Dismissed

Sri Pradeep Kumar v. Mrs Narasamma

Karnataka HC8 Aug 2023WP/1256/2022

Case brief

AI extract

What is this about?

A writ petition under Article 227 seeking to quash the rejection of an application to amend a plaint for specific performance of an oral agreement. The High Court held the trial Court justified in refusing the amendment filed before arguments as no due diligence was shown and it was impermissible to change the case stand.

What did the court decide?

Writ petition rejected; impugned order of VIII Addl. City Civil and Sessions Judge regarding rejection of amendment application upheld.

Sri Pradeep Kumar Vs Mrs Narasamma — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:28022 WP No. 1256 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 1256 OF 2022 (GM-CPC)

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BETWEEN:

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SRI PRADEEP KUMAR S/O RAMA REDDY AGED ABOUT 40 YEARS R/AT NO.34, 3^RD CROSS, SAKALAVARADA ANNAIAH REDDY LAYOUT, DODDA BANASWADI, NEAR BALDWINS SCHOOL BANGALORE-560 043. …PETITIONER (BY SRI. ANIL KUMAR R, ADV. FOR SRI. NATARAJA H C, ADV.)

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AND:

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Digitally signed by NANDINI B G Location: HIGH COURT OF KARNATAKA

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MRS. NARASAMMA D/O LATE KEMPAIAH AGED ABOUT 60 YEARS NO.111, HOYSALA NAGAR 2^ND MAIN, RAMAIA LAYOUT BANGALORE-560 016. …RESPONDENT (BY SMT. NEERAJA KARANTH, ADV. FOR SRI K SRIHARI, ADV.)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE SET-ASIDE THE ORDER DATED 04.01.2022 PASSED BY THE VIII ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU IN REJECTING THE APPLICATION FILED BY THE PETITIONER/PLAINTIFF I.E., ON IA NO.IV UNDER ORDER VI RULE 17 READ WITH SECTION 151 OF CPC IN O.S.NO.129/2018 VIDE ANNX-A.

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

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2 - NC: 2023:KHC:28022 WP No. 1256 of 2022

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ORDER

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The petitioner/plaintiff in O.S.No.129/2018 on the file of the City Civil and Sessions Judge at Bengaluru is before this Court under Article 227 of the Constitution of India, challenging rejection of application filed under Order VI Rule 17 of CPC to amend the plaint.

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Heard the learned counsel Sri.Anil Kumar R, for Sri.Nataraju H.C., learned counsel for the petitioner and Smt.Neeraja Karanth for Sri.K.Srihari, learned counsel for the respondent. Perused the writ petition papers.

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3. Learned counsel for the petitioner would submit that

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the suit is one for specific performance of oral agreement dated 01.12.1997 to sell the suit schedule property in favour of petitioner/plaintiff. Learned counsel would submit that the prayer and suit averments states that the defendant shall execute sale deed on receiving the balance sale consideration of Rs.50,000/-. But, the learned counsel would submit that the amendment sought by the petitioner/plaintiff is that the petitioner/plaintiff has paid

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3 - NC: 2023:KHC:28022 WP No. 1256 of 2022

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more than what is agreed between the parties and further to amend the prayer directing the defendant to come and execute the sale deed as per the oral agreement dated 01.12.1997, since the defendant has already received more than the consideration amount through cheque. Learned counsel would submit that the petitioner/plaintiff could not make the averment which is now sought to be added by way of amendment by inadvertence and by mistake. As the same is required for proper adjudication of lis between the parties, the plaintiff/petitioner thought it fit to file amendment application, when the matter was at the

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stage of arguments. Thus, he prays for allowing the application by setting aside the impugned order.

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Per contra, learned counsel Smt.Neeraja Karanth for respondent/defendant would submit that the application under Order VI Rule 17 of CPC to amend the plaint is filed when the matter was set down for arguments and at that belated stage, the application is not maintainable. Further, learned counsel would submit that since the

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4 - NC: 2023:KHC:28022 WP No. 1256 of 2022

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amendment sought is post-trial amendment, the petitioner/plaintiff has to satisfy the proviso to Rule 17 of Order VI of CPC. The petitioner/plaintiff has not stated anything about due diligence, as to why he could not seek amendment earlier, as sought in the present application. Further, learned counsel would submit that the respondent/defendant acquired title over the property only on 27.11.2014 whereas the petitioner/plaintiff is seeking specific performance of oral agreement dated 01.12.1997, which is liable to be rejected.

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Having heard the learned counsel for the parties and on perusal of the writ petition papers, the only point which falls for consideration is as to whether the trial Court is justified in rejecting the amendment application filed by the petitioner/plaintiff under Order VI Rule 17 of CPC to amendment the plaint.

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Answer to the above point would be in the affirmative and the trial Court is justified in rejecting the amendment application for the following reasons:

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5 - NC: 2023:KHC:28022 WP No. 1256 of 2022

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The plaintiff’s suit is one for specific performance of oral agreement dated 01.12.1997 and to execute the sale deed on collecting the balance sale consideration of Rs.50,000/-. But, by way of amendment, the petitioner/ plaintiff is seeking amendment to the prayer stating that the defendant has received consideration more than agreed upon and hence, the defendant is liable to execute the sale deed in terms of oral agreement dated 01.12.1997. Further, the petitioner/plaintiff intends to add averments to state that the defendant has received consideration amount more than the agreed amount.

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Admittedly, the application for amendment is filed when the matter was set down for arguments. Order VI Rule 17 of CPC empowers the Court to permit amendment of pleadings at any stage of the proceedings. But if the amendment sought is after commencement of trial, before permitting the am endment, the Court shall be satisfied that in spite of due diligence the party could not have raised the matter before commencement of the trial. No

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6 - NC: 2023:KHC:28022 WP No. 1256 of 2022

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averment is forthcoming in the affidavit accompanying amendment application with regard to due diligence and why the petitioner / plaintiff could not raise amendment before trial or during the course of trial. The amendment if permitted would prejudice the case of the defendant. By way of amendment, the plaintiff intends to take entirely a different stand that he has paid more than what is agreed, which is impermissible at this stage of the proceedings. In fact, it is a matter which was within his knowledge as on the date of filing the suit itself. Hence, the trial Court is justified in rejecting the application.

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The petitioner has not made out any ground to interfere with the impugned order dated 04.01.2022 rejecting I.A.No.IV by the VIII Additional City Civil and Sessions Judge at Bengaluru. Accordingly, the writ petition stands rejected.

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Sd/JUDGE

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MPK CT:bms

Sri Pradeep Kumar v. Mrs Narasamma

Case brief

What is this about?

What did the court decide?

Sri Pradeep Kumar v. Mrs Narasamma

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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