M. Beerappa vs Narayanappa Major and Others

Aravind Kumar, J.—1. Heard Sri. Dhananjay Vidyapati Joshi, learned Counsel appearing for petitioner and Sriyuths V. Vishwanath Shetty, learned Counsel appearing for R1 & R2 (a & b), Praveen H.R., learned Counsel appearing for R3, R5 (b, d & e), Krishna Murthy, learned Counsel appearing for R4 (a to d) & R6, Kempegowda, learned Counsel appearing for R5 (a), Srinivasa, learned Counsel appearing for R7, S.N. Manjunath, learned Counsel appearing for R9, B.K. Chandrashekar, learned Counsel appearing for R1. Notice to respondent Nos. 5(c), 5(f) and 8 have been dispensed with.

Perused the records.

Parties are referred to as per their rank in trial Court.

Writ Petitioner is the 2nd defendant in O.S. No. 728/2002, which suit came to be filed by respondent No. 1 and Sri. Munikrishnappa [being arrayed as plaintiff No. 2 since deceased by LRs 2(a) & 2(b)] for partition and separate possession of the suit schedule properties. 2nd defendant appeared, filed his Written Statement as per Annexure-C and has denied the averments made in plaint and it has been specifically contended that on the death of original propositus Sri. Hotteppa, his sons Muniswamappa and Muniyappa had divided the joint family properties orally in the year 1979 and subsequently it was reduced into writing in the year 2002 and said document was also duly registered in the office of the Sub-registrar, Hosakote on 11.03.2002 and as such, the members of the respective branches have been in exclusive possession and enjoyment of the properties allotted to them under the said deed of partition.

When the matter was pending for trial, suit came to be dismissed for default on 17.01.2011 and a Miscellaneous Petition came to be filed by Plaintiffs in Misc. P. No. 13/2011 and during its pendency plaintiffs'' are stated to have submitted before said Court that plaintiffs intend to divide the property allotted to the share of Muniswamappa under partition deed dated 11.03.2002 and as such, they submitted for suit being restored. Accordingly, suit came to be restored on 10.06.2014. Immediately thereafter plaintiffs have filed I.A. No. 5 seeking amendment of the plaint, whereunder they sought for deletion of the properties which was allotted to the share of Sri. Muniyappa or in other words, the properties which did not belong to the branch of Muniswamappa were sought to be deleted from the schedule, contending inter alia that said properties had been included by oversight and mistake. Trial Court by order dated 13.06.2014 allowed the application and permitted the plaintiffs to carry out the amendment and infact, on 17.06.2014, the date which was fixed by the trial Court for amendment being carried out, plaintiff filed amended plaint whereunder they had deleted the properties which had fallen to the share of Muniyappa''s branch.

However, by reasons best known, compromise inter se between plaintiffs which was proposed to be entered i.e., amongst the family members of the plaintiffs did not see light of the day or it did not materialize. Hence, plaintiffs intending to resile from the contentions raised in I.A. No. 5 they sought to include the properties which had been deleted in the plaint on their prayer and sought for being included in the plaint schedule amongst other properties by filing interlocutory application I.A. No. 6. This application was resisted to by the Writ Petitioners by filing Statement of Objections, as per Annexure-K. Trial Court after considering the rival contentions, by impugned order dated 09.09.2015 (Annexure-A) has allowed the application on the ground that compromise petition filed by plaintiffs'' (inter se amongst plaintiffs) had not been accepted or recorded and it had directed for continuation of the suit and also on the ground that amendment which is sought for in I.A. No. 6 is necessary to determine the points in dispute and as such, I.A. No. 6 came to be allowed. It has been further held that additional pleading relates to the will and wish relating to the suit schedule property.

It is contended by the learned Counsel appearing for petitioner that Trial Court has not examined the objections filed to the application for amendment viz., contending that an admission made in a pleading cannot be withdrawn to the detriment of the Writ Petitioner i.e., 2nd defendant and as such, the application for amendment ought not to have been allowed and on account of same, he seeks for rejection of the application by allowing the Writ Petitions and quashing of impugned order.

Though learned advocates initially supported the impugned order, they have been fair to state before this Court that objections raised to by the Writ Petitioner i.e., 2nd defendant has not been dealt with or examined in detail by trial Court and as such, they pray for suitable orders being passed by this Court.

Taking into consideration the pleadings that is available on record and also the fact that a detailed statement of objections was filed to I.A. No. 6 by the Writ Petitioner-2nd defendant contending inter alia that application for amendment should not have been allowed on the grounds urged in the objections statement and same having not been examined, considered and adjudicated by trial Court, it would be apt and proper to remand the application (I.A. No. 6) back to the trial Court for adjudication afresh by quashing the impugned order.

In the light of the aforesaid facts, I proceed to pass the following:

"ORDER

(i) Writ Petitions are hereby allowed.

(ii) Order dated 09.09.2015 - Annexure-A allowing I.A. No. 6 filed by the plaintiff under Order 6 Rule 17 CPC is set aside and I.A. No. 6 filed by the plaintiff under Order 6 Rule 17 CPC Annexure-J is restored to the file of the 2nd Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru adjudicating O.S. No. 278/2002 to hear said interlocutory application (I.A. No. 6) by taking into consideration objections filed to the said application-Annexure-K and dispose of the same by a considered and speaking order after delving upon the contentions raised.

(iii) It is made clear that prayer for amendment of the plaint having a direct bearing on continuation of further proceedings, trial Court shall at first instance adjudicate and dispose of I.A. No. 6 expeditiously at any rate within three weeks from the next date of hearing and till then shall not take up further proceedings or till the disposal of I.A. No. 6."

Ordered accordingly.