IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE. THE HON BLE Mr. JUSTICE A.V.CHANDRASHEKARA. WRIT PETITION No.

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9 th DAY OF JULY 2015 BEFORE THE HON BLE Mr. JUSTICE A.V.CHANDRASHEKARA WRIT PETITION No.27749/2015(GM-CPC) BETWEEN: 1. MR. A.M SATYANARAYANA, AGED ABOUT 82 YEARS, S/O LATE A.E. MADHAVARAM NAIDU, FLAT NO. 201, 2 ND FLOOR, NO.61, RIDDHI APARTMENTS, 8 TH CROSS, TALACAUVERY LAYOUT, OPPOSITE JAKKUR FLYING CLUB, AMRUTHAHALLI, BENGALURU MR. SURESHA KUMAR A.S, AGED ABOUT 40 YEARS, S/O A.M SATYKANARAYANA, FLAT NO.201, 2 ND FLOOR, NO.61, RIDDHI APARTMENTS, 8 TH CROSS, TALACAUVERY LAYOUT, OPPOSITE JAKKKUR FLYING CLUB, AMRUTHAHALLI, BENGALURU MRS. A.S. UMA MAHESHWARI, AGED ABOUT 38 YEARS, W/O MR. SHOBAN, D/O MR.A.M.SATYANARAYANA, R/A FLAT NO.2-A, BLOCK NO.3

2 2 DWARAKA APARTMENTS, AH TH MAIN ROAD, ANNA NAGAR, CHENNAI MRS. VEENA SURESH NAIDU, AGED ABOUT 37 YEARS, W/O MR.SUKRESH NAIDU, D/O MR. A.M.SATYANARAYANA, R/A NO.6, 2 2ND STREET, NEHRU COLONY, PAZHAVATHANGAL, CHENNAI MR. A.S. MAHESH KUMAR, AGED ABOUT 36 YEARS, S/O MR. A.M. SATYANARAYANA, R/A NO.124, KRISHNA STREET, CHINAMAYA NAGAR, CHENNAI PETITIONERS AND: (By Sri.GEORGE JOSEPH, Adv.) 1. MRS. R JAYASHREE DEVI AGED ABOUT 57 YEARS, W/O R. RAMESH BABU, R/A FLAT NO.001, NO.11, ORCHID APARTMENTS, ST.JOHNS ROAD, CANTONMENT, BENGALURU M/S SURBACON DEVELOPMENT PVT LTD, A PRIVATE LIMITED COMPANY, HAVING ITS OFFICE AT, NO.1/1, ULSOOR ROAD BENGALURU , REPRESENTED BY ITS DIRECTOR, MRS.UMA RAVI KUMAR. 3. MR. BALAKRISHNA KURUP, AGED ABOUT 56 YEARS,

3 3 S/O P.G. KURKUP, AGED ABOUT 47 YEARS, R/A FLAT NO. 101, NO.11, ORCHID APARTMENTS, ST JOHNS ROAD, BENGALURU MR.P. VIJAYAN, AGED ABOUT 47 YEARS, S/O MR. MADHAV MENON, R/A FLAT NO.102, NO.11, ORCHID APARTMENTS, ST JOHNS ROAD, CANTONMENT, BENGALURU , 5.MR. PRASAD BHALACHANDRA BANDEKAR, S/O MR. BHALACHANDRA PANDURANG BANDEKAR, AGED ABOUT 41 YEARS, BOTH R/A FLAT NO. 201, NO.11, ORCHID APRATMENTS ST JOHNS ROAD, CANTONMENT, BENGALURU MR. V. PARAMESHWARAN, AGED ABOUT 84 YEARS, S/O LATE N.A. VAIDYANATHAN, BOTH R/A FLAT NO.202, NO.11, ORCHID APARTMENTS, ST JOHNS ROAD, CANTONMENT, BENGALURU MR. RAVINDRANATH, PARTNER AT M/S. LAVANYA THEATRE, R/A NO. 8, LANGFORD ROAD, BENGALURU. RESPONDENTS

4 4 THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION ON INDIA, PRYING TO QUASH THE ORDER DATED 1 APRIL 2015 VIDE ANN-A PASSED BY THE HON BLE XXVI ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALOURU IN THE SUIT BEARING O.S.NO /2008 REJECTING THE INTERLOCUTORY APPLICATION FILED BY THE PETITIONERS HEREIN UNDER ORDER 6 RULE 17 READ WITH SECTION 151 OF CPC AND ALLOW THE INTERLOCUTORY APPLICATION FILED BY THE PETITIONERS HEREIN UKNDER ORDER 6 RULE 17 READ WITH SECTION 151 OF CPC This petition coming on for preliminary hearing, this day, the Court made the following:- ORDER Heard the learned counsel appearing for the parties. Matter is taken up for final hearing with their consent. 2. Order dated passed in O.S.No.25030/2008 pending on the file of XXVI Additional City Civil and Sessions Judge, Bangalore, is called in question. Petitioners are the plaintiffs in the said suit. Respondents are the defendants in the said suit. Suit has been filed for the relief of partition and separate possession of schedule properties described in the schedules A to C found in the plaint. The main relief sought for by the plaintiffs is to grant 2/9 th share to plaintiffs 1 to 5 and to

5 5 pass a preliminary decree and to set aside the sale deeds executed in favour of defendants 3 to 6 on , and and for payment of costs and such other reliefs deemed fit in the circumstances of the case. P.W.1 is examined-in-chief in full and he has to be cross-examined by the counsel for the defendants. At that stage, an application came to be filed under Order VI Rule 17 read with Section 151 of CPC intending to incorporate certain amendments in regard to the prayer Column 12-A and insert certain amendments to Para No.12. The said application came to be contested by the defendants and ultimately, the same has been dismissed vide Order dated Hence, petitioner is before this Court under Article 227 of the Constitution of India. 3. Learned counsel Sri.G.L.Vishwanath has submitted his arguments stating that no good grounds are made out to allow the proposed amendment, more particularly, when the trial has already commenced in the case. It is his case that the proposed amendments sought to be incorporated will have to be viewed in the light of the earlier decree for

6 6 partition and separate possession passed in O.S.No.13/ If there is any error in the share sought for by the plaintiff, the Court will calculate the share in accordance with the rights of the parties in accordance with the personal law applicable to them. The Court has held that if there is mistake in the quantum of share sought for in Para-15A, the same may be considered after hearing arguments on merits. Therefore, there is no jurisdictional error in rejecting the proposed amendment to Para-15A of the plaint. 5. Counsel for the plaintiffs has submitted that relief of mesne profits is not sought for in the plaint and therefore, the amendment is absolutely required to that effect. In a suit for partition and separate possession, question of granting profits does not arise, in terms of Order XX Rule 12 of CPC. It is for the defendants to render accounts under Order XX Rule 12 of CPC in case a decree for partition is to be granted. Notwithstanding the relief being not sought for in the plaint about rendition of account, the Court has

7 7 inherent power to grant such relief as the suit is one for partition and separate possession of share by parties who are alleged to be the members of the joint family. 5. The important aspect is in regard to the deletion of prayer found in Column C of Para 15. Prayer sought is liable to be set aside and prayer sought for by the 1 st and 2 nd defendants has to be granted together with mesne profits. 6. As already submitted, the alienation has already taken place on , and In a suit for partition and separate possession, plaintiffs have not sought a specific prayer for setting aside the sale deed in so far as it relates to their share. It would be sufficient if they pray that the alienation would not bind their share. If the said prayer found in column C were to remain, the defendants would insist the Court to give a finding on the exact Court Fee to be paid. Now that issue is still kept open. The Court can pass a suitable order in regard to the Court fee to be payable. How far that decree is binding on the plaintiffs is a matter to be decided by the Trial Court and

8 8 after hearing arguments on merits, the Court will be at liberty to consider the same since the evidence will have to be appreciated, in the light of the prayers sought by the plaintiffs and the defence set up by the contesting defendants. In this view of the matter, this Court does not find any reason to interfere with the considered order passed by the Trial Court. The petition is dismissed with the above observations. 7. Since the parties involved in the suit are quite aged, the learned Judge is requested to expedite the matter and the parties and the counsel appearing for the parties to cooperate with the Court in expediting the matter. Sd/- JUDGE bnv*