Dismissed

Ajmeer Ali S/O Khajamainuddin v. Sri. Ravindra S/O Basavanthagouda Malipatil

Karnataka HC12 Jul 2023WP/103696/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging a Civil Court order. The lower court allowed an amendment to a specific performance suit to join a subsequent buyer as a party and seek demolition of his construction. The High Court upheld the amendment as permissible under the Specific Relief Act.

What did the court decide?

The writ petition against the order allowing the amendment application in the civil suit was dismissed as devoid of merits.

Ajmeer Ali S/O Khajamainuddin Vs Sri. Ravindra S/O… — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC-D:7111 WP No. 103696 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO. 103696 OF 2023 (GM-CPC)

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BETWEEN:

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AJMEER ALI S/O. KHAJAMAINUDDIN, AGE: 34 YEARS, OCC: AGRICULTURIST, R/O: HALEBANDIHARLAPUR VILLAGE, TQ: AND DIST: KOPPAL-583231.

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…PETITIONER

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(BY SHRI B.C. JNANAYYASWAMY, ADVOCATE)

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AND:

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SRI RAVINDRA

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S/O. BASAVANTHAGOUDA MALIPATIL, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: KAVLOOR VILLAGE, TQ: AND DIST: KOPPAL-583231.

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ROHAN HADIMANI T Digitally signed byROHAN HADIMANI T Location: High Court of Karnataka, Dharwad

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SIDDANAGOUDA S/O. JADEGOUDA MALIPATIL, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: KAVLOOR VILLAGE, TQ: AND DIST: KOPPAL-583231.

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BHARANGOUDA S/O. JADEGOUDA MALIPATIL, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: GOURI ANGALA STREET, KOPPAL-583231.

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SMT. SHIVAGANGA @ NIRMALA W/O. MAHANTHAGOUDA PATIL, AGE: 31 YEARS, OCC: HOUSE WIFE, R/O: HARTHI VILLAGE, TQ: AND DIST: GADAG-582101.

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SMT. SHIVALEELA W/O. N. SHIVARAJ, AGE: 29 YEARS, OCC: HOUSE WIFE, R/O: KARIGANUR, TQ: HOSAPETE, DIST: VIJAYANAGAR-583104.

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…RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE IN THE WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 18.01.2023 PASSED BY THE SENIOR CIVIL JUDGE AND CJM KOPPAL IN O.S NO. 64/2013 (ARISING OUT OF IA NO. 14) VIDE ANNEXURE-G, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed by the petitioner who is the 6^th

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defendant before the trial Court in O.S.No.64/2013. Respondent No.1/plaintiff filed a suit for specific performance of the agreement of sale entered into between respondent No.1/plaintiff and respondent Nos.2 to 5/defendants initially. The plaintiff sought to execute agreement of sale executed by one Sri Jadegouda Malipatil/the husband of 1^st defendant therein and the father of defendant Nos.2 to 5 had agreement of sale dated 20.11.2009. It is submitted that during the pendency of the agreement of sale in which the plaintiff had paid a total amount of Rs.21,73,000/- out of total sale

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consideration of Rs.21,78,000/- sought to enforce the agreement of sale against legal representatives of Sri Jadegouda Malipatil. During pendency of the suit, the wife of deceased-Sri Jadegouda Malipatil also died. Respondent Nos.2 to 5 herein are the surviving legal heirs to deceased-Sri Jadegouda and Smt. Lalitha, who is also deceased. It is the case of petitioner/defendant No.6 that

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during pendency of the suit and pursuant to the agreement of sale, he has purchased the property bearing plot No.1 and has constructed commercial complex. This

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being the state of affairs, respondent No.1/plaintiff filed an application under Order I Rule 10 of Code of Civil Procedure to implead the petitioner as defendant No.6 in the suit. The said application came to be rejected. Aggrieved by rejection of the said application, the plaintiff filed a writ petition in W.P.No.106791/2016, which came to be allowed and the petitioner came to be impleaded as defendant No.6 in the suit proceedings. Pursuant to the impleadment of the petitioner as defendant No.6 in the suit, the plaintiff filed an application under Order VI Rule

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17 read with Section 151 of CPC for amendment of the plaint, incorporation of certain paragraphs and for amending the prayer. The said application on contest came to be allowed. Aggrieved by the said order, allowing the amendment application for incorporation of certain pleadings and additional prayer, the 6^th defendant is before the Court challenging the said order.

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It is the contention of learned counsel for the petitioner/defendant No.6 that the impugned order passed by the Trial Court is illegal, perverse, arbitrary and same deserves to be set aside. Learned counsel further contends that the suit filed by the 1^st respondent/plaintiff is for relief of specific performance of contract entered into between the plaintiff and the original defendants i.e., defendant Nos.2 to 5, who are the legal heirs of Sri Jadegouda Malipatil, who was the executant of agreement of sale. Therefore, in the suit for specific performance, the relief sought for in the amendment application cannot be granted and the same cannot be allowed and ought not to

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have been allowed by the Trial Court, wherein relief of injunction is sought to demolish the illegally constructed portion and recovery of possession.

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It is further contended by learned counsel that

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by virtue of the amendment which is allowed by the trial Court the nature of the suit gets changed and the cause of action also changes and so also the relief sought for cannot be granted in a suit for specific performance as the petitioner/defendant No.6 has got nothing to do with the 1^st respondent/plaintiff. It is further contended by learned counsel for petitioner/ defendant No.6 that the trial Court has ignored this legal aspect and has mechanically allowed the application without taking into consideration these legalities and the requirements of law as contemplated under the Specific Relief Act, 1963. On these grounds, learned counsel seeks to allow this petition and consequently set aside the orders passed on I.A.No.14 in the impugned order.

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I have heard the learned counsel for the petitioner. I do not find any need to issue notice to the respondents as this court is not inclined to grant any relief or pass orders in favour of the petitioner. Hence, notice to respondents is not issued.

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On hearing the learned counsel for petitioner and having perused the impugned order, it is not in dispute that the agreement of sale came to be executed by one Sri Jadegouda Malipatil in favour of the plaintiff and in furtherance of the agreement of sale Rs.21,73,000/- was paid by the plaintiff out of total sale consideration of Rs.21,78,000/- and the balance amount of Rs.5,000/- was to be paid on the date of registration of the sale deed. It is an admitted fact that the petitioner/defendant No.6 purchased a plot No.1 from defendant Nos.2 to 5 and their mother Smt.Lalitha Devi on 21.05.2005 by way of registered sale deed after coming to know about the said

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sale deed the plaintiff therein made an application to implead as defendant No.6, which was initially rejected,

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thereafter the same came to be allowed by an order passed by this court in WP.No.106791/2016.

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Pursuant to the impleadment of the petitioner as defendant No.6 in the suit, the application came to be filed by the plaintiff seeking to carry out the certain amendments in the plaint and body of the plaint and also in the prayer of the plaint, which was allowed by the Trial Court. The prayer sought for in the amendment application is to incorporation in paragraph No.8(a) and also the reliefs at paragraph No.4(a) and 4(b), wherein the plaintiff has sought a direction to defendant No.6 to join in the execution of sale deed along with defendant Nos.2 to 5 in order to convey the proper title to the plaintiff and so also the decree for mandatory injunction directing the 6^th defendant to demolish illegal constructed portion of the suit property and to deliver the possession thereafter to the plaintiff.

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The Trial Court has considered the arguments of the learned counsel for petitioner as well as the counsel

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for the respondents/plaintiff and defendants, has passed a reasonable order by taking into consideration all the factual aspects so also the legal aspects and allowed the application for amendment and permitted the plaintiff to incorporate the amendment sought for in the plaint. It is relevant to note at this stage Section 22 of the Specific Relief Act, 1963, which reads as under :

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" 22. Power to grant relief for possession,

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partition, refund of earnest money, etc. — (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for—

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( a ) possession, or partition and separate possession, of the property, in addition to such performance; or

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( b ) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

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(2) No relief under clause ( a ) or clause ( b ) of sub-section (1) shall be granted by the court unless it has been specifically claimed:

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Provident that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

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(3) The power of the court to grant relief under clause ( b ) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21."

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On perusal of the above section, it is seen that

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the plaintiff in a specific performance suit can seek for possession, or partition and separate possession. He can also seek for refund of earnest money and in furtherance of any act committed by defendants who have executed the agreement of sale, plaintiff is at liberty to seek necessary reliefs and it is also mentioned in the proviso to Rule (2) that the Court dealing with the matter at any stage of the proceedings, allow him to amend the plaint on such terms as may be just for including a claim for such

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relief in the plaint. Therefore, under the circumstances, though the relief claimed in the suit is on the basis of agreement of sale between two parties. The plaintiff is at liberty under the Act, 1963 to carry out such amendments, if it is in furtherance of the agreement of sale as any relief could be claimed by the plaintiff.

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Admittedly, in the present case, the

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petitioner/defendant No.6 has purchased the plot No.1, a portion of the property agreed to be sold as claimed by the plaintiff in the suit by virtue of a registered sale deed dated 31.05.2015 from the deceased-mother of defendant Nos.2 to 5. Therefore, the amendment sought for by plaintiff will have to be rightfully considered and allowed, which is justifiable. If it is the contention of counsel for the petitioner/defendant No.6 that his plot purchased from defendant Nos.1 to 5 and mother fall outside the scope of the agreement and the property mentioned therein, it is left to the trial Court to deal with the same on the basis of material evidence adduced by the parties to the suit

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proceedings, which would however, be at the instance or liberty of the petitioner/ defendant No.6 to establish before the Trial Court. Under these circumstances, in view of the above discussions, I pass the following :

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ORDER

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(i) The petition is dismissed as devoid of merits. The order dated 18.01.2023 passed on application I.A.No.14 in O.S.no.64/2013 by Senior Civil Judge and CJM, Koppal allowing the amendment application is affirmed.

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(ii) However, liberty is inherently available to the defendants to raise all such issues to counter case of the plaintiff therein.

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(iii) No costs.

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AM/CKK

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Sd/JUDGE

Ajmeer Ali S/O Khajamainuddin v. Sri. Ravindra S/O Basavanthagouda Malipatil

Case brief

What is this about?

What did the court decide?

Ajmeer Ali S/O Khajamainuddin v. Sri. Ravindra S/O Basavanthagouda Malipatil

Case brief

What is this about?

What did the court decide?

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