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2022 DIGILAW 185 (KAR)

Guru Reddy v. Gayathri

2022-02-09

ASHOK S.KINAGI

body2022
JUDGMENT 1. The petitioner being aggrieved by the order dtd. 30/1/2021, passed on the applications filed by the petitioner in O.S.No.4956/2011 by the XXX Additional City Civil and Sessions Judge, Bengaluru City, has filed this writ petition. 2. Brief facts leading rise to filing of this petition are as under: Respondent No.1 filed a suit in O.S.No.4956/2011 for the relief of partition and separate possession and other consequential reliefs against the petitioner and other respondents. The petitioner filed written statement and also additional written statement. The Trial Court framed issues. Thereafter the Trial Court recorded the evidence of respondent No.1 and petitioner. The matter is posted for arguments. At this stage, the petitioner filed applications seeking for amendment of written statement and for reopening the case. In support of the application filed for amendment of written statement, the petitioner has filed an affidavit stating that plaint 'A', 'B' and 'E' schedule properties were acquired by Late Narayana Reddy under oral partition between his brothers and sisters in the year 1997 and he was in possession and enjoyment of the same. During his lifetime, under oral partition, he divided 'A' schedule property and it was allotted in favour of the petitioner and land bearing Sy.No.36/3 i.e., 'B' schedule property was divided and was allotted to his daughters namely respondents No.1, 2 and 3. Accordingly, the petitioner is in lawful possession of 'A' schedule property and he has developed the said land by putting up construction. The petitioner and other respondents are in possession and enjoyment of their respective portions of the properties allotted to them in the oral partition in the year 1997. The petitioner, due to oversight, has not stated the said fact in the written statement. Hence the petitioner has filed the application seeking for amendment of written statement. In support of the application filed to reopen the case, the petitioner has filed an affidavit stating that the petitioner has filed an application for amendment of written statement and now the matter is set down for evidence on amended issues and to adduce additional evidence, it is necessary to reopen the case to take and consider the application for amendment and permit the petitioner to reopen the case and adduce further evidence. Hence, on these grounds, prayed to allow the applications. Respondent No.1 has filed common objections to the said applications denying the averments made in the applications. Hence, on these grounds, prayed to allow the applications. Respondent No.1 has filed common objections to the said applications denying the averments made in the applications. The Trial Court after hearing the parties, rejected the applications filed by the petitioner. Hence this writ petition. 3. Heard learned counsel for the petitioner and learned counsel for respondent No.1. 4. Learned counsel for the petitioner submits that the proposed amendment is necessary for the purpose of deciding the matter in dispute and to avoid multiplicity of litigation. He further submits that if the proposed amendment is allowed and if the petitioner is permitted to lead further evidence, no injustice would be caused to respondent No.1. He submits that the Trial Court has committed an error in rejecting the applications. He has filed a memo along with documents. He submits that from the perusal of the said documents, the petitioner has made out a ground to allow the applications. Hence, on these grounds, he prayed to allow the writ petition. 5. Per contra, learned counsel for respondent No.1 submits that when the case is posted for arguments, the petitioner has filed these applications only with an intention to delay the proceedings. He further submits that the petitioner has not established that inspite of due diligence, the petitioner could not raise this fact before the commencement of trial. Further he places reliance on the judgment of the Hon'ble Apex Court in the case of PANDIT MALHARI MAHALE VS. MONIKA PANDIT MAHALE and ORS., reported in (2020) 11 SCC 549 . Hence on these grounds he prays to reject the writ petition. 6. Perused the records and considered the submissions made by learned counsel for the parties. 7. Respondent No.1 has filed a suit for partition and separate possession on 12/7/2011 and respondent No.1 has filed an application for amendment to include some more properties. The said application came to be allowed. The petitioner has filed written statement on 20/11/2011. Thereafter additional written statement was also filed by the petitioner on 4/9/2014. The Trial Court framed issues. Thereafter, the Trial Court recorded the evidence of respondent No.1 as well as the petitioner and the case is posted for arguments. The said application came to be allowed. The petitioner has filed written statement on 20/11/2011. Thereafter additional written statement was also filed by the petitioner on 4/9/2014. The Trial Court framed issues. Thereafter, the Trial Court recorded the evidence of respondent No.1 as well as the petitioner and the case is posted for arguments. At this stage, the petitioner has filed applications seeking for amendment of written statement and for reopening the case on the ground that already there was an oral partition that took place in the year 1997 wherein 'B' schedule property was allotted in favour of respondent No.1 and on the basis of the said oral partition, parties were put in possession of their respective portions allotted to their share. If really an oral partition was effected in the year 1997, the petitioner ought to have stated the said aspect in the written statement that was filed on 20/10/2011, as the petitioner was well aware about the alleged oral partition on the date of filing the written statement. The petitioner has not pleaded the same in the written statement. The petitioner has lead evidence. Even in the evidence also the petitioner has not stated about the alleged partition effected in the year 1997. When the case was posted for arguments, the petitioner has filed these applications. The petitioner has not pleaded in the application that inspite of due diligence, the petitioner could not raise the said facts before the commencement of trial. The petitioner has failed to establish that inspite of due diligence, the petitioner could not raise this issue before the commencement of trial. In view of the law laid down by the Hon'ble Apex Court in the case of PANDIT MALHARI MAHALE (SUPRA), the Trial Court was justified in rejecting the applications filed by the petitioner. I do not find any grounds to interfere with the impugned order. Accordingly, the writ petition is dismissed.