- 1 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 6192 OF 2019 (GM-CPC) BETWEEN: 1. SRI M.V. KRISHNAMURTHY AGED ABOUT 68 YEARS S/O LATE K T VENKATARAMAIAH RESIDING AT NO.25, 1ST FLOOR 4TH CROSS, GANGAMMA TEMPLE ROAD, THYAGARAJANAGAR BENGALURU - 560 028. 2. SRI M.V. SADANANDA AGED ABOUT 62 YEARS S/O LATE K T VENKATARAMAIAH RESIDING AT NO.73 DEVANACHAR STREET 5TH MAIN, BEHIND DURGA ENTERPRISES, CHAMARAJPET BENGALURU - 560 018. 3. SMT. ANASUYA AGED ABOUT 48 YEARS D/O LATE K.T. VENKATARAMAIAH W/O SRI ANANTHANARAYANA RAO RESIDING AT NO.304 ALLAM PRABHU ROAD 7TH MAIN, GAVIPURAM EXTENSION, BENGALURU - 560 019. …PETITIONERS (BY SRI SHANKARANARAYANA BHAT N, ADV.) AND: 1. SRI M.S. CHETHANA S/O LATE M.V. SHANKAR AGED ABOUT 38 YEARS CATERING BUSINESS Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 RESIDING AT DOOR NO.131 3RD CROSS, 7TH PHASE J P NAGAR, SANSITY BENGALURU - 560 078. 2. SMT. SHANTHAMMA D/O LATE K.T. VENKATARAMAIAH W/O LATE NAGAPPAIAH AGED ABOUT 72 YEARS C/O SRI MANJUNATH NO.80, 7TH MAIN NARMADHA NADI ROAD BRINDAVAN NAGAR HANUMANTHANAGAR BENGALURU - 560 019. 3. SMT. KALYANI D/O LATE K.T. VENKATARAMAIAH W/O SRI NAGABHUSHANA AGED ABOUT 70 YEARS RESIDING AT MELPAL KARKESHWARA VILLAGE BALEHONNUR HOBLI N.R. PURA TALUK CHIKKAMAGALURU PIN - 577 112. 4. SMT. SAROJA D/O LATE K.T. VENKATARAMAIAH W/O DR. SABHAPATHI AGED ABOUT 57 YEARS RESIDING AT 5TH CROSS NARASIMHARAJA COLONY BENGALURU - 560 019. 5. SMT. JAYASHEELA D/O LATE K.T. VENKATARAMAIAH W/O SRI KRISHNAMURTHY AGED ABOUT 53 YEARS RESIDING AT N.R. PURA MELPAL, KARKESHWARA VILLAGE BALEHONNUR HOIBLI N.R. PURA ALUK CHIKKAMAGALURU DISTRICT PIN - 577 112. …RESPONDENTS - 3 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 (BY SRI M.R. NARAYAN, ADV., FOR R-1; R-2 TO R-5 SERVED) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND SET ASIDE THE ORDER PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND PRL. JMFC AT TARIKERE IN FDP NO.11/2014 ON I.A.NO.1 DATED 17.12.2018 MARKED AS ANNEXURE-F IN THIS WRIT PETITION AND FURTHER ALLOW THE SAID APOPLICATION I.A.NO.1 IN FDP NO.11/2014. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER 1. This writ petition under Article 227 of the Constitution of India is filed assailing the order dated 17.12.2018 passed on IA.no.1 in FDP.No.11/2014 by the Court of Senior Civil Judge & JMFC at Tarikere. 2. Heard the learned Counsel for the parties. 3. Suit in O.S.No.53/1999 was filed by respondent no.1 herein before the jurisdictional Civil Court at Tarikere, seeking the relief of partition and separate possession of the suit schedule property and also for mesne profits. The contesting - 4 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 defendants had filed their written statement opposing the suit claim. The Trial Court by judgment and decree dated 22.01.2008, decreed the suit and held that plaintiff is entitled for partition and separate possession of his 8/35th share in all the plaint schedule properties and similarly defendant nos.1, 2 & 7 were also held entitled for 8/35th share each in the suit schedule properties. Defendant nos.3, 4, 5 & 6 were held entitled for 1/35th each in the plaint schedule properties. The said judgment and decree dated 22.01.2008 passed in O.S.No.53/1999 was challenged by the defendants before this Court in R.F.A.No.421/2008, and the Division Bench of this Court allowed the appeal and modified the judgment and decree passed in O.S.No.53/1999, holding that appellants/defendants and the respondent/plaintiff are entitled for 1/8th share each in the plaint schedule properties. 4. Final Decree Proceedings in FDP.No.11/2014 was filed before the Trial Court by respondent no.1 herein and in the said proceedings, IA.no.1 was filed on behalf of the petitioners under Order VI Rule 17 read with Section 151 CPC seeking permission of the Court to amend their written statement filed - 5 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 in O.S.No.53/1999. The same was opposed by respondent no.1 herein and the Trial Court vide the order impugned has rejected IA.no.1 filed in FDP.No.11/2014. Being aggrieved by the same, petitioners are before this Court. 5. Learned Counsel for the petitioners having reiterated the grounds urged in the petition submits, that the prayer made in the proposed amendment is to include the left out joint family properties for which a counter claim is sought to be made by the petitioners in their written statement. He submits that final decree proceedings is continuation of the suit and left out properties can be always brought for partition even after a preliminary decree is passed in the suit. In support of this contention of his, he has placed reliance on the judgment of the coordinate bench of this Court passed in SMT. JANAKI VS SMT. LALITHA & OTHERS - 2015 SCC OnLine KAR 9475. He further submits that the Division Bench of this Court while disposing of RFA.No.421/2008, has opined that the finding recorded by the Trial Court on Issue no.4 cannot be reversed in the absence of proper pleading and the prayer seeking for counter claim. It is under these circumstances, IA.no.1 is filed by the petitioners - 6 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 seeking permission of the Trial Court to amend their written statement. The Trial Court was not justified in rejecting the application. He has placed reliance on the judgment of Hon'ble Supreme Court in the case of LIFE INSURANCE CORPORATION OF INDIA VS SANJEEV BUILDERS PRIVATE LIMITED & ANR. - 2022 SCC OnLine SC 1128, and submits that courts should be liberal in considering the amendment application and a hypertechnical approach should be avoided. 6. Per contra, learned Counsel for the respondent has argued in support of the order impugned and submits, that in the written statement filed by the contesting defendants who are the petitioners in this petition, a specific plea with regard to non-joinder of all the joint family properties which was available for partition was raised and based on such a pleading, the Trial Court had framed Issue no.4 which has been answered in the negative and the said finding has attained finality. Therefore, it is not once again open for the petitioners to re- open the same in the final decree proceedings. Accordingly, he prays to dismiss the petition. - 7 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 7. Perusal of the material on record would go to show that petitioners herein who were defendant nos.1, 2 & 7 in O.S.No.53/1999 have filed written statement opposing the suit claim and in the written statement filed by them, a specific plea was raised that the schedule given to the plaint in O.S.No.53/1999 was incomplete and lot of family properties are left out. Such a plea is found in paragraph no.2 of the written statement filed by defendant nos.1, 2, 6 & 7. Based on the rival pleadings, the Trial Court had framed as many as eight issues in O.S.No.53/1999 and Issue no.4 was with regard to non- joinder of the family properties in the plaint schedule. Issue no.4 in O.S.No.53/1997 reads as under: "4. Whether the defendants 1, 2, 6 & 7 prove that the schedule given to the plaint schedule is incomplete and lot of family properties are left out as contended in para-2 of the written statement?" 8. The said issue was answered in the negative by the Trial Court in O.S.No.53/1999. The petitioners herein had challenged the judgment and decree passed in O.S.No.53/1999 before this Court in RFA.No.421/2008 which was partly allowed by judgment and decree dated 03.12.2013 and the decree passed by the Trial Court was modified and it was held that the plaintiff - 8 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 and defendants are entitled for 1/8th share each in all the plaint schedule properties. 9. In RFA.No.421/2008, this Court having referred to the finding recorded by the Trial Court in respect to Issue no.4 raised in O.S.No.53/1999, has observed that the Trial Court has held Issue no.4 in the negative, and therefore, this Court cannot reverse the finding of the Trial Court without there being any proper pleading and prayer seeking for counter claim. Such an observation itself cannot give a lever to the defendants to seek amendment of the written statement filed in O.S.No.53/1999, in which a preliminary decree is already passed and a finding with regard to Issue no.4 has been recorded and it has been held that defendant nos.1, 2, 6 & 7 have failed to prove that schedule given to the plaint is incomplete and lot of family properties are left out as contended in their written statement. The prayer made in IA.no.1 is now to amend the written statement by inserting a pleading to the effect that certain joint family properties which were left out in the plaint in O.S.No.53/1999 is required to be partitioned between the parties to the suit. - 9 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 10. When the Trial Court has answered Issue no.4 in the negative, it is not now open for the defendants to once again re-open the said issue by seeking to amend the written statement and also to raise a counter claim in respect of the left out properties. The same would also be hit by the principles of res judicata. Under the circumstances, I am of the opinion that the application filed under Order VI Rule 17 read with Section 151 CPC on behalf of the petitioners was liable to be rejected. Therefore, the order passed by the Trial Court rejecting IA.no.1 in FDP.No.11/2014 on a different reason needs no interference. 11. The judgment in Janaki's case supra cannot be made applicable to the present case, since in the said case, the left out properties were sought to be included for the first time in the final decree proceedings, whereas in the present case, in the written statement there was a plea raised on behalf of the defendants regarding non-joinder of family properties and an issue was framed based on such a plea raised, which is answered against the defendant. Under the circumstances, I do - 10 - HC-KAR NC: 2025:KHC:47504 WP No. 6192 of 2019 not find any merit in this writ petition. Accordingly, the writ petition is dismissed. Sd/- (S VISHWAJITH SHETTY) JUDGE KK