Loading...

Sri M.N. Vasudeva S/O Lt R … vs M.N. Satya Kumar S/O Lt R … on 23 August, 2010

Karnataka High Court
Sri M.N. Vasudeva S/O Lt R … vs M.N. Satya Kumar S/O Lt R … on 23 August, 2010
Author: A.N.Venugopala Gowda
IN THE HIGH COUR? or KARNATAKA AT BANGALORE
DATED THIS THE 23" DAY OF AUGUST, 2010 

BEFORE

THE HON'l3LE MR. JUSTICE A.N. vENuGolé__;\L;§ GjoyLio%A'  

WRIT PETITION No.52o8,~'261o  _  

BETWEEN:

Sr: M.N.VaSudeva,

Aged about 55 years,

S/o. late R.Nanjundaia.=',~.__
R/o. D.l\£o.607,   , ,
Vishvamanava Double Road,
Kuvempunagar,   V
Mysore.   1

   . .     PETITIONER
(By Sri T.N{Rag'hu";3'at.hy,"-Ady';)._  "

AND:

1.

M.N.Savtyal§<;m'1a:-";.',' – V
Aged about '6J,_yea'r_s,"""

35,:/o’. late R.’Na_njundvaiah,
V-Rio.;,_–No.~351, 8″””‘C*ross,

~_Nea_r’ \,/yidyapeeta, Sir M.V.Marga,
_ ,_III.S’ta’g:-1,’Banashankari,
” ._ “‘Ban’g’ai’o..re’¢”56O O85.

_ 2. S’mt;..’Ya’il”emma,

Aged about 85 years,

* by ;W/o.””iate R.Nanjunclaiah,
” , R’/_o. D.No.607,

,_ Vishvamanava Double road,
Kuvempunagar,
Mysore.

the suit can be raised at any time of the proceedings.

Learned counsel submitted that, the suit being one for

partition and separation, each party being both a pia’intiff

and defendant, the prayer in the application

been allowed. Learned counsel submitted

in I.A No.4 could be granted by

rebuttal evidence to the plaintiff in*.or”cler to, mannmsfe

litigation and also to decide the-rielal mattersbdr coingtlroversy
between the parties. .

3. Sri Manmohan lAe’arn~ed advocate

appearii’ngi’for.,ethe resptonde.nt”‘contended that, since the
trial has..commence’d., ‘frso_’f’arn.endment is permissible in view

of proviso its R’ule_3~.7lAo_f ‘ofder 6 C.P.C, which is mandatory.

“V.__AHev-Visbbgnfiittegd th’at’,”—«the jurisdictional fact as envisaged in

‘pto’vi:_sC..’t’o.:Rule 17 of Order 6 having been found to be

tithe trial court is justified in passing the

“.__impug~~net:! order. He placed reliance on the decision of the

A Court in the case of VIDYABAI AND OTHERS VS.

P);\oMALA’rHA AND ANOTHER, reported at (2009) 2 scc

\-

/i

409 and the decision in W.P No.5138/2008 __.dated

i19–0?i.+2Q99-r. Learner? sense’ u§9btmit.tsd I. tr-fatline (I

impugned order is neither irrational nor illegal’:andlp”ii’enc:e–,« *

no interference is called for.

4. I have perused thewrit ‘papers.

5. In view of the rivai;ccntenti’o_ns;e–the.°;point for
consideration is:

Whether the isiirrational

and .;ai’!s inte¢feren’Ce_? ‘ I

6. itolllv-:»th~e written statement
proposedmin” as foiilovws:

rliternatitfely’ defendants submit that in case
thislll’I<{ori7b1e .Co1_1rt…_§vere to come to conclusion that
_; plaintiff isentitled for 1/5"? share in the suit schedule
A apropeiity thenwitlis submitted that each one of these
may also allotted I/5'3' share in all the

-._’plain’t«._sel*1edu1e properties inclusive of the property
mentioned in written statement schedule which is
Cleliioerately excluded by the plaintiff in the suit. As
it .._stated above the written statement schedule property

“is constructed by the funds generously contributed by

the 15* defendant. The requisite court fee is paid.

/’

I’u–

N9-2a In .th.e_ P178??? _C.Q1*.l1’Ii.1¥…,.0f ..t1″1’3._…”_’f’V.1’i.lit.€I1.=.- ,

statement after the words justice and equitjwpthe

following sentences may kindly be permitted’w..t_o._V’be

inserted which is as follows:–

these defendants may also granted l/5″-i’share.einv-.’

all the plaint schedule prolpertiesinfclus-iye

Alternatively it is submitted that_fieach:.A_1onpe of:

written statement schedule property”.

7. The trial court top____rejeet_v_the”apelicaiiion has

held as follows:–

1.

_ ‘However

Whether p’ropei’tyv_ also joint family

or”;not'”or.”it_Vis.”a~::q:uired out of joint

“o’r3′-a,_1ot’-is-. Vth–e__ fnatter for final adjudication.

._ -Ind ‘th–e._v'”eve’ntV'”»of — the defendants succeed in
” V ‘esta’olish;ing”t.l_’_iat the house in Bangalore is also

joint ‘v.faInily~.-‘property, the suit of the plaintiff

‘hayfe to go being one for partial partition.

raising a counter~claim after

d ~vcorn”n1encement of evidence in respect of the said

‘ dfitetn cannot be entertained.

5-3

The proposed amendment is not necessary for

proper adjudication of the matter in dispute

‘E/.

/

‘7

. first is ho digpiieilile. reeseiite reii;.t;o’asi.’lp it

between the parties. The suit is one for partition and

separate possession of the joint family propertiesf.[The

__defendants have stated that in case the court _

that plaintiff is entitled to 1/5″?’ share in th.e–suu’i:t,V

property, then as members of the

entitled for the 1/5″‘ share eiiythe ‘s’te_iV_t”‘scherd’u-éelipropierty

including the written statemen’t’t.:schedule’-p_Vro’perty, which
has been omitted by vl1rt_the«.written statement
it has been stated that, given by
the 15′ building, which
the plai_ntiff~’ in the schedule. Thus it has
been conVter1de’d”e.A:t;h.a’L statement schecluie

prope’rtye..is also ..a_tjointl”iamily property.
The Doytieir under Rule 17 of Order 6 can be

e._e$<e.rcirse:d–.e:Alib4Vetal_i.y prior to the commencement of the trial.

If that despite due diligence the party could not

V'-have ra.i"sed the matter before the commencement of trail

y""xand_ it is also shown that the amendmergwill not work

/'

r'-

which stage an application seeking amendment of the

written statement was filed. I The applicationfrwas

dismissed by the trial court holding that it

new case and the contention that the defendaerits. could not _A V’

gather the materials and informatizzonllnlecessary time’:

of filing of written statement note.g’.iii.ri’t’l”»lir1 ntn’eiVr”-

knowledge. The said order wats:’reversed_V_byt on

the ground that, an ame~n_dm_elnt ‘aVe;VijplVi’ca.tion can be filed at
any stage of the proceeding :’fili.n_g”vAOj’f.i’a_ffidavit by way
of evidence itse~«lf:yj’~is inot; to reject the

appiication led” of written statement.

The said _ordlVe’ir”‘Vwas<setgasidefby the Supreme Court by
holding thVa4t,l,provis'oVA"a.-ifiieiinded to Order 6 Rule 17 of the

Codefre.stricts" power of the court and it puts an

,'e'm_,bargio.A_orivexercise of its jurisdiction and the court's

"'J=uri'sdictio'n.,,.y_in:;"a" case of that nature is limited and unless

the"'juriv.s':cl'ic»t'i'onaI fact, as envisaged therein, is found to be

V. the court will have no jurisdiction at all to allow

'the amendment of the plaint. E

7

| ‘\

M10 .

11. In the decision dated 10.07.2009 in

W.P.N0.S138/2008, which was rendered tai<i:r1gi'~–.l_in«to

consideration the fact situation, it has beer?!

_ court should b_e satisfied that inspyiteof K"

applicant could not have made the iappi'iication_."atV'eiariieif

.. point of time, ..

12. The writtr§n..,.é_sta,te’nj”e–§jj; plea that,
written statement a joint family
property. “i’ij.~e”:’iyfitter:iA__ indicate that the
defendants’ Vlioveir the Banashankari,
Vidya they has not specificaily
prayediufor plea which had been taken

in respectioi’ V_t’he_’said_ property is sought to be amplified

prayer to'”g’r*a’nt 1/5″‘ share inclusive of the written

s’ch:e’diile property. Since the defendants are

rightly for leading of rebuttal evidence by the

“i.,’plainti’ff”*with regard to amended plea and taking into

“:if”‘cons”ideration the relationship of the parties and to

rr;in.imise the litigation, the proposed amendment is

is

4,’.

11

necessary to determine the real tiiuestions in controversy

between the parties. The application ought to havethieren

ailowed by the Trial Court by subjecting the defende’nts__V’:to:_ _

terms. By not doing so, the order passed,–,.:f:irrr’p:Lig.ned:”

herein, is irrational.

In the result, I pass the ‘ V ”

,~,0RDER§;u
i. Writ petition is order rejecting
LA W asmt¢ii;agiiiec,,r.i,i:rr i i
ii. LA iwsebiijiect to petitioner
the plaintiff in the trial
Vucotsrt the amendment within two
_ _ weel<s_:fro to'di'ay§»iV
Aplaiun'tiff*'is'Vg ranted leave to present the written
r. to the counter–claim made by the
d€#é–i.itl:antS in the written statement.
iv." plaintiff shall file the replication/written

statement within two weeks from the date the copy

is.

/’

/J7

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information