Case Note & Summary
The dispute arose from a partition suit filed by the original plaintiff before the Court of I Additional Senior Civil Judge and JMFC Bagalkote, seeking partition and separate possession of family properties. The petitioner was arraigned as defendant No.1, while respondent No.1 was defendant No.3. The family consisted of the deceased father and mother and four children, including the plaintiff, the petitioner, and the contesting defendant. Defendant No.3 filed a written statement admitting the plaintiff's claim and asserting her own one-fourth share in the suit properties, expressing readiness to pay the requisite court fee. During the pendency of the suit, the petitioner and the original plaintiff entered into a settlement, leading the plaintiff to withdraw her claim. Thereafter, defendant No.3 filed an additional written statement seeking to bring additional properties into the hotchpot and claiming partition and separate possession therein. The trial court allowed her applications under Order VIII Rule 1A and Order VIII Rule 9(6) read with Order VIII Rule 6A and Section 151 of the Code of Civil Procedure, 1908, by common order dated 08.07.2026. The petitioner challenged that order in the present writ petition under Articles 226 and 227 of the Constitution of India, contending that defendant No.3 could not introduce an additional counter claim by way of additional written statement and that after withdrawal of the original suit, defendant No.3 should be relegated to a fresh suit. The High Court rejected these contentions, holding that in a partition suit a defendant who supports the plaintiff and asserts an independent right to a share is a co-plaintiff for all practical purposes, and the nomenclature assigned is not decisive. The withdrawal of the original plaintiff did not extinguish defendant No.3's independent claim because she had already entered the lis and asserted her entitlement upon undertaking to pay court fee. The additional written statement was not an independent additional counter claim but a continuation of her substantive partition claim. The court emphasized that a partition suit requires comprehensive determination of shares and all properties available for partition, and partial partition is ordinarily not maintainable. It further held that relegating defendant No.3 to a fresh suit would result in multiplicity of proceedings, duplication, and wastage of judicial time, contrary to the principle laid down in Sampath Kumar v. Ayyakannu and Another, (2002) 7 SCC 559. The High Court found no perversity or jurisdictional error in the trial court's approach and dismissed the writ petition, thereby upholding the order allowing the additional written statement and applications.
Headnote
A) Civil Procedure - Additional Written Statement and Counter Claim - Order VIII Rules 1A, 9(6) and 6A read with Section 151 of the Code of Civil Procedure, 1908 - A defendant in a partition suit who has already asserted an independent claim for share may file an additional written statement to include additional properties; it is not an independent additional counter claim but a continuation of the substantive claim - The High Court held that the trial court's allowance of I.A.Nos.19 and 20 was not perverse and prevented multiplicity of proceedings (Paras 7-17). B) Civil Procedure - Partition Suit - Defendant as Co-Plaintiff - Order VIII Rules 1A and 6A of the Code of Civil Procedure, 1908 - In a partition suit, a defendant supporting the plaintiff's claim and seeking own share upon payment of court fee is a co-plaintiff for all practical purposes; nomenclature is not decisive - The court held that defendant No.3's written statement assumed the character of a plaint and her claim survived the plaintiff's withdrawal (Paras 5-12). C) Civil Procedure - Partial Partition and Evidentiary Burden - Code of Civil Procedure, 1908 - A suit for partial partition is ordinarily not maintainable; properties available for partition should be brought within the same proceedings; the burden initially rests on the party seeking inclusion to establish joint family/ancestral nature - The High Court found no jurisdictional error in the trial court's comprehensive adjudication approach (Paras 15-17). D) Civil Procedure - Transposition of Defendant as Plaintiff - Code of Civil Procedure, 1908, Section 151 - After the original plaintiff withdrew, the trial court could have transposed defendant No.3 as plaintiff due to her independent claim and court fee undertaking; failure to transpose does not defeat substantive claim - Held that continuing as defendant cannot defeat her claim for partition (Paras 18-19). E) Civil Procedure - Avoidance of Multiplicity of Proceedings - Code of Civil Procedure, 1908, Order VI Rule 17 - The Supreme Court in Sampath Kumar v. Ayyakannu and Another, (2002) 7 SCC 559 emphasised the need to avoid multiplicity and permit appropriate amendments so that the real controversy is effectively adjudicated - The court held that relegating defendant No.3 to a fresh suit would cause duplication and waste judicial time (Paras 20-22).
Issue of Consideration
Whether a defendant in a partition suit who has already filed a counter claim could file an additional written statement to include additional properties; whether withdrawal of the original plaintiff's claim extinguished the independent claim of a defendant supporting the plaintiff; whether the trial court's order suffered from jurisdictional error or perversity.
Final Decision
The High Court dismissed the writ petition, holding that the trial court's order allowing I.A.Nos.19 and 20 did not suffer from perversity or jurisdictional error. The court held that defendant No.3's additional written statement was not an independent additional counter claim but a continuation of her substantive partition claim; the withdrawal of original plaintiff did not extinguish defendant No.3's claim; relegating her to fresh suit would cause multiplicity and waste judicial time. Consequently, the trial court's order was upheld.
Law Points
- Defendant supporting plaintiff in partition suit is co-plaintiff
- nomenclature not decisive
- withdrawal of original plaintiff does not extinguish defendant's independent claim
- additional written statement is continuation of substantive claim not independent counter claim
- partial partition not maintainable
- all properties should be brought within same proceedings
- avoid multiplicity of proceedings
- court fee requirement
