Dismissed

Vishwanatha N v. Swamy J N

Karnataka HC11 Jun 2021WP/42864/2016

Case brief

AI extract

What is this about?

This writ petition challenged the order allowing an amendment to a plaint under Order VI Rule 17 CPC. The petitioner argued the amendment was barred by the proviso to the rule and sought to introduce newSchedule C. The High Court found no errors in the lower court's order and dismissed the petition.

What did the court decide?

The writ petition was dismissed and no costs were awarded against the petitioner.

Vishwanatha N Vs Swamy J N — 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 11^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR.JUSTICE P.S. DINESH KUMAR

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WRIT PETITION No.42864 OF 2016 (GM-CPC)

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BETWEEN :

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VISHWANATHA N S/O LATE A NATARAJ AGED ABOUT 43 YEARS RESIDING IN A PORTION OF THE PROPERTY BEARING NO.2339, 20^TH CROSS BANASHANKARI 2^ND STAGE BENGALURU-560 070 …PETITIONER

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(BY SHRI. S.B. KRISHNA, ADVOCATE)

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AND :

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SWAMY J.N. SINCE DEAD REPRESENTED BY HIS LRS

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1 (a) SMT.B.R. MANJULA W/O LATE J.N.SWAMY AGED ABOUT 64 YEARS

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1 (b) SRI.B.N. GOUTHAM S/O LATE J.N.SWAMY AGED ABOUT 36 YEARS

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1 (c) SRI.B.N. KOUSHIK S/O LATE J.N. SWAMY AGED ABOUT 26 YEARS

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RESPONDENTS 1(a) TO 1(c) RESIDING AT NO.1411 40^TH MAIN ROAD

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J.P. NAGAR 1^ST PHASE

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BANGALORE-560 078 ...RESPONDENTS

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(BY SHRI.D.R. SUNDARESHA, ADVOCATE FOR R1(A-C))

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 08.07.2016 VIDE ANNEXURE-A PASSED BY THE COURT OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH NO.27) BANGALORE IN O.S.NO.2851/2013 ON I.A.NO.6 FILED UNDER ORDER VI RULE 17 OF THE CODE OF CIVIL PROCEDURE, 1908 AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Respondent-plaintiff has filed a suit for possession in O.S.No.2851/2013 on the file of XII Additional City Civil & Sessions Judge, Bengaluru, in respect of Schedule B property. On 19.01.2016, an application has been filed by the plaintiff under Order VI Rule 17 to amend the plaint after death of the donor. The same was resisted by the defendant, petitioner herein. On 08.07.2016, the said application has been allowed by the learned Trial Judge. Hence, this writ petition.

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Shri Krishna, learned advocate for the petitioner urged following grounds;

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Firstly, in order to overcome the admissions of PWs.1 and 2 in the cross-examination, this application has been filed;

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Secondly, the application could not have been considered in view of the proviso to Order VI Rule 17; and

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Thirdly, to introduce Schedule C, which was not in the original suit.

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Shri Sundaresh, learned advocate for respondents submitted that plaintiff was forced to shift his place of stay due to the death of donor-plaintiff's sister Smt.Rajalakshmi on 31.07.2015. At that point of time, defendant forcibly occupied Schedule C property. So far as the embargo contained in proviso to Order VI Rule 17 is concerned, he submitted that the date of death of Smt.Rajalakshmi is 31.07.2015 and the petitioner tresspassing into Schedule C after the death of Smt.Rajalakshmi. Hence, these facts could not have been pleaded in the plaint. So far as the admission and the cross-examination is concerned, he submitted that there is no admission but nonetheless, defendant will always have the right to further cross-examine the plaintiff. The legal representatives of the plaintiff will be available for cross-examination.

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Shri Krishna submitted that both PWs.1 and 2 have passed away. Therefore, they cannot be cross-examined further.

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I have carefully considered the rival contentions and perused the records.

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Amendment sought to be made in the plaint is a subsequent event after the death of Smt.Rajalakshmi on 31.07.2015 and obviously these facts could not have been included in the plaint. If PWs.1 and 2 have passed away, the legal representatives of the plaintiff will be available for cross-examination. So far as the evidence is concerned, defendant will always have the right to argue the matter on merits. Learned Trial Judge has exercised discretion and allowed the application. In the circumstance, this court finds no error in the impugned order. Resultantly this petition must fail and it is accordingly dismissed .

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No costs.

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Sd/JUDGE

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Vishwanatha N v. Swamy J N

Case brief

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Vishwanatha N v. Swamy J N

Case brief

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