- 1 - NC: 2025:KHC:9922 WP No. 42783 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO.42783 OF 2018 (GM-CPC) BETWEEN: SMT.SUSHEELAMMA W/O MANCHEGOWDA AGED ABOUT 79 YEARS RESIDING AT KOMMERAHALLI VILLAGE KASABA HOBLI MANDYA TALUK AND DISTRICT …PETITIONER (BY SRI.PRASHANTH H S, ADVOCATE) AND: 1. SRI MANCHEGOWDA SINCE DEAD BY HIS LEGATEE A) SMT. BHARATHI W/O SRI. S MOHAN KUMAR SINCE DEAD BY HER LRS A(1) SRI. M.SHAKTI JEEVAN S/O LATE SRI.S MOHAN KUMAR AND LATE SMT.BHARATHI AGED ABOUT 36 YEARS R/AT NO.60, 9/A, INDUSTRIAL SUBURB 1ST STAGE, VISHWESHWARAIAH NAGARA MYSORE CITY - 09 Digitally signed by ROOPA R U Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9922 WP No. 42783 of 2018 2. SRI. M.K.MOHAN KUMAR S/O SRI.MANCHEGOWDA AGED ABOUT 52 YEARS RESIDING AT KOMMERAHALLI VILLAGE KASABA HOBLI MANDYA TALUK AND DISTRICT PIN CODE - 571401 3. KUM. K.M.MOUNA D/O SRI. M.K.MOHAN KUMAR AGED ABOUT 23 YEARS 4. SMT. A R ROOPA W/O SRI. M K MOHAN KUMAR AND D/O. SRI. C RAMANNA AGED ABOUT 44 YEARS RESPONDENT NOS.3 AND 4 BOTH ARE RESIDING AT D.NO.1521, MARIGOWDA EXTENSION OPP TO KALEGOWDA HIGH SCHOOL MANDYA CITY - 577 004 5. M.K.RUKMINIYAMMA D/O. SRI. RAMANNA AGED ABOUT 60 YEARS R/AT NO.1521, 2ND CROSS MARIGOWDA EXTN BEHIND JAIL MANDYA CITY PIN CODE - 577 004 6. SRI. C.RAMANNA S/O LATE SRI.CHIKKAPUTTEGOWDA AGED ABOUT 69 YEARS R/AT NO.1521, 2ND CROSS MARIGOWDA EXTN - 3 - NC: 2025:KHC:9922 WP No. 42783 of 2018 BEHIND JAIL MANDYA CITY PIN CODE - 577 004 7. SMT. K M BHARATHI W/O SRI. G.V.VENKATESHKUMAR AGED ABOUT 43 YEARS R/AT GOPALPURA VILLAGE KASABA HOBLI MANDYA TALUK PIN CODE - 571 401 8. SRI.CHANDRAMOHAN M G S/O M.M.GOPALKRISHNA KAVERI NAGAR MANDYA CITY PIN CODE - 571 402 9. SRI. KARIPUTTAIAH S/O DODDAKARIGOWDA AGED ABOUT 63 YEARS R/AT KOMMERAHALLI VILLAGE KASABA HOBLI MANDYA TALUK AND DISTRICT PIN CODE - 571 401 …RESPONDENTS (BY SRI.L.RAJA, ADVOCATE FOR R.3 TO R.6; SRI.A.S.GIRISH, ADVOCATE FOR R.8; R.1(A)(I), R.2, R.7 AND R.9 - SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 21.08.2018 PASSED BY THE 5TH ADDL DISTRICT AND SESSIONS JUDGE, MANDYA IN R.A.NO.26/2017 VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW I.A.NOS.3 AND 4 AND ETC. - 4 - NC: 2025:KHC:9922 WP No. 42783 of 2018 THIS PETITION, COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER The present writ petition is filed by the plaintiff in O.S.No.19/2008, who is also an appellant in R.A.No.26/2017, aggrieved by the order dated 21.08.2018 passed in R.A.No.26/2017 rejecting an application filed under Order 1 Rule 10(2) read with Section 151 of CPC., (I.A.No.3) and an application filed under Order 6 Rule 17 read with Section 151 of CPC., (I.A.No.4). 2. By the aforesaid applications, the petitioner sought to implead respondent Nos.6 to 9 herein as party defendants and has also sought to include certain immovable properties as described in the said application - I.A.No.4. 3. The above suit in O.S.No.19/2008 is filed by the plaintiff for the relief of partition and separate - 5 - NC: 2025:KHC:9922 WP No. 42783 of 2018 possession against her husband and children, who are respondent Nos.1 to 5 herein. The written statement was filed by defendant Nos.3 and 4 specifically contending that about 7 items of the properties belonging to the joint family of the plaintiff and defendants were not included in the suit seeking relief of partition and separate possession and had also given details of the said 7 items of the properties at para No.19 of the written statement. It is also specifically contended that the plaintiff had not made one Kariputtaiah, who had purchased the property in Sy. No.162/C and Sy. No.162/A under Exs.P.5 and P.7 as a party to the suit. 4. The issues amongst others with respect to the contentions raised by the parties were framed by the Trial Court. Issue Nos.7 and 8 are with regard to maintainability of the suit for partial partition and for non- joinder of necessary parties. - 6 - NC: 2025:KHC:9922 WP No. 42783 of 2018 5. The Trial Court though answered the other issues in the Affirmative upholding the contentions and rights of the plaintiff, proceeded to dismiss the suit while answering issue Nos.7 and 8, by holding that the suit for partial partition filed by the plaintiff without making necessary parties was not maintainable. As against this judgment and decree dated 20.02.2017 of the Trial Court, the plaintiff preferred an appeal in Regular Appeal No.26/2017. 6. In order to overcome the aforesaid lacuna of not including all the properties and also not making necessary parties to the suit as contended by the defendants, the plaintiff filed aforesaid applications in I.A.Nos.3 and 4. The said applications were resisted by the respondents solely on the ground of delay and purported deliberate protraction in the matter by the plaintiff. The First Appellate Court accepting the contention of the respondents rejected the said applications by the - 7 - NC: 2025:KHC:9922 WP No. 42783 of 2018 impugned order, which has led to filing of the present writ petition. 7. Learned counsel for the petitioner reiterating the grounds urged in the memorandum of the writ petition submits that the First Appellate Court grossly erred in rejecting the applications merely on the ground that an amendment cannot be allowed once the Trial has been commenced without addressing the factual background, which has led the petitioner to file an application for amendment and for impleading of necessary parties. 8. Learned counsel for the respondents, on the other hand, submits that the applications filed are only to further delay the proceedings and that there has been a family partition long back and the petitioner by keeping this matter pending, has caused obstruction in enjoyment of the properties by the defendants and by subsequent purchasers are now sought to be brought on record. Hence, he prays for dismissal of the petition. - 8 - NC: 2025:KHC:9922 WP No. 42783 of 2018 9. It is also submitted that respondent No.6 - C.Ramanna and respondent No.7 - Smt.K.M.Bharathi are no more and their legal representatives have not been brought on record. 10. Heard and perused the records. 11. It is settled law that defect in the plaint in a suit for partition for non-joinder of necessary parties and non-inclusion of the other family properties is curable and in fact, as and when the said aspect of the matter is brought to the notice of the concerned Court, it is, indeed, the duty of the Court to direct the parties either to implead the necessary parties or to include the properties, which have been left out while filing the suit. Ultimately, what is required to be seen and achieved is a final settlement of the claims/dispute in respect of the joint family properties. 12. The Trial Court at paragraph Nos.23 and 26 of its judgment while answering issue Nos.7 and 8 had, though taken note of these aspects of the matter, ought to - 9 - NC: 2025:KHC:9922 WP No. 42783 of 2018 have directed the plaintiff to include the said properties and to implead the parties, who were necessary for adjudication of the matter. Not having done that, it proceeded to dismiss the suit on that count, which has resulted in filing of the appeal. 13. When the plaintiff has sought to cure the said defect, the First Appellate, without even addressing the issue germane in the matter, has proceeded to reject the said applications on the premises that the trial having already been commenced by the Trial Court. The Trial Court in the first instance and the First Appellate Court in the second instance have erred in not being present to the nature of the suit and the claim being made by the parties and the settled position of law in this regard. The First Appellate Court, which is equal to the Court of original jurisdiction, could not have rejected the said applications on hyper technical grounds that too in a suit for partition. The said applications have been filed only in view of contentions raised by the defendants, who cannot be - 10 - NC: 2025:KHC:9922 WP No. 42783 of 2018 heard to say that the plaintiff is dragging the proceedings. The First Appellate Court in the considered opinion of the Court has erred in exercising its jurisdiction by rejecting the said applications. 14. Accordingly, this Court proceeds to pass the following; ORDER (i) The writ petition is allowed. (ii) Consequently, I.A.Nos.3 filed under Order 1 Rule 10(2) of CPC., and I.A.No.4 filed under Order 6 Rule 17 of CPC., are allowed. (iii) The petitioner is permitted to amend the plaint. (iv) Since it is stated that respondent Nos.6 and 7 are no more, the First Appellate Court shall permit the plaintiff to bring the legal - 11 - NC: 2025:KHC:9922 WP No. 42783 of 2018 representatives of the said respondent Nos.6 and 7 on record. (v) Since the matter is pending from 2017, the First Appellate Court shall dispose of the matter expeditiously after giving sufficient opportunities to the parties not later than a year from the date of receipt of certified copy of this Order. SD/- (M.G.S. KAMAL) JUDGE NBM List No.: 1 Sl No.: 6