Dismissed

Smt Jayamma Since Dead by Lrs Sri M Venkatesha v. the Bruhath Bengaluru Mahanagara Palike

Karnataka HC1 Dec 2021WP/15761/2021

Case brief

AI extract

What is this about?

Petitioners challenged the civil court's dismissal of an application to amend the plaint description in a property suit. The High Court found the plea of accidental slip improbable given prior litigation conduct and refused interference, dismissing the writ petition.

What did the court decide?

Petition stands rejected; writ petition against civil court order dismissing amendment application is dismissed.

Smt Jayamma Since Dead by Lrs Sri M Venkatesha Vs the… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO. 15761/2021 (GM-CPC)

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BETWEEN :

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SMT. JAYAMMA SINCE DEAD BY LRS

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(A) SRI M VENKATESHA AGED ABOUT 62 YEARS SON OF LATE MUNISWAMY HUSBAND OF LATE JAYAMMA R/AT OLD NO. 187 BELIMUTT ROAD BHAKSHI GARDEN CHIKPET SOUTH BENGALURU - 560 053

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(B). SMT. BHARATHI AGED ABOUT 38 YEARS W/O SRINIVASA NO. 121 VALAGERAHALLI MAIN ROD, GOVERNMENT PRIMARY SCHOOL KENGERI BENGALURU - 560 060.

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(C). SMT. CHAYA AGED ABOUT 36 YEARS W/O VENKATESHA S. NO. 353/1, DR. T.C.M ROYAN ROAD, NEAR MURUGAN TEMPLE BENGALURU - 560 053.

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(D). SMT. ROOPA AGED ABOUT 34 YEARS W/O MANIKANTA R/AT NO. 187 BELIMUTT ROAD, BHAKSHI GARDEN CHIKPET SOUTH BENGALURU - 560 053.

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(E). SRI V PRADEEP AGED ABOUT 31 YEARS SON OF LATE JAYAMMA R/AT NO. 187 BELIMUTT ROAD, BHAKSHI GARDEN CHIKPET SOUTH BENGALURU - 560 053.

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... PETITIONERS

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(BY SRI. CHENNARAYA REDDY S, ADVOCATE)

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AND :

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THE BRUHATH BENGALURU MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER RANI CHENNAMMA CIRCLE, BENGALURU - 560 002.

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THE BRUHATH BENGALURU MAHANAGARA PALIKE REPRESENTED BY ITS DEPUTY COMMISSIONER (WEST) SIRUR PARK MALLESWARAM BENGALURU - 560 003.

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THE ASSISTANT REVENUE OFFICER BRUHATH BENGALURU MAHANGARA PALIKE CHIKPET DIVISION, CHIKPET BENGALURU - 560 053.

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SMT. YELLAMMA AGED ABOUT 54 YEARS WIFE OF LATE SHARMA R/AT NO. 187, BHAKSHI GARDEN COTTON PET MAIN ROAD, BENGALURU - 560 053.

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... RESPONDENTS

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(BY SRI. N.K. RAMESH., ADVOCATE FOR R1 TO R3; SRI. M. VENKATAPPA., ADVOCATE FOR C/R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET ASIDE THE ORDER DATED 11.08.2021 MADE ON INTERLOCUTORY APPLICATION FILED UNDER ORDER 6 RULE 17 CIVIL PROCEDURE CODE IN O.S. NO. 5507/2009 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-9), BENGALURU CITY, AS PER ANNEXURE-F PRAYING FOR AMENDMENT AND ALLOW THE APPLICATION UNDER ORDER 6 RULE 17 OF CIVIL PROCEDURE CODE FILED FOR AMENDMENT OF THE PLAINT.

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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The learned counsels for the parties are heard with their consent for final disposal in the light of the assertion that the suit in O.S. NO. 5507/2009 is set down for final arguments. The petitioners are the plaintiffs in O.S. No.5507/2009 on the file of the XXVII

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Additional City Civil and Sessions Judge, Bengaluru [for short, ' the civil Court ']. The petitioners have impugned the civil Court's order dated 11.08.2021, and the civil Court by this impugned order has dismissed the petitioners' application under Order VI Rule 17 of the Code of Civil Procedure, 1908 [for short 'CPC'].

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The petitioners have continued the suit in O.S. NO. 5507/2009 filed by the original plaintiff, Smt. Jayamma, for declaration of title and mandatory injunction for the property described as measuring 15 feet x 20 feet and bearing No.187, Bhakshi Garden, Cottonpet Main Road, Chickpet, Bengaluru with certain boundaries [the subject property].

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The petitioners' case is that the original plaintiff's brother, late Shama, who is now represented by the fourth respondent, purchased the subject property comprised in a larger extent under the sale

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deed dated 30.07.1976 and gifted a portion thereof (the subject property) in favour of the original plaintiff under the Gift Deed dated 6.8.1984. There was no dispute about the respective possession or the title until the demise of late Shama. However, on his demise, the fourth defendant, his wife, obtained khata for the larger property including the subject property and hence the suit. The fourth respondent has resisted the suit inter alia disputing the description of the subject property in the plaint. One of the specific grounds urged by the fourth respondent is that the suit must be dismissed because of the mis-description of the subject property.

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The parties have lead their evidence and when the suit is listed for arguments, the petitioners have filed the present application for amendment. The petitioners, by this application propose to correct the western and the northern boundary of the subject property asserting that the error in describing these two

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boundaries was noticed after the suit is listed for arguments and the error in the description of the subject property is an accidental slip. The application is resisted asserting inter alia that the proposed amendment would enable the petitioners to resile from the statements made in the cross examination in the light of the specific Issue as regards the burden on the petitioners to establish the existence of the subject property as described by them in the plaint.

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The civil Court has rejected the petitioners' application observing that the fourth respondent's defense is specific and the petitioners cannot assert that they were not aware of the error until the suit was listed for arguments. The civil Court has also opined if the application is allowed, there will be change in the context of the dispute and the trial in the suit will have to be re-commenced, and that the petitioners are not bona fide in their application. The civil Court has

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further opined that the petitioners do not, in filing the application, satisfy the test of due diligence as required for considering the application for amendment after the trial is commenced.

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The learned counsel for the petitioners

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submits that the central question for consideration in the suit is whether the petitioners are able to establish the existence of the property as described by them in the context of their case that the subject property is part of the larger property purchased by late Shama, and he has transferred the subject property in favour of his sister, the original plaintiff, Smt. Jayamma. The amendment will not change this central question, and the learned counsel for the petitioners also submits that the petitioners do not propose to lead any further evidence and the suit could be heard and disposed of without further evidence.

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The learned counsel for the contesting fourth

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respondent submits that the reason offered for the amendment viz., that there is an accidental slip in describing the boundaries on the western and the northern side of the subject property is a ruse. The fourth respondent has taken a definite plea denying the identity of the property as asserted by the petitioner leading to an Issue being cast. The petitioners' witness is cross-examined in detail as regards the western and the northern boundaries. The proposed amendment would enable the petitioners to resile from their admission in the cross examination in this regard. The petitioners may not adduce to lead evidence, but the fourth respondent would be constrained to lead evidence. He also submits that this Court must assess the merits of the case in the light of the civil Court's finding on the lack of due diligence.

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The merits of the impugned order will have to be examined necessarily in the light of the undisputed fact that the parties have gone to trial knowing that the dispute is also about the identity of the property as asserted by the petitioner, and the parties have lead evidence accordingly. The petitioner says that the description of the property is because of a accidental slip, but this would seem highly improbable in the circumstances mentioned. If there is a change in the very description of the subject property, the fourth respondent could be put to irreparable injustice. Further, the amendment proposed by the petitioner, in the facts and circumstances of the case, should also fail at the threshold of due diligence.

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For these reasons, and the fact that the parties have gone to trial knowing that the description of the subject property will be one of the questions that will have to be decided in the light of the rival evidence

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on record, this Court is not persuaded to opine that this Court must interfere with the impugned order.

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Therefore, the petition stands rejected.

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Sd/- JUDGE

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AN/-

Smt Jayamma Since Dead by Lrs Sri M Venkatesha v. the Bruhath Bengaluru Mahanagara Palike

Case brief

What is this about?

What did the court decide?

Smt Jayamma Since Dead by Lrs Sri M Venkatesha v. the Bruhath Bengaluru Mahanagara Palike

Case brief

What is this about?

What did the court decide?

What the court decided

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