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1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13 th DAY OF JUNE 2013 BEFORE THE HON’BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR WRIT PETITION No.7069 OF 2013 (GM-CPC) BETWEEN: Sri Ahmed Moosa S/o late Moosa Dawood Aged about 58 years No.37/23, Yellappa Chetty Layout, Ulsoor Road Bangalore-42. ..Petitioner (By Sri Chalapathy, Sr. Counsel for Srinivas, Adv.,) AND : 1. Sri Dawood Moosa S/o late Moosa Dawood Aged about 61 years No.36, III Cross, Aga Abba Ali Road, Ulsoor Road Bangalore-42. 2. Sri Hashim Moosa S/o late Moosa Dawood Aged about 67 years No.36, III Cross, Aga Abba Ali Road, Ulsoor Road Bangalore-42. 2 3. Sri Jaffer Moosa S/o late Moosa Dawood Aged about 64 years R/o.7, WH Hanumanthappa Layout, Ulsoor Road Bangalore-42. 4. Sri Hussain Moosa S/o late Moosa Dawood Aged about 64 years No.37/23, Yellappa Chetty Layout, Ulsoor Road Bangalore-42. 5. Sri Hassan Moosa S/o late Moosa Dawood Aged about 57 years No.37/4, Cunningham Road Cross, Jayaramdas Layout Bangalore-42. ..Respondents (By Sri Shanmukkappa for Kesvy & Co., Adv., for R1; Notice to R2 to R5 dispensed with) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 6.2.2013 passed on I.A. No.18 by the XVIII Addl. City Civil and Sessions Judge, Bangalore in O.S.No.11265/2006 vide Annexure-F. This Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following : 3 O R D E R By the impugned order, the Court below has rejected I.A. No.18 filed by the petitioner herein on the ground that the said application for amendment is highly belated and that the plea of counter-claim cannot be raised after the trial of the suit has begun. 2. The records reveal that Respondent No.1 herein filed a suit in O.S. No.11265/2006 before the City Civil Court, Bangalore for partition and separate possession in respect of immovable properties bearing Nos.156, 157/1 to 157/21, 158 and 169, Corporation Division No.68 situated at Commercial Street, Bangalore. The petitioner herein is the 4th defendant. The written statement came to be filed by him praying for dismissal of the suit by pleading that partition has taken place by family arrangement among the members of the family in the year 1996 itself and therefore the suit for partition is not maintainable. Thereafter an 4 application came to be filed by the petitioner under Order-6 Rule-17 of CPC for amendment of the written statement. By the said application, the petitioner herein (defendant No.4) prayed for insertion of paragraph No.10A in his written statement. The operative portion of the amendment application reads thus: “Without prejudice to the above said contentions this defendant alternatively submits that if for any reason this Hon’ble Court comes to the conclusion that there is no partition or family settlement in the year 1996, the entire estate and properties of late Moosa i.e., property No.44, Commercial St. and No.17, S.J.P. Road, Bangalore also should be included in the suit schedule.” Thus the petitioner herein raised an alternative plea as aforementioned. The said application came to be allowed after hearing all the parties on 9.1.2013. On 16.1.2013 the petitioner carried out the amendment and 5 filed amended written statement and thereafter the matter was set down for evidence. The plaintiff was examined and cross-examined. However on 29.1.2013 the issues were re-framed by the Trial Court. Thereafter I.A. No.18 is filed by the petitioner herein seeking the amendment of the prayer in the written statement. The prayer in I.A. No.18 reads thus: “Under Order 6 Rule 17 of the Code of Civil Procedure, the 4 th defendant in the above case prays that for the reasons sworn to in the accompanying affidavit, this Hon’ble Court may be pleased to permit him to amend the written statement by adding the following relief in the written statement after the word ‘dismissal’ in the interest of justice. If for any reason, this Hon’ble Court comes to the conclusion that there is no family settlement/partition in the year 1996, this Hon’ble Court may be pleased to direct partition the property bearing No…17, situated at SJP 6 Road and property No.44, Commercial Street and grant share to all the parties as per the Mohammeden law, in the interest of justice.” I.A. No.18 is rejected by the impugned order. 3. From the aforementioned facts, it is clear that the petitioner has sought for amendment of the prayer column in the written statement to bring it in consonance with the amended written statement. I.A. No.13 for amendment of the written statement was allowed on 9.1.2013 permitting the petitioner to raise the alternative plea. By virtue of the said amendment, the petitioner pleaded that for any reason if the Civil Court comes to the conclusion that there is no partition or settlement in the year 1996, all the family properties i.e., property No.44, Commercial Street and Property No.17 situated at S.J.P. Road are also be included in the suit schedule. Since the said prayer was allowed on 9.1.2013, the prayer column in the written statement also 7 necessarily needs to be amended to bring the prayer in consonance with the body of the written statement. 4. Since the order on I.A. No.13 has attained finality, the prayer in I.A. No.18 which is consequential to the amendment should also be granted. Therefore the trial Court is not justified in rejecting I.A. No.18. It is no doubt true that the trial has begun. But in the matter on hand, as aforementioned, the amendment application was allowed as back as on 9.1.2013 itself acceding the prayer of the petitioner to raise alternative plea. The prayer now sought for in I.A. No.18 is consequential to the prayer already granted by the Civil Court. By that process, no prejudice would be caused to the parties. 5. The contention of learned counsel for Respondent No.1 that the plea of counter-claim cannot be allowed to be raised after the trial has commenced cannot be accepted. By amending the written statement, the petitioner does not 8 raise the plea of counter-claim at all. But it is merely an alternative prayer. In addition to the same, it is a suit for partition and separate possession and hence there cannot be any claim and counter-claim. If the defendant also seeks share in the property, he can do so by paying Court fee and every party seeking partition should be treated as plaintiff. In view of the above, the impugned order stands quashed. I.A. No.18 filed before the Court below is allowed. Time to decide the civil suit on merits is extended for a further period of two months from the date of receipt of this order. Writ Petition is allowed accordingly. Sd/- JUDGE Gss/- .

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