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
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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.
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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
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. 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
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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
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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,’.
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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.
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