Dismissed

Smt Lakshmamma v. Sri a. Jnanashekar

Karnataka HC11 Feb 2022WP/10330/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka considered a writ petition challenging the Trial Court's rejection of a belated application for amendment of plaint in a suit for permanent injunction. The court held that the amendment was applied for after commencement of trial without establishing due diligence, relying on Pandit Maharishi Mahale, and thus dismissed the writ petition.

What did the court decide?

The writ petition filed by the petitioners praying for quashing of the order rejecting their amendment application is dismissed.

Smt Lakshmamma Vs Sri a. Jnanashekar — Civil Procedure and Limitation | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF FEBRUARY 2022

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BEFORE

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THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

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WRIT PETITION NO.10330 OF 2019 (GM-CPC)

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BETWEEN:

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1 . SMT LAKSHMAMMA D/O LATE NARAYANAMMA AGED ABOUT 58 YEARS HENNUR VILLAGE ARABIC COLLEGE POST, KALYANANAGAR, BENGALURU-560043.

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2 . SRI VENKATESH S/O RAMAIAH AGED ABOUT 58 YEARS NO.707, 2^ND MAIN, 10^TH CROSS HOODI GARDEN, MAHADEVAPURA POST BENGALURU-560048.

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...PETITIONERS

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(BY SRI. ERAPPA REDDY M, ADVOCATE)

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AND:

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1 . SRI A. JNANASHEKAR AGED ABOUT 45 YEARS FATHERS NAME NOT KNOWN NAR GOVT. SCHOOL VIDYA SAGAR

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THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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2 . SRI VISWANATH AGED ABOUT 55 YEARS FATHERS NAME NOT KNOWN NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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3 . SRI SANGAMITHRA AGED ABOUT 51 YEARS FATHERS NAME NOT KNOWN NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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4 . SRI GOPAL

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AGED ABOUT 63 YEARS FATHERS NAME NOT KNOWN NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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5 . SRI GOVINDARAJ

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AGED ABOUT 48 YEARS FATHERS NAME NOT KNOWN NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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6 . SRI RAJANNA @ GOVINDARAJAPPA AGED ABOUT 39 YEARS FATHERS NAME NOT KNOWN NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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7 . SMT ASHA AGED ABOUT 35 YEARS FATHERS NAME NOT KNOWN NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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8 . SMT JAYAMMA AGED ABOUT 45 YEARS FATHERS NAME NOT KNOWN NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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9 . SRI K.M. RAMACHANDRA AGED ABOUT 55 YEARS FATHERS NAMEN NOT KNOWN NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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10 . SRI ANJANAPPA AGED ABOUT 61 YEARS FATHERS NAME NOT KNOWN

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NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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11 . SRI GOPALAPPA AGED ABOUT 63 YEARS FATHERS NAME NOT KNOWN NAR GOVT. SCHOOL, VIDYA SAGAR, THANISANDRA MAIN ROAD SHIVARAMAKARANTH NAGAR POST BENGALURU-560077.

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…RESPONDENTS

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(BY SRI. C.R. SUBRAMANYA FOR R-1,R-2,R-5 TO R-7 AND R-9

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VIDE ORDER DATED 04.01.2021 SERVICE OF NOTICE TO R-3, R-4 AND R-8, R-10 AND R-11 HELD SUFFICIENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU IN O.S.NO.5380/2016 AND QUASH THE ORDERS PASSED AS PER ANNEXURE-M ON I.A.NO.9 ON 11.02.2019 IN O.S.NO.5380/2016 BY THE ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU BY ALLOWING I.A.NO.9 AND ETC.

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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 petitioners being aggrieved by the order dated 11.02.2019, passed on I.A.No.9 in O.S.No.5380/2016 by the LXI Additional City Civil & Sessions Judge, Bangalore, have filed this writ petition.

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Brief facts leading rise to filing of this petition are as under:

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The petitioners filed the suit for the relief of permanent injunction. In the said suit, respondents appeared and filed written statement. The Trial Court framed issues. Thereafter the matter was posted for petitioners' evidence. Petitioners lead their evidence and closed their side. The matter was posted for respondents' evidence. When the matter was posted for the cross-examination of respondents' witnesses, at that stage, the petitioners have filed an application seeking for amendment of plaint.

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The Trial Court, after hearing the parties, rejected the application filed by the petitioners. Hence this writ petition.

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Heard learned counsel for petitioners and learned counsel for the respondents.

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Learned counsel for the petitioners submits that the proposed amendment does not change the nature of the case. He further submits that though there is delay in filing the application, if the said application is allowed, no injustice would be caused to the respondents. He submits that the Trial Court has committed an error in rejecting the application filed by the petitioners. Hence on these grounds, he prays to allow the writ petition.

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Per contra, learned counsel for the respondents submits that the petitioners had the knowledge about alienation and further there is a

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reference about alienation in the judgment passed in RFA No.43/2005. He further submits that the petitioners have filed the application only with an intention to delay the proceedings. He further submits that the Trial Court was justified in rejecting the application filed by the petitioners. Hence he prays to reject the writ petition.

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Perused the records and considered the

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submissions made by learned counsel for the parties.

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It is not in dispute that the petitioners have filed a suit for permanent injunction. In the said suit, respondents have filed written statement. The Trial Court framed issues. Thereafter the matter was posted for petitioners' evidence. Petitioners lead their evidence and closed their side. Thereafter, the matter is posted for respondents' evidence. When the matter is posted for the cross-examination of respondents'

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witnesses, at that stage, the petitioners have filed an application seeking for amendment of plaint on the ground that the vendor of respondents was not having title and hence respondents have not acquired any title over the suit schedule property. The petitioners have produced copy of the judgment passed in RFA No.43/2005. From the perusal of the said judgment which came to be disposed of on 04.10.2007, the same is prior to the filing of the suit. In the said judgment, Hon'ble Division Bench has made an observation in regard to the alienation made in favour of the respondents. Inspite of having knowledge about the alienation, the petitioners did not choose to file a suit for declaration challenging the alienation made in favour of respondents No.1 and 2.

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As per the proviso to Order VI Rule 17 CPC, no application for amendment shall be allowed after commencement of trial unless the Court comes to the

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conclusion that inspite of due diligence, the party could have not raised the matter before the commencement of trial. The petitioners could not have raised the matter before the commencement of trial. In view of the law laid down by the Hon'ble Apex Court in the case of PANDIT MALHARI MAHALE VS.

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MONIKA PANDIT MAHALE & ORS. [(2020) 11 SCC 549] , if the party fails to explain due diligence, then the application filed under Order VI Rule 17 of CPC is liable to be dismissed. In the present case, as observed above, the petitioners have failed to establish that inspite of due diligence, they could not raise the issue before the commencement of trial. Further, the application filed by the petitioners is also at a belated stage. The Trial Court, after considering all the materials placed on record, is justified in rejecting the application filed by the petitioners. Hence, I do not find any grounds to interfere with the

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impugned order by exercising supervisory powers under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed.

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SD/JUDGE

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Smt Lakshmamma v. Sri a. Jnanashekar

Case brief

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Smt Lakshmamma v. Sri a. Jnanashekar

Case brief

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