- 1 - HC-KAR NC: 2025:KHC:46238 WP No. 10175 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 10175 OF 2018 (GM-CPC) BETWEEN: MRS. DIANA NUMPLE DIAS W/O LATE FRANCIS DIAS DIAS CHAWL, HOUSE NO.111 KOPRI, THANE, MUMBAI - 400 603 MAHARASHTRA STATE. …PETITIONER (BY SRI VIGNESHWAR SHASTRI, SR. COUNSEL FOR SRI GURURAJ R, ADV.) AND: 1. MRS. THERESA DIAS W/O LATE LAWRENCE DIAS AGED ABOAUT 67 YEARS R/AT GUNDMI VILLAGE UDUPI TALUK & DISTRICT - 576 101. 2. MR. DEEPAK PETER DIAS W/O LATE LAWRENCE DIAS AGED ABOUT 43 YEARS R/AT GUNDMI VILLAGE UDUPI TALUK & DISTRICT. NOW R/AT NO.104 M/S APTE GROUND FLOOR SHIVASHAKTHI NAGAR LOKAMANYA NAGAR (WEST) MUMBAI - 4000 604. 3. MISS. BERNAJITH ANITHA DIAS D/O LATE LAWRENCE DIAS AGED ABOUT 26 YEARS R/AT GUNDMI VILLAGE Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:46238 WP No. 10175 of 2018 UDUPI TALUK & DISTRICT - 576 101. 4. MR. CLEMENT DIAS S/O PENDRU DIAS AGED ABOUT 70 YEARS R/AT GUNDMI VILLAGE UDUPI TALUK & DISTRICT - 576 101. 5. MRS. BRIDJET DIAS (DEAD) 6. MRS. FELCY LEWIS D/O ANTONY DIAS, RED WOOD BUILDING F 203, VEENA NAGAR MULUND (WEST) MUMBAI - 400 602. 7. MRS. CECILIA VAAZ SINCE DEAD REPRESENTED BY LR R-8 WHO IS ALREADY ON RECORD. 8. MRS. FALCY PINTO D/O LATE DAVID VAAZ AGED ABOUT 60 YEARS GUNDMI VILLAGE, SASTHAN POST UDUPI TALUK & DISTRICT - 976 101. 9. MR. B.P. HEGDE ADVOCATE KUNDAPURA COURT RECEIVER IN OS NO.163/1994 ON THE FILE OF CIVIL JUDGE JUNIOR DIVISION AT KUNDAPURA - 576 104. …RESPONDENTS (BY SRI K. ACHARYA, ADV., FOR R-4; R-1 THERESA DIAS - SERVED; R-2 DEEPAK PETER DIAS - SERVED; R-3 BERNAJITH ANITHA DIAS - SERVED; R-6 FELCY LEWIS - SERVED; R-9 FALCY PINTO - SERVED; R-9 B.P. HEGDE - SERVED ARE SERVED AND UNREPRESENTED; R-5 DECEASED; V/O/D 10.09.2024 R-8 IS TREATED AS LR OF DECD R-7) - 3 - HC-KAR NC: 2025:KHC:46238 WP No. 10175 of 2018 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD31.8.2017 PASSED ON IA NO.3 IN O.S.NO.24/208 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC AT KUNDAPURA AS PER ANNEXURE-N. 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 by the plaintiff with a prayer to set aside the order dated 31.08.2017 passed on IA.no.3 in O.S.No.24/2008 by the Court of Prl. Civil Judge & JMFC, Kundapura. 2. Heard the learned Counsel for the parties. 3. Suit in O.S.No.24/2008 is filed by the petitioner herein seeking the relief of partition and separate possession of the suit schedule properties. The contesting defendants have filed written statement and have opposed the suit claim. IA.no.3 was filed on behalf of the plaintiff with a prayer to amend the schedule of the plaint in O.S.No.24/2008 and thereby include certain left out properties which are required to be brought for - 4 - HC-KAR NC: 2025:KHC:46238 WP No. 10175 of 2018 partition. The said application was opposed by defendant no.4 by filing objections. The Trial Court vide the order impugned dated 31.08.2017 has dismissed the said application and being aggrieved by the same, plaintiff is before this Court. 4. Perusal of the material on record would go to show that IA.no.3 was earlier dismissed by the Trial Court vide order dated 06.07.2009 and as against the said order, the petitioner had approached this Court in W.P.No.24057/2009 which was allowed on 11.01.2011, and the proceedings was remitted with a direction to the Trial Court to consider IA.no.3 afresh and pass orders in accordance with law. The Trial Court, thereafter, had heard the application afresh and vide the order impugned, has rejected IA.no.3. 5. The material on record would go to show that defendant no.1 in her written statement has stated that the suit is bad for non-joinder of certain properties which were available for partition. Subsequently, plaintiff had filed IA.no.3 with a prayer to include the properties described in the application, in the schedule of the plaint in O.S.No.24/2008. The Trial Court virtually has considered the prayer made in the application on - 5 - HC-KAR NC: 2025:KHC:46238 WP No. 10175 of 2018 merits and has proceeded to give a finding whether the proposed properties are available for partition or not. This approach of the Trial Court is bad in law. 6. It is trite that amendment of pleadings should be normally allowed unless the same causes hardship or injustice to the other side or changes the nature of the suit. The same is not the situation in the present case. According to the defendant, the properties which are proposed to be included in the plaint schedule are not available for partition. If that is so, it is for them to file appropriate written statement and contest the claim of the plaintiff. At this stage, a finding cannot be recorded on such a plea made on behalf of the defendant. Amendments to the pleadings should be normally allowed to avoid multiplicity of proceedings and a hypertechnical approach by the Court is not permitted at this stage. Therefore, I am of the considered opinion that the Trial Court was not justified in rejecting IA.no.3. Under the circumstances, the order impugned cannot be sustained. Accordingly, the following order: 7. Writ petition is allowed. The impugned order dated 31.08.2017 passed on IA.no.3 in O.S.No.24/2008 by the Court - 6 - HC-KAR NC: 2025:KHC:46238 WP No. 10175 of 2018 of Prl. Civil Judge & JMFC, Kundapura, is set aside. Consequently, the prayer in IA.no.3 is granted. Sd/- (S VISHWAJITH SHETTY) JUDGE KK