Writ Petition No. 11901 of 2019 · The High Court
Case Details
- 1 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.11901 OF 2019 (GM-CPC) …PETITIONER BETWEEN: SRI. G.H.YOGANANDA S/O LATE CHIKKA HANUMEGOWDA, AGED ABOUT 56 YEARS, RESIDENTS OF GORAVALE VILLAGE, DUDDA HOBLI, MANDYA TALUK – 571 405. (BY SMT. S. AISHWARYA FOR SRI. RAJESWARA.P.N, ADVOCATES) AND: Digitally signed by PAVITHRA B Location: HIGH COURT OF KARNATAKA 1. 2.
Legal Reasoning
SMT. BHAGYAMMA W/O LATE RENUKAPPA, AGED ABOUT 53 YEARS, SMT. ASHWINI D/O LATE RENUKAPPA AND W/O. NAGESH AGED ABOUT 34 YEARS, RESIDENT OF SATHANUR VILLAGE, KASABA HOBLI, MANDYA – 571 428. 3. SMT. NANDINI D/O LATE RENUKAPPA AND W/O VIJAYA KUMAR - 2 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR AGED ABOUT 30 YEARS, R/O MOGA HALLIDODDI VILLAGE, KASABA HOBLI, CHANNAPATNA TALUK, RAMANAGARAM DISTRICT – 571 428. 4. SRI G.K. SANDEEP S/O LATE RENUKAPPA, AGED ABOUT 28 YEARS, RESPONDENTS NO.1 TO 4 ARE RESIDENTS OF GORAVALE VILLAGE, DUDDA HOBLI, MANDYA TALUK – 571 405 5. 6. SRI. G.H.NAGESHA S/O LATE CHIKKA HANUMEGOWDA AGED ABOUT 51 YEARS, RESIDENTS OF GORAVALE VILLAGE, DUDDA HOBLI, MANDYA TALUK – 571 405. SMT CHANNAMMA @ JAYAMMA D/O LATE CHIKKA HANUMEGOWDA, W/O PUTTASWAMY GOWDA, SINCE DECEASED BY HER LRS 6(a) PUTTASWAMY GOWDA S/O LATE BOREGOWDA, AGED ABOUT 86 YEARS, R/AT SHIVAHALLI VILLAGE, DUDDA HOBLI – 571 405, MANDYA TALUK. 6(b) DR. H. PRAKASH S/O LATE CHENNAMMA, AGED ABOUT 59 YEARS, R/AT NIVEDITHA NURSING HOME ASHOK NAGARA, MANDYA CITY – 571401. - 3 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR 6(c) VIJAYA W/O NINGARAJU AGED ABOUT 57 YEARS, R/AT SHIVAHALLI VILLAGE, DUDDA HOBLI, MANDYA TALUK – 571 405 6(d) SUDHA D/O LATE CHENNAMMA AGED ABOUT 55 YEARS R/AT GORAVALI VILLAGE, DUDDA HOBLI, MANDYA TALUK – 571 405. 6(e) VASU S/O LATE PUTTASWAMY GOWDA AGED ABOUT 53 YEARS R/AT SHIVAHALLI VILLAGE, DUDDA HOBLI, MANDYA TALUK – 571 405. 6(f) GOPI S/O LATE PUTTASWAMY GOWDA AGED ABOUT 51 YEARS R/AT SHIVAHALLI VILLAGE, DUDDA HOBLI, MANDYA TALUK – 571 405. 6(g) PADMA W/O KRISHNAPPA AGED ABOUT 49 YEARS R/AT KEMPAIAHNA HUNDI VILLAGE, T NARASIPURA TALUK, MYSORE DISTRICT – 571 124. 6(h) CHANDHU S/O LATE PUTTASWAMY GOWDA AGED ABOUT 48 YEARS R/AT SHIVAHALLI VILLAGE, DUDDA HOBLI, MANDYA TALUK – 571 405. - 4 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR 6(i) GEETHA W/O PRAKASH AGED ABOUT 45 YEARS R/AT GORAVALI VILLAGE DUDDA HOBLI, MANDYA TALUK – 571 405. 7 8 SMT. GAYITHRAMMA @ SHARADAMMA D/O LATE CHIKKA HANUMEGOWDA AGED ABOUT 60 YEARS, R/O KERAGODU VILLAGE, KERAGODU HOBLI, MANDYA TALUK – 571 446. SMT. VEENA D/O LATE CHIKKA HANUMEGOWDA AGED ABOUT 47 YEARS R/O HOSABOODANUR VILLAGE, KASABA HOBLI – 571 428 MANDYA TALUK. …RESPONDENTS (BY SRI. L.RAJA ADVOCATE FOR R1 TO R4 R5, R6(a), R6(c), R6(d), R6(e), R6(g), R6(h), R6(i) ARE SERVED V/O DATED 24.01.2020 NOTICE TO R6(b), R6(f), R7 AND R8 IS DISPENSED WITH) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-SET ASIDE THE ORDER DATED 21.01.2019 ON I.A.NO.XI IN O.S.NO.592/2011, ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA (ANNEXURE-A) AND ALLOW THE APPLICATION I.A.NO.XI FILED BY THE PETITIONER IN O.S.NO.592/2011, ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA (ANNEXURE-G) AND ETC., - 5 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking the following prayer: i. SET ASIDE the Order dated 21.01.2019 on I.A. No.XI in O.S.No.592/2011, on the file of Additional Civil Judge and JMFC, Mandya (Annexure -A) ii. ALLOW the application I.A.No.XI filed by the Petitioner in O.S.No.592/2011, on the file of JMFC, Mandya Judge and Additional Civil (Annexure-G) iii. PASS such other order/s including the award of costs, as this Hon'ble Court deems fit under the facts and circumstances of the case, in the interest of justice and equity. 2. Smt. S.Aishwarya, learned counsel appearing for the petitioner submits that the petitioner is defendant No.1 in O.S.No.592/2011. Respondent Nos.1 to 5 filed a suit for partition and separate possession of certain properties claiming to be the children of Sri Renukappa second son of Smt.Gowramma. In the said suit, the - 6 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR petitioners filed a detailed written statement and thereafter, an application is filed seeking direction to include two left out properties in the plaint. The trial Court considered the said application and disposed of the application by granting liberty to the petitioner to incorporate those two left out properties in the written statement by recording the finding in the order dated 08.03.2016. Pursuant to the said liberty, the petitioners filed an application seeking for an amendment of the written statement. The said application was opposed by the respondents. 3. The trial Court without considering the fact that the defendants are also required to be treated as plaintiffs in the suit for partition, ultimately, if the suit is decreed, even the petitioners also would be benefited by the two properties, which are now intended to be incorporated in the written statement. Hence, she seeks to allow the petition by setting aside the impugned order. - 7 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR 4. Per contra, Sri L.Raja, learned counsel appearing for respondent Nos.1 to 4 supports the impugned order of the trial Court and submits that the petitioners have filed the suit in the year 2011. In the year 2012, written statement was filed and belated application was filed in the year 2018 seeking to amend the written statement to incorporate the unrelated properties to the joint family properties and to drag the proceedings and to deprive the legitimate right of the petitioners. Hence, he seeks to dismiss the petition. 5. I have heard the arguments of learned counsel for both the parties and perused the material on record. 6. It is not in dispute that respondent Nos.1 to 5 filed the suit in O.S.No.592/2011 seeking for partition and separate possession of certain properties. In the said suit, the petitioner who is defendant No.1 filed the written statement taking the available defence. The petitioners filed an application under Section 151 of CPC seeking - 8 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR direction to incorporate two left out properties claiming that those two properties are the properties purchased in the name of defendant No.3 by her late husband and those properties are acquired in the name of Smt.Neelamma from the joint family funds. Hence, in the said properties also, defendant No.1 has a share. The said application was duly considered by the trial Court and granted liberty to the petitioner to claim a share in any left out property. The relevant portion of the order is extracted as under: “Admittedly this is a suit for partition and separate possession. In suit for partition and separate possession all the parties who claim share are equal to plaintiff. In the present case the defendant No.1 is also claiming share over the suit schedule property. Under such circumstances if at all any properties are left out by the plaintiff to include in the plaint then the defendant is at liberty to claim share in such property by including those properties in the written statement schedule.” 7. Pursuant to the aforesaid order, the petitioner filed an application to amend the written statement intending to incorporate two left out properties claiming to be the joint family properties. The said application was opposed by respondent Nos.1 to 5. The trial Court - 9 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR considering the same dismissed on the ground that the petitioner claimed in the written statement to declare his share in the suit schedule property, but the same was not in the nature of counter claim. 8. In my considered view, the trial Court has committed a grave error. The trial Court on earlier occasion in the order dated 08.03.2016 has granted liberty to the petitioners to file an application to incorporate the same in the written statement and also recorded the finding that in the suit for partition, defendant No.1 is also required to be treated as a plaintiff for the purpose of adjudication of the said suit. The said finding and order of the trial Court has attained finality. 9. In view of specific order of the trial Court on earlier occasion, rejection of the subsequent application by the trial Court is devoid of merit and perverse. On the said ground alone, the impugned order is set aside. I.A.No.XI filed by the petitioner is allowed subject to petitioner - 10 - NC: 2025:KHC:20390 WP No. 11901 of 2019 HC-KAR paying cost of Rs.5,000/- payable to respondent Nos.1 to 4 for the delay in filing of the application. The petitioner shall file an amended written statement within a period of three weeks. The trial Court is directed to dispose of the suit as early as possible as the suit is of the year 2011. SD/- (VIJAYKUMAR A. PATIL) JUDGE PB List No.: 1 Sl No.: 31