MUKKATTIRA BEENA MANDANNA Vs. MUKKATTIRA AIYANNA

JUDGEMENT

(1.) This petition is filed seeking review of the order dtd. 17/3/2023 passed in W.P.19448/2022.

(2.) Heard Sri H.N.Manjunath Prasad, learned counsel for the petitioner. According to Sri Manjunath Prasad, the error in the order sought to reviewed is wrong application of ratio laid down in Ashok Kumar Kalra vs Wing Cdr . Surendra Agnihotri and Others [AIR online 2019 SC 1525]. He submits that according to Ashok Kumar Kalra, counter claim can be raised at any stage before commencement of recording of evidence on behalf of the plaintiff. In the case on hand, by the time the first respondent applied for amendment to insert the counter claim, cross-examination of plaintiff was over and even the evidence of first defendant was recorded. Therefore this court should not have held that the counter claim could be allowed as an exceptional circumstance. This is an error apparent on the face of record according to Sri Manjunath Prasad.

(3.) I have perused the order under review. The trial court permitted the written statement to be amended for setting up the counter claim following the judgment of this court in the case of Smt. Rekha vs Smt. Lalithamma and Others [W.P .55337/2018]. Noticing the fact that the suit was for partition and according to the first respondent one property had been left out in the schedule of the plaint, the first respondent was allowed to amend the written statement to set up counter claim. Even though the plaintiff's cross-examination was over and the first defendant's evidence had also been recorded by the time application for amendment was made, counter claim could still be permitted to be raised, for, the suit is for partition in which all the properties available for partition are to be included. If in this background, writ petition was dismissed, it cannot be said that the principle in Ashok Kumar Kalra was wrongly applied. I do not think the ground that Sri Manjunath Prasad has raised can be considered as an error apparent on the face of record. Therefore I do not find good ground to admit the review petition. Review petition is dismissed.