THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION No.1616 of 2010 Date: 14.12.2010 Between: M/s. NATCO Pharma Limited ..... PETITIONER AND C.Harika and others .....RESPONDENTS The Court made the following : HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION No. 1616 OF 2010 ORDER: This revision is directed against the order dated 22.01.2010 passed in I.A.No.383 of 2009 in O.S.No.112 of 2007 on the file of the I Additional Senior Civil Judge (FTC), Mahabubnagar, whereby and whereunder, the learned Additional Senior Civil Judge dismissed the application filed by the petitioner seeking direction to the plaintiffs for inclusion of certain properties in the suit schedule. 2. The petitioner is defendant No.2 in O.S.No.112 of 2007. Respondent Nos. 1 to 3 are the plaintiffs and respondent No.4 is defendant No.1 in the said suit. The plaintiff filed the suit for partition and separate possession of their shares in the suit schedule property. The petitioner came to be added as defendant No.2, since he purchased items 5 to 8 and 11 to 13 of the suit schedule properties from defendant No.1. The petitioner-D.2 filed a written statement contending that the suit is a collusive one and the same has been got filed by defendant No.1 to avoid the sale deed executed by D.1 in its favour. The further plea of the petitioner is that some of the properties owned by joint family comprising of D.1 and plaintiffs have been left out and thereby depriving the petitioner to plead for equity in the event of suit being decreed. The petitioner- D.2 filed I.A.No.383 of 2009 under Section 151 read with Order 6 Rule 17 C.P.C. seeking direction to the plaintiffs to add the following properties to the suit schedule: 2. Residential house bearing No.3-9-205/95 in Plot bearing No.95 in Sy.No.18 of Mansurabad, Hyderabad City admeasuring 146 Sq.Yards. 3. Plot No.4 in Sy.No.18 extent 214 Sq.Yards situated at Mansurabad, Hyderabad City.” 3. In the affidavit filed in support of the petition, it is stated that the properties detailed in the schedule to the amendment petition are part and parcel of the joint family properties and they are also to be included for effective adjudication of the dispute between the parties. 4. Para-3 of the affidavit filed in support of the petition reads as hereunder: “I submit that it is borned by record that the husband of PW-1 purchased Plot No.4 in Sy.No.18 extent 214 yards at Mansurabad, Hyderabad under a registered sale deed bearing document No.1912/2006 dated: 20th day of March 2006 with the sale consideration and compensation amount paid by our company and the said plot is the joint family property of the parties to the suit. It is admitted by PW-1 in the cross- examination that there is a residential house of the parties to the suit at Mekaguda village bearing H.No:-1-72. All the said properties are deliberately omitted from inclusion in the suit schedule properties and the self acquired properties of D1 which were purchased by this petitioner were included as the very suit is filed by PW-1 on behalf of her minor daughters in active collusion with the defendant No.1 her husband. All the said properties are to be included in the suit schedule without whose inclusion the suit for partition and separate possession cannot be effectively adjudicated as I am advised that in a suit for partition all the properties available for partition are to be shown in the schedule of property of the suit and all the persons who are entitled for shares are to be added as parties to the suit. In view of the above matter the properties said above are to be included in the suit schedule property.” 5. The plaintiffs filed a counter resisting the application. It is pleaded in the counter that the mother of the plaintiffs got Ac.5.00 in survey Nos.750 and 759 and Ac.1.01 guntas in survey No.761 under registered gift deed executed by D.1 and therefore neither plaintiffs nor D.1 got any share in those properties. It is also pleaded that some of the properties fell to the share of other brothers of defendant No.1. 6. The learned Additional Senior Civil Judge after considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application on the ground that the petitioner can plead for dismissal of the suit if ultimately the petitioner is able to prove that some of the joint family properties are not included in the suit schedule. 7. Para-9 of the order passed by the Additional Senior Civil Judge is to be noted and it reads thus: “For all the aforesaid reasons, the Court holds that the petitioner failed to prove that it is entitled to directions to the plaintiff as prayed for. The point is answered accordingly.” 8. Hence, this Revision. 9. Heard learned counsel appearing for the petitioner and the learned counsel appearing for respondent Nos. 1 to 3. 10. Learned counsel appearing for the petitioner submits that PW.1, who is the guardian of respondent Nos. 1 to 3, in the cross examination admits that all the properties owned by joint family are not mentioned in the schedule and therefore, the trial Court is not justified in dismissing the application filed by the petitioner under Section 151 read with Order 6 Rule 17 C.P.C. 11. Per contra, learned counsel for respondent Nos. 1 to 3 submits that the properties are purchased by PW.1 out of her own funds and the said properties do not form part and parcel of the joint family properties. The question whether the properties are purchased from the own funds of PW.1 or not, is required to be examined in the suit. It is suffice to say that PW.1 while being cross examined admits of joint family owning properties other than the properties shown in the suit schedule. The plea of respondent Nos. 1 to 3 that the properties sought to be included in the suit schedule fell to the share of other brothers of defendant No.1 is to be examined in the trial of the suit. Therefore, the reason given by the trial Court for dismissal of the application cannot be sustained. Accordingly, the Civil Revision Petition is allowed by setting aside the order dated 22.01.2010 passed in I.A.No.383 of 2009 and consequently, I.A.No.383 of 2009 stands allowed. No order as to costs. _________________________ B.Seshasayana Reddy, J Date. 14.12.2010 Ivd