ASHOK S/O. GADIGEPPA MADDI vs. SAROJA W/O. VEERASANGAYYA SWAMI

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 2ND DAY OF JANUARY, 2015 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO.78212/2013 [GM-CPC] BETWEEN 1. ASHOK S/O. GADIGEPPA MADDI AGE: 55 YEARS, OCC: SERVICE R/O. SIDDARUD NAGAR, ANAND NAGAR ROAD, OLD HUBLI DIST: DHARWAD 2. VEDAMURTHY S/O. GADIGEPPA MADDI AGE: 47 YEARS, OCC: SERVICE R/O. C/O. E S I HOSPITAL ASHOK NAGAR, BELGAUM 590016 3. GEETA W/O. SURESH KINAGI AGE: 50 YEARS, OCC: SERVICE R/O. C/O. STATE BANK OF INDIA NAVA NAGAR BRANCH, HUBLI 580020 DIST: DHARWAD NOW AT STATE BANK OF INDIA A D B BRANCH, RISALDAR GALLI BELGAUM 590001 4. YASHODHA W/O. RAVINDRABABU AGE: 49 YEARS, OCC: SERVICE R/O. C/O. CANARA BANK ZINDAL NAGAR, TUMKUR ROAD, BANGALORE 5. SHREEHARSHA S/O. GADIGEPPA MADDI AGE: 38 YEARS, OCC: NIL R/O. DESAI ONI, HUBLI 580020 DIST: DHARWAD ... PETITIONERS

: 2 : (BY MISS REKHA PATIL, ADV. FOR SRI. M G NAGANURI, ADV.) AND SAROJA W/O. VEERASANGAYYA SWAMI AGE: 58 YEARS, OCC: TEACHER R/O. BENEATH SOFIA SCHOOL UPPARHALLI TUMKUR 57201 R/B. HER GPA HOLDER SHIR. SAMBHAJI S/O. SOMAPPA KALAL AGED ABOUT:41 YEARS, OCC:BUSINESS, R/O. VAIBHAV APARTMENT, VIDYANAGAR, OLD INCOME TAX OFFICE ROAD, HUBLI. ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD.26.02.2013 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND JMFC, HUBLI IN OS.NO.160/2009 PRODUCED AT ANNEXURE-E. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Defendants’ writ petition calling in question the order passed by the Trial Court allowing the application filed by the plaintiff for amendment of the plaint whereunder paragraphs 1(a) and 3(a) are permitted to be added in the plaint.

: 3 : 2. I have heard the arguments of Miss Rekha Patil, learned counsel appearing on behalf of Shri M.G.Naganuri for petitioners. It is the contention of learned counsel appearing for the petitioners that application for amendment was liable to be rejected on two grounds namely, (i) similar application had been filed by the plaintiff namely I.A. No.3, having it dismissed on 14.02.2011 and as such the present application ought not to have entertained and (ii) it has been filed at a belated stage. 3. Trial Court after considering the rival contentions has allowed the application in question on the ground that claim of joint family members in a suit for partition should be decided once for all. 4. Having heard the learned counsel appearing for the petitioners and on perusal of the records as also the application I.A. No.3 filed earlier in the very same suit which is furnished along with a memo and the order rejecting said application, it would not detain this

: 4 : Court for too long to reject the contention of Miss Rekha Patil for reasons more than one. Amendment which is now sought to be put forward is the suit and which application allowed by the Trial Court would clearly indicate that plaintiff sought for introduction of paragraphs 1(a) and 3(a) whereunder plaintiff has sought to contend that all parties to the suit are the legal heirs of late Shri Gadigeppa Maddi and apart from the parties to the suit, Smt. Mallawwa was also the legal heir who succeeded to the self acquired and ancestral properties belonging to Shri Gadigeppa Maddi. Plaintiffs have also sought to bring on record details relating to earlier round of litigation between the brothers of Smt. Mallawwa and all the legal heirs of Shri Gadigeppa Maddi which ended in a compromise by contending that remaining 5 guntas of land was allotted under the said compromise to one of the defendants in O.S. No.219/1983 and also to contend as such all the parties to the suit became joint owners of the suit property along with deceased Smt. Mallawwa.

: 5 : 5. As rightly observed by the Trial Court, the suit in question being for partition and separate possession, plea now sought to be put forward by the plaintiff would be essential to adjudicate all the disputes relating to the succession as well as the right of the plaintiff to claim right or seek partition in the suit schedule property. Merely because evidence of the plaintiff has been commenced by, itself would not be a ground to reject the claim of the plaintiff for amendment. On the other hand, the admissions of the plaintiff in cross-examination, if any, which has accrued to the defendants as contended by Miss Rekha Patil, learned counsel can be made use of by the defendants at the time of addressing the final arguments in the suit and even otherwise by virtue of amendment having been allowed, defendants would be entitled to file additional written statement and they can seek for further cross- examination of P.W.1 if they think it to be necessary.

: 6 : 6. In that view of the matter, I do not find any merit in this writ petition. Writ petition stands rejected subject to observations made herein above. SD/- JUDGE Rsh