sought. - 9 - NC: 2025:KHC:19808 WP No. 41722 of 2017 HC-KAR 12. In view of the discussion made about the question framed for consideration is answered partly in the affirmative. Hence, the following:
Decision
ORDER i. The above petition is allowed; ii. The order dated 23.06.2010 passed in IA.No.16 in OS.No.6881/2010 by the Additional City Civil & Sessions Judge, Bengaluru, is set aside; iii. IA.No.16 filed by the defendant Nos.9 and 10 in OS.No.6881/2010 on the file of Additional City Civil & Sessions Judge, Bengaluru, is dismissed, reserving liberty to the said defendant Nos.9 and 10 to seek for amendment of their written statement. If such an application for amendment is made, the Trial Court shall consider the same in accordance with the law. Sd/- (C.M. POONACHA) JUDGE SRK List No.: 1 Sl No.: 46