SMT JYOTHI R v. KUM AISHWARYA

(BY SRI PRAVEEN HEGDE & SRI.P.DHANANJAYA, ADVOCATES) AND : 1 KUM AISHWARYA D/O LATE KOTRABASAPPA C IRANI AGED ABOUT 8 YEARS, MINOR REPRESENTED BY NATURAL GUARDIAN MOTHER 3RD RESPONDENT R/AT VOKKALIGARAPET DAVANGERE CITY. 2 MASTER SAMPATHKUMAR S/O LATE KOTRABASAPPA C IRANI AGED ABOUT 6 YEARS, MINOR R/BY NATURAL GUARDIAN MOTHER 3RD RESPONDENT, R/AT VOKKALIGARAPET DAVANAGERE CITY 3 4 5 6 7 2 SMT. MANJULA D/O LATE KOTRABSAPPA C IRANI AGED ABOUT 34 YEARS R/AT VOKKALIGARAPET, DAVANGERE CITY SRI. BAKKESH C IRANI S/O IRANI CHANDRASHEKHARAPPA AGED ABOUT 36 YEARS R/AT VOKKALIGARAPET DAVANGERE CITY SMT. GANGAMMA W/O LATE DEVARAMANE MANJUNATH AGED ABOUT 49 YEARS R/AT C/O LATE IRANI CHANDRASHEKHARAPPA VOKKALIGARA PET DAVANAGERE SMT. SUDHARAMANI W/O TAMMANNAPPA AGED ABOUT 47 YEARS R/AT NO. 647/A, III CROSS RPNN ROAD MYSORE-21 SMT. SHAILASHRE W/O SOMASHEKHARA IMV RTO OFFICE KOPPALA ...RESPONDENTS ( BY SRI ASHOK R.KALYAN SHETTY, ADVOCATE FOR R1-3 SRI. M V REVANA SIDDAIAH, ADVOCATE FOR R4-7) ***** THIS WP FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.9.2010 ON IA.NO.13 IN OS.NO.28/09 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, DAVANAGERE, VIDE ANNEXURE -F AND ETC. 3 THIS WP COMING ON FOR PRELIMINARY HEARING 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER In a suit filed by the respondents 1 to 3 for partition and separate possession, an application under Order 6 Rule 17 of CPC was filed by the 4th defendant seeking amendment of the written statement, which came to be dismissed. Hence, the present writ petition.

By the application what is sought to be amended is as follows: “2. In page 2 at para 7 of the w/s of defendant No.4 at 8th line (3rd line from the bottom) after the words other all allegations are not the word “admitted” is to be deleted and in its place “known” to be added.

In page 3 at para 8 in 2nd line after the word ‘not’ ‘admitted’ by this defendant but denied as false’ to be deleted and in its place ‘within her knowledge’ to be added.

So also, in page 3 at para 9 in second line of w/s after the word ‘ are also not’ the following 4 words to be deleted ‘admitted but specifically denied as false’ in its place the following words to be added ‘within her knowledge’.”

3. The trial Court was of the view that the amendment is not necessary to decide the dispute between the parties. That by virtue of the said amendment, the defendant intends to withdraw the admissions made in the written statement and hence, rejected the application.

4. The learned counsel for the respondents defends the impugned order. They submit that the provisions of Order 6 Rule 17 have not been complied with. That there is a failure to show due diligence and the amendment sought for will affect the nature of the suit. It is further submitted that the main reason to file the application is to protract the proceedings and to cause delay in disposal of the suit. Hence, they pray for dismissal of the writ petition.

On hearing the learned counsels for the parties, I ‘am 5 of the considered view that appropriate relief requires to be granted. In sum and substance, what is sought to be amended is from the words ‘admitted’ to ‘known’. The present suit is one for partition. That the husband of the 3rd plaintiff is the brother of the 4th defendant and the 3rd plaintiff is their sister. Therefore, notwithstanding the admission or otherwise so far as the subject matter of the suit is concerned, the trial Court has to work out the shares of the parties and determine the same. The admissions with regard to the allegations of marriage, etc and even if the contentions of the respondents have been accepted, it will not come in the way of disposal of the suit. The suit is one for partition. Consideration of suit for partition has no nexus with the factum of marriage or otherwise so far as the present suit is concerned. Hence, the admission made does not in any manner affect the disposal of the suit.

It is further contended that the matter is listed for cross-examination of PW-1 and at that stage, the application is filed. In terms of Order 6 Rule 17, since the trial is commenced without showing due diligence the application cannot be allowed. 6

On perusal of the affidavit, it discloses that after filing of the written statement, the 4th defendant found some mistakes due to oversight and typographical error and by mis- conception in communication, the said mistake may impart some confusion. Hence, he filed an application for amendment.

For the reasons stated in the affidavit, I ‘am of the considered view that the petitioner has shown due diligence inspite of which the amendment could not have been filed at the earlier point of time. Even otherwise as observed herein above, irrespective of allowing or dismissal of the application, the rights of the parties are not affected.

For the aforesaid reasons, the writ petition is allowed. The order dated 14.09.2010 passed on I.A.No.13 in O.S.No.28/2009 by the II Additional District and Sessions Judge, Davangere is set aside. IA No.13 filed by the petitioner herein is allowed. 7 The suit is of the year 2009. Hence, I deem it just and proper to direct the trial Court for early disposal of the suit. The trial Court is directed to hear and dispose off the suit by the end of October 2012. Sd/- JUDGE Prs*