Shivabasavva vs Gourawwa

H. Billappa, J.—In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioners have called in question the order dated 08.01.2014 passed by the trial Court in O.S. No. 18/2012 on I.A. No. IV vide Annexure-G.

By the impugned order at Annexure-G, the trial Court has rejected I.A. No. IV filed by the petitioners for amendment of the written statement.

Aggrieved by that, the petitioners have filed this Writ Petition.

Briefly stated the facts are; The first respondent has filed suit in O.S. No. 18/2012 for partition and separate possession of the suit schedule properties. The defendant No. 1 has filed her written statement denying the plaint averments and contending that the suit schedule properties are joint family properties. It is denied that B-schedule properties were purchased by the plaintiff and defendant Nos. 7 and 8 out of the profits earned by the partnership firm. It is prayed to award 1/9th share in all the suit schedule properties to the defendant No. 1 also. Defendants 2 to 5 i.e., the petitioners herein have filed their written statement supporting the claim of the plaintiff and they have prayed to decree the suit.

Thereafter, on 10.01.2013, the defendant No. 8 has filed the written statement denying the plaint averments and contending that there was a family partition and the plaintiff is not entitled for any share in the suit schedule properties.

The petitioners have filed I.A. No. IV praying to permit them to amend the written statement seeking alternative relief in respect of the suit B-schedule properties. If the court comes to the conclusion that the suit B-schedule properties were not purchased out of the income of the partnership firm, but purchased out of the income of the suit A-schedule properties i.e., joint family properties, then, defendants 2 to 5 are entitled for their legitimate share. The trial Court by its order dated 08.01.2014 has rejected the application. Therefore, this writ petition.

The learned counsel for the petitioners contended that the impugned order cannot be sustained in law. The trial is yet to be commence and the petitioners are wanted to amend the written statement seeking alternative relief which is permissible in law. Therefore, the impugned order cannot be sustained in law.

The learned counsel for the first respondent submitted that she has no objection to allow the application.

The learned counsel for the respondent No. 8 submitted that the trial Court has rightly rejected the application on the ground that there is a clear admission by the petitioners that suit B-schedule properties were out of the income of the partnership firm and therefore, the impugned order does not call for interference.

I have carefully considered the submissions made by the learned counsel for the parties.

The point that arises for my consideration is:

� Whether the impugned order calls for interference?

It is relevant to note, the first respondent has filed the suit in O.S. No. 18/2012 for partition and separate possession of the suit schedule properties. The defendant No. 1 has contended that the suit schedule properties are joint family properties. It is denied that B-schedule properties were purchased by the plaintiff, defendant nos. 7 and 8 out of the profits earned by the partnership firm. The defendant No. 8 has contended that there was a family partition and the plaintiff is not entitled for any share in the suit schedule properties. It is denied that suit B-Schedule properties were purchased by the plaintiff and defendant Nos. 7 and 8 out of the profits earned from the partnership firm. Thereafter, the petitioners have filed I.A. No. IV for amendment of the written statement by adding the proposed amendment to the effect that in case, if it is held, that the suit B-schedule properties were not acquired out of the firm''s income but acquired out of the income of the joint family, then, the defendant Nos. 2 to 5 i.e., the petitioners herein are entitled for their legitimate share in the suit B-schedule properties also. The trial Court has rejected the application. The trial is yet to commence. The petitioners are defendants. Having regard to the nature of the pleadings, the proposed amendment for alternative relief needs to be allowed. The other parties will not be prejudiced in any way by allowing the proposed amendment. Therefore, the impugned order cannot be sustained in law.

Accordingly, the writ petition is allowed and the impugned order passed by the trial Court on I.A. No. IV is hereby set aside. I.A. No. IV is allowed the petitioners are permitted to amend the written statement as prayed in the application.