IN THE HIGH COURT or KARNATAKA AT EANGALORE
DATED THIS THE 15*" DAY OF SEPTEMBER, 201o__
BEFORE
THE HONBLE MR. JUSTICE A.N. vENuGoPAI.A:----Go'fwo§. '
WRIT PETITION No.22586,/~2.of;Q (t3.f~?1}V'C'E--(f3}'."'
BETWEEN:
Smt. Lakshmamma,
W/o. Rajappa,
Aged about 53 years, __
Residing at MaruthEnag'ar.g_
Kamakshipalya, ~ r
Bangalore -- 560 079. '- _ __
V j 1 PETITIONER
(By Sri C.Pral§~aS?I..ggyIAdv:;._) :
1. MucId.a.«. V _
Aged a--b4_out_ 53 _years.
2. ,|\i§arayana, 'T
V-Agar:-T..a bout 48' years.
3; f fgsh.afr~..k;a
' ._ ".4\gea' «a_E:ou{;'38 years.
_ 4. iV§ara'i.ahv,';
--" m' V,
Agedabout 41 years.
Ciiikkaiah,
. Aged about 31 years.
I0
Respondents 1 to 5 are the
Sons of late Chikkanna @ Chikkaiah,
All are residing at Kithanahaiir,
Dasanapura Hobii,
Neiamangaia Taiuk,
Bangalore District.
6. Chikkathayamma,
W/o. Kernpanna, ..
Since dead by her L.R
6(a) Munirathnarnma,
D/o. Kempaiah,
Aged about Bityears. .4 .
7. Dayananda,
S/o. Kempaiah, 1
Aged abog.-t”Z133/ears. =:
8. Hanum€anti.ia_.V
S/o. Kerdpa~!ahn, 3 V
Agedi’abo;iit 22″Ty’ears.éV”‘
9. Puttamma, ‘ _ ‘ .
D/o. K’empaia’i:_, ” , ..
Aged about 21. .3/ea’rs.”‘
are residinVg”a’t”i\Vio.72/2,
‘n,I1I Cros.s,”Thimmenahaiii,
‘*_8adgakxé;356oo79.
, ., to, , u.RESPONDENTS
(By Sr: T.C.-Sathish Kumar, Adv. for R1 to R5;
ser’vice=..’of “notice to R6 dispensed with)
This writ petition is filed under Articles 226 and 227
‘CfoAfVt’h~e Constitution of India praying to quash the order
dated’ 18.6.2010 on I.A.No.10 in O.S.No.32/2009, on the
fiie of the Civii Judge (Sr.Dn.) at Neiarnangaia, vide
Annexure — D and consequently allow I.A.No.1O in the
above said suit. T
This petition coming on for preliminary y’:Bf«
group, this day the Court made the following:__’–*.. _
Petitioner/plaintiff has iinstittiteid :V’a.gainis.t
respondents/defendants forth “partition of i’suiiti._:”sc.hedule’V.i’
property by metes and i3ounds?’an_d=to put pyiaintiffs in
possession of their ‘mesne profits.
Respondent/defendants”haye statement and
have conte_ste:d’ iweieiiframed and trial has
taken under Order 6 Rule
17 or the court to amend the
plaint, toiiminicvh filed objections. The trial
court’ upon co’n.s_iderat’ion, has rejected LA No.10 on the
amendment of plaint is unnecessary for
of the case. Said order has been
quéstioriedin this writ petition.
V ” 2.” Sri C.Prai<ash, iearned advocate appearing for
–‘ petitioner contends that, the trial court has not
i “considered {A No.10 in the correct perspective and if the
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impugned order is allowed to remain, the same would
cause compiications while executing the decree, “case
the plaintiff succeeds in the suit. Learned counsel.’.,su_bi_%ii_t’s.,
that, there being no change of cause o_f…Ei_A4¢tiQ’r::A./zcr
nature of suit and the amendment
regard to schedute of the suit propelrt-ies ¢on%.,=_-authors,
described, ought to haveV”i’a»..:been as the
mistake/omission account of the
factors stated in the of LA No.10.
Learned coun’s’et,:,subn1its, order is
irrational u V’ V l
it i.Sri teamed counsel
appearing for the_’r–esp_on’dents, on the other hand submits
suit v\ra’s”i”n*st’ituted in the year 1997, trial of the
suit”ifs”-com’piet’e, certain admissions have been elicited
the7.,_cross~examinatiori of the witnesses of the
“.__plaEntiffs”:with regard to non–mentioning of the boundaries
schedule properties and the appiication, if were to
be atlowed, would cause serious prejudice to the
be.
defendants. Learned counsel submits that, trial court has
correctly considered LA No.10 and the impugned’Ior.der”‘rin
the facts and circumstances of the case is just*..’::”
4. Having heard the learnedi
sides, I have perused the record ol’b’the*.writ petlition’. if K
5. By the proposed the
boundaries of the p’rop.e’rt.ies only been
proposed to be iyncorporatvedy. 1Sri::Pra~lt.aAs:h,,..learned counsel
appearing 11.08.2010 that,
the any further evidence
with Keeping the said
submission’-in’ the writ petition was ordered
to the resp4o”ndents. ‘”Having considered the matter, I am
,.,.,sat’isfied’p’.that, the pétitiyon deserves to be allowed, since the
.._,tria’.litceu’rt;%w’hi:e:’_jrejecting the prayer in LA No.10 has failed
toie;~terc,i.::e’_ jurisdiction vested in it by law and faiiure to
“-.so exercise it, has occasioned possible failure of justice.
V.’-V’jI’ri_al:’A”Court has failed to notice that, the plaintiffs have not
ciianged the cause of action or the nagre of the suit.
/K
Further they have now undertaken not to seek re–opening
of the case and lead further evidence with regard ;to_ the
amended scheduie of the plaint.
6. In the circumstances, the erro~r’r”‘cor:nmi’t.tedV “= V
the trial court is liable to be corrected, ,,f1’Th«ere.’a-ppears
be negligence on the part of-.._p|aintif,_fs) in
boundaries of the suit schedule.,:properti’es:in the plaint.
The location of the suitfterns p~-r_opert_ies, their survey
number and extent been “.imerit.io’ned, but the
boundaries of’: each item _of».o’roV’p’er’ties has not been
stated{bV”‘lihei’ .co«:,r_’ld _haVvVe sought an amendment
eariierxAaiso«.g ‘Bu’t,fjVtlhe..:’drel’ayed application having not
brought anychangfe ei-thiélr in the cause of action or in the
‘-v.,n§tur:e of suit andéinview of the undertaking on the part of
étogseek reopening of the case to lead further
matter, no prejudice as such would be
“-.caused the defendants/respondents. In my opinion, the
V”:V’propo.3ed amendment is necessary for the purpose of
K’—..’mvb’r§inging to the fore the real question in controversy
E;
between the parties and the refusal to permit the
amendment would create needless complications at the
stage of finai decree proceedings in the eventviof-.._:lt~he
plaintiff/petitioner succeeding in the suit.
order in the said view of the matter,,i,s_ irratioha-leaFifi-iiVlega.iV” ”
and hence, is unsustainable.
In the result, the pet-i_tdio.n stands’ _alli~owed;’VwV “The ” it
impugned order StandS.C[UaSVAhe{i:.”‘–.LA No.’IO..fii,e’d in the
COLil’t below stands ailo\uivetd,~ fito.?_t.h:e’»»plaintiffs paying
cost of Rs.5,00,Q/”–.__to th’e”‘defend.a}ntsV’-in,.the trial court on
the next’
Ting’weeks_ti’nfie:’i’s~eliowed for payment/depositing of
the cost and f_orvca;–rry?i.ng””out of the amendment, in terms
“prayer i’n_I.A’i\lo’;”1’O. Payment of cost is a condition
,__’p’receden.t:foVriwcairrying out the amendment.
A No as to costs in this writ petition.
561/*3?
Tudgé
la»