In the High Court of Karnataka at Bengaluru

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF OCTOBER, 2015 BEFORE THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.56537 OF 2013 (GM-CPC) BETWEEN: SMT.SEEMA RAO AGED ABOUT 54 YEARS D/O P.E. LAXMAN RAO NOW RESIDING AT NO.19C VERULAM AVENUE LONDON E 17, 8 ES UNITED KINGDOM ALSO RESIDING AT KAREKAD ESTATE ARVATHOKLU VILLAGE GONIKOPPAL KODAGU- 571213 ... PETITIONER (BY SMT .NALINA MAYEGOWDA AND SRI.JOSEPH ANTHONY FOR POOVAYYA AND CO. ADV.) AND: 1. SMT.GEETA RAO W/O LATE P.E. LAXMAN RAO AGED ABOUT 61 YEARS KAREKAD ESTATE, ARVATHOKLU VILLAGE GONIKOPPAL KODAGU - 571213 2. MR. P.L VINOD KUMAR S/O LATE P.E. LAXMAN RAO AGED ABOUT 44 YEARS KAREKAD ESTATE ARVOTHOKLU VILLAGE 2 GONIKOPPAL SOUTH COORG DISTRICT - 571213 (PRESENTLY ABSCONDING) 3. SMT. JAYANTHI SHIVRAM W/O SHIVRAM D/O LATE P.E. LAXMAN RAO AGED ABOUT 42 YEARS NO.302, AHUJA PALACE NO.96, RICHMOND ROAD BANGALORE - 560025 4. THE STATE BANK OF INDIA REPRESENTED BY ITS MANAGER VIRAJPET BRANCH VIRAJPET COORG DISTRICT - 571218 5. SRI CHERIAPANDA K UTHAPPA AGED ABOUT 62 YEARS S/O KUSHALAPPA MAIN ROAD, PONNAMPET VIRAJPET KODAGU DISTRICT - 571216 6. SMT. IMMI UTHAPPA AGED ABOUT 55 YEARS W/O CHERIAPANDA K UTHAPPA MAIN ROAD, PONNAMPET VIRAJPET TALUK KODAGU DISTRICT - 571216 7. SRI P.R. GANDHI RAO S/O PADARTHI RAMAIAH AGED ABOUT 48 YEARS NEAR KAREKAD ESTATE ARVATHOKLU VILLAGE AND POST GONIKOPPAL SOUTH COORG - 571213 8. SRI P.R.SUBHAS S/O PADARTHI RAMAIAH 3 AGED ABOUT 46 YEARS NEAR KAREKAD ESTATE ARVATHOKLU VILLAGE AND POST GONIKOPPAL SOUTH COORG - 571213 9. SRI CHERIAPANDA P. POOVAYYA S/O CHERIAPANDA POOVAPPA AGED ABOUT 42 YEARS PONNAMPET SOUTH COORG - 571213 10. SRI MACHAMADA KUTTAPPA S/O KUSHALAPPA AGED ABOUT 60 YEARS BEKKESODLUR VILLAGE SOUTH COORG - 571216 11. SRI ARAMANAMADA ARUN KUMAR S/O MACHAYYA AGED ABOUT 50 YEARS KOTOOR VILLAGE SOUTH COORG - 571216 ... RESPONDENTS (BY SRI. C.M.POONACHA, ADV FOR R5 & R6) (BY SRI. S.R. SREEPRASAD, ADV FOR R7 & R8) (BY SRI. SUNIL.P.P FOR M/S INDIA LAW PRACTICE, ADV FOR R10) (R1, R3, R4, R9 AND R11 ARE SERVED BUT UNREPRESENTED) (NOTICE TO R2 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DT. AUGUST 26, 2013 (ANNX-A) PASSED IN O.S.NO.110/2006 ON THE FILES OF THE SENIOR CIVIL JUDGE & JMFC, AT VIRAJPET & CONSEQUENTLY ALLOW I.A.NO.X FILED U/O VI RULE 17 OF THE CPC, 1908. 4 THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R Petitioner instituted OS No.1378/2002, on 27.02.2002, in the City Civil Court at Bengaluru, to pass a decree for partition and put her in separate possession of her share upon drawing final decree and award mesne profits. I.A.No.2 filed was allowed on 22.09.2006 and the plaintiff was permitted to delete the properties described in schedules ‘A’ and ‘B’ of the plaint. Amendment permitted having been carried out, by noticing, that all other properties described in the schedule ‘C’ to ‘K’ being situated in Coorg District and no portion of the properties described in schedules ‘C’ to ‘K’ being situated in the local jurisdiction of Bengaluru City Civil Court and being of the view that the Court has lost territorial jurisdiction to proceed with the suit, the plaint was ordered to be returned as provided under Order VII Rule 10 of CPC, to the plaintiff for presentation before the proper Court. Plaintiff was 5 reserved with liberty to file application as per Rule 10-A of Order VII of CPC. 2. In pursuance of the said order, the return of the plaint was obtained and was presented in the Court of Senior Civil Judge and JMFC at Virajpet. The suit was registered as OS No.110/2006. 3. I.A.No.10 was filed, under Order VI Rule 17 r/w Section 151 of CPC, to permit the amendment of the plaint ie., to delete the last sentence appearing in Para 3, which reads as follows: “After her husband’s demise, the first defendant acquired two flats in Bengalore out of the Income of the joint family properties.” Said application having been dismissed by an order dated 26.08.2013 vide Annexure-A, this writ petition was filed. 4. Heard learned advocates on both sides and perused the record. 6 5. Indisputedly, order passed on I.A.No.2, on 22.09.2006, in OS No.1378/2002 has attained finality. Schedules ‘A’ and ‘B’ properties, with reference to which the aforesaid averments was made in Para 3 of the plaint have been deleted. After deletion of the said items of the properties, the plaint was directed to be returned for presentation before the proper Court. In pursuance of the said order, return of the plaint was obtained and was presented and registered as OS No.110/2006 by the Senior Civil Judge and JMFC at Virajpet. The averments made in the plaint, extracted supra, made with reference to the ‘A’ & ‘B’ schedule properties, since deleted, being superfluous, I.A.No.10 was filed. The amendment sought by filing I.A.No.10 being necessary, to be in conformity with order passed on I.A.No.2, ought to have been allowed by the learned Trial Judge. The order passed, impugned herein is irrational. The trial Judge has not kept in view the in that the effect of order passed on I.A.No.2 in OS 7 No.1378/2002. Hence the impugned order being bad, cannot be sustained. In the result, petition is allowed and the impugned order is set-aside. I.A. No.10 filed in the Court below being meritorious stands allowed. As a consequence, plaintiff is permitted to delete the aforesaid sentence, appearing on penultimate part of para 3 of the plaint, on the next hearing date of the suit. Sd/- JUDGE GH .

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