The court disallowed amendments to pleadings that would change the nature of a partition suit or introduce claims not previously included, emphasizing the need to protect parties' rights.

ORDER :

1. Petitioner-defendant No.13 is at the doors of this Court calling in question order dated 15-12-2023, by which the concerned Court allows application in I.A.No.7 filed under Order VI Rule 17 of the CPC seeking amendment of the plaint.

2. Facts in brief, germane, are as follows:

2.1. Brief facts that led the parties to the suit are necessary to be noticed. One Kodigehalli Thimmappa had 3 children namely K.T.Venkatappa, K.T.Narayanappa and Chennamma. K.T.Narayanappa had instituted a suit for partition in O.S.No.1309 of 1980 in respect of the property belonging to Kodigehalli Thimmappa. The suit was decreed by awarding half share to K.T.Venkatappa’s branch and half share to K.T.Narayappa’s branch. Final Decree Proceedings (‘FDP’ for short) were instituted in respect of the preliminary decree so drawn in FDP No.97 of 2002. Against the order passed in FDP, the parties therein approach this Court in RFA No.1489 of 2016. The said RFA is pending consideration at the hands of this Court.

2.2. When things stood thus, the 3^rd respondent/plaintiff institutes a suit for partition and separate possession in O.S.5501 of 2021. Written statement is filed by the defendants therein. On 22-07-2022 the 4^th respondent/defendant No.2 files her written statement and registers a counter claim in O.S.No.5501 of 2021. The counter claim is said to have included the properties belonging to the branch to the Chennamma i.e., the properties belonging to H.Narayanappa and K.N.Ramaiah which were allegedly purchased by K.T.Venkatappa in their name. On 09-12-2022, defendants 1 and 3 files I.A.No.7 to amend the written statement to include additional properties to their counter claim. The petitioner/defendant No.13 files her objections to the said application seeking amendment on certain grounds. The said application comes to be allowed by the concerned Court in terms of the order dated 15-12-2023. The allowing of the application is what has driven the petitioner to this Court in the subject petition.

3. Heard Sri Jayakumar S Patil, learned senior counsel appearing for petitioner, Sri T Seshagiri Rao, learned counsel appearing for respondents 1 and 2, Smt Devi Sowmya L, learned counsel appearing for respondent No.3 and Sri Shamanth Naik, learned counsel appearing for respondent No.4.

4. Learned senior counsel appearing for the petitioner Sri Jayakumar S. Patil taking this Court through the documents appended to the petition would seek to demonstrate that the properties sought to be included by defendant No.1 and 3 do not belong to K.T.Venkatappa. Since the subject matter of the partition suit is with regard to the properties belonging to the branch of K.T.Venkatappa, other properties that do not belong to him cannot be included in the suit. The amendment cannot be allowed on the ground that the same properties have already been included by the 2^nd defendant, since every amendment has to be considered individually on its own merits. The plea of the respondents that the properties belong to K.T.Venkatappa, but purchased in the name of H.Narayapppa and K.N.Ramaiah is in violation of the provisions of the Prohibition of Benami Property Transactions Act, 1988.

5. Per-contra, learned counsel Sri T Seshagiri Rao, representing the respondents 1 and 2/defendants 1 and 3 would submit that the proposed amendment does not introduce a new case or change the nature of the suit, since the same properties have already been included by defendant No.2 in her written statement and the counter claim. Petitioner/defendant No.13 had also filed an application seeking amendment of written statement in I.A.No.8 contending that the properties of K.N.Ramiah cannot be included pursuant to the defendant No.2 filing her written statement and the counter claim. The trial Court allows a