Allowed

Smt Rajalakshmi v. Smt H v Anasuyamma

Karnataka HC1 Sept 2023WP/14521/2020

Case brief

AI extract

What is this about?

Writ petition under Article 226 seeking interim relief to amend plaint in a specific performance suit after other defendants executed sale deeds. The HC set aside trial court's rejection of amendment application, held no prejudice to remaining defendant, and directed trial court to prioritize disposal.

What did the court decide?

Impugned order set aside; Interlocutory Application for amendment of plaint allowed under Order VI Rule 17; Trail Court directed to dispose of suit expeditiously.

Smt Rajalakshmi Vs Smt H v Anasuyamma — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:31535 WP No. 14521 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF SEPTEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.14521 OF 2020 (GM-CPC)

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BETWEEN:

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SMT. RAJALAKSHMI, W/O. ACHAPPA, AGED ABOUT 42 YEARS.

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SRI. V. RAJANNA, S/O. VENKATAPPA, AGED ABOUT 51 YEARS. BOTH ARE RESIDING AT NO.9, 'MATHRUSHREE NILAYA', SULTANPALYA MAIN ROAD, KANAKANAGAR, R.T. NAGAR POST, BENGALURU - 560 032.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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(BY SRI. M.V.NAVEEN REDDY, ADVOCATE)

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AND:

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SMT. H.V. ANASUYAMMA, W/O. KRISHNAMURTHY, D/O. LATE H.G. VENKATASUBBAIAH, MAJOR IN AGE, RESIDING AT NO.472, 1^ST MAIN ROAD, AMARAJYOTHI LAYOUT, R.T. NAGAR POST, BENGALURU - 560 032.

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…PETITIONERS

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SMT. H.V. JAYALAKSHMI, W/O. ANANTHARAM, D/O. LATE H.G. VENKATASUBBAIAH, MAJOR IN AGE.

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SRI. H.V. RAMESH, S/O LATE H.G. VENKATASUBBAIAH, MAJOR IN AGE.

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DEFENDANT NO.2 AND 3 ARE RESIDING AT NO.108/1, 1^ST MAIN, 2^ND CROSS, MANJUNATHA LAYOUT, CHAMUNDINAGAR MAIN ROAD, R.T. NAGAR POST, BENGALURU - 560 032.

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SRI. H.V. VENUGOPAL, S/O LATE H.G. VENKATASUBBAIAH, MAJOR IN AGE, RESIDING AT NO.410, 1^ST MAIN ROAD, HEBBAL, BENGALURU - 560 024.

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…RESPONDENTS

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(BY SRI. R. KRISHNA REDDY, ADVOCATE FOR R1 TO R3; SRI. JAI PRAKASH REDDY .M., ADVOCATE FOR R4)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 11.11.2020 PASSED BY THE XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-39), IN OS.NO.443/2014 ON INTERLOCUTORY APPLICATION (IA-8) VIDE ANNEXURE-E AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The present petition is filed under Article 227 of the Constitution of India seeking to quash the order dated 11.11.2020 passed on I.A.No.8 in O.S.No.443/2014 by the XXXVIII Additional City Civil and Sessions Judge, Bengaluru (CCH-39), wherein the application filed by the petitioners/plaintiffs under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure, was rejected.

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Brief facts giving rise to filing of this petition are

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that the petitioners have filed O.S.No.443/2014 seeking for Specific Performance of the Agreement of Sale dated 03.02.2005 by directing the defendants to execute the registered sale deed in respect of suit schedule property i.e., property bearing Sy.No.7, new Sy.No.7/1 measuring 13½ guntas situated at Guddadahalli Village (Hebbala), Kasaba Hobli, Bangalore North Taluk. During the pendency of the said proceedings, the present application

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is filed by the petitioners seeking to amend the plaint by incorporating subsequent event in the pleading and prayer

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in the scheduled property. The said application came to be rejected by the Trial Court. Being aggrieved by the same, the present writ petition is filed.

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Sri. Naveen Reddy M.V., learned counsel for the petitioners submits that, the petitioners have filed suit for Specific Performance of the agreement of sale dated 03.02.2005 against the respondents herein. The said agreement was executed by the defendants No.1 to 4 along with Smt. B.S. Lalithamma and others who are the joint owners of the suit schedule property to the extent of 28 guntas. It is submitted that the plaintiffs and defendants had a specific clause in the agreement of sale dated 03.02.2005 that the plaintiffs have to get the land de-notified from the BDA. The BDA has acquired the land for the purpose of formation of the Layout. It is further contended that the petitioners/plaintiffs have got the land de-notified from the opponent persons and immediately thereafter, one land from the opponent i.e., Smt. B.S. Lalithamma and others executed their part of the contract

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by executing registered sale deed dated 20.01.2011 in favour of the nominee of the plaintiffs and put to the nominee/purchaser in possession to the extent of 13½ guntas. It is also submitted that, the plaintiffs have made a demand to the defendants No.1 to 3 to execute the registered sale deed in respect of the remaining part of 13½ guntas. When the plaintiffs performed their part of contract and they were compelled to file the present suit by seeking Specific Performance of agreement of sale dated 03.02.2005 against the defendants herein.

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It is contended that O.S.No.7417/2011 was

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filed by the defendant No.4 against the defendants No.1 to 3 seeking partition of the schedule property i.e., property at Sy.No.7, new Sy.No.7/1 measuring 13½ guntas situated at Guddadahalli Village (Hebbala), Kasaba Hobli, Bangalore North Taluk. The said suit has ended in compromise on 11.01.2012 by allotting equal share to the defendants No.1 to 4 herein.

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It is further contended by the learned counsel

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for the petitioners/plaintiffs that in the meantime, the plaintiffs have paid an amount of Rs.29,00,000/- to the defendants and demanded for the execution of the sale deed. However, the defendants were postponing the execution of the sale deed. Hence, the petitioners were compelled to file the present suit for Specific Performance of agreement of sale dated 03.02.2005.

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During the pendency of the said suit, the defendants No.1 to 3 have settled the dispute with the plaintiffs herein and executed separate sale deeds on 04.12.2015, 04.12.2015 and 25.06.2019 respectively in so far as their respective shares. When things stood thus, under the changed circumstances, the petitioners filed an application before the Trial Court under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure, seeking for amendment of the plaint, which came to be rejected by incorrect appreciation of facts under law.

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Per contra, Sri. Jai Prakash Reddy, the learned

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counsel for the defendant No.4 supports the impugned

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order of the trial court and submits that the defendant No.4 is not signatory to the agreement in question, the very suit against the defendant No.4 is not maintainable and the present suit is filed by the petitioners on 13.01.2014 after a lapse of 8 years 11 months and 10 days from the date of agreement. It is further submitted that the partition suit between the defendants has ended in compromise on 11.01.2012, wherein the specific boundaries and demarcations were known to the plaintiffs despite the same, plaintiffs have not chosen to file an application seeking for amendment of the plaint. Hence, the present application is filed at the belated stage, which has been rightly rejected by the Trial Court.

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It is also submitted that the present petitioners

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are not diligent in prosecuting the suit and the present application is filed with an intention to drag the proceedings. It is submitted that the Trial Court has

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rightly recorded the finding that there is a different cause of action and nature of the suit itself would change if the present application is allowed. He seeks to dismiss the petition.

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I have heard the learned counsel for the

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petitioners and learned counsel for the respondents. Perused the material available on record.

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It is not in dispute that the petitioners filed the suit for specific performance for enforcement of the agreement of sale dated 03.02.2005 against the defendants herein. The agreement of sale dated 03.02.2005 is executed by the present defendants No.1 to 4 as well as Smt. B.S.Lalithamma and others to the extent of 28 guntas in Sy.No.7, new Sy.No.7/1 of Guddadahalli Village, Kasaba Hobli, Bangalore North Taluk.

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It is not in dispute that the said

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Smt.B.S.Lalithamma and others have executed the registered sale deed dated 20.01.2011 in favour of the

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plaintiffs to the extent of 13½ guntas of the land. Hence, the petitioners filed the present suit against the defendants to enforce the agreement of sale dated 03.02.2005 to the remaining extent i.e., 13½ guntas of the said Survey number.

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It is also not in dispute that, the defendant No.4 has filed O.S.No.7417/2011 seeking for partition of the present suit schedule property against the defendants No.1 to 3 and the said suit has ended in compromise on 11.01.2012 by allotting equal shares to the plaintiffs and the defendants therein (1/4 to the defendants No.1 to 4 herein in respect of suit property).

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It is also not in dispute that, the defendants No.1 to 3 have executed the registered sale deed dated 04.12.2015, 04.12.2015 and 25.06.2019 in favour of the plaintiffs in respect of their respective shares derived from the compromise decree in O.S.No.7417/2011. The present suit filed by the plaintiffs is restricted for enforcement of agreement of sale dated 03.02.2005 only

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to the extent of the share of defendant No.4, which he has derived in O.S.No.7417/2011.

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When things stood thus, the plaintiffs have filed an application seeking for amendment of his plaint, averments, prayer column and schedule column restricting his prayer to an extent of 0.3.27 guntas of the suit schedule property on the ground that during the pendency of the present suit, other defendants have performed their part of contract by executing the sale deed.

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When the suit was set down for the crossexamination of the defendant No.4, the present application is filed restricting his claim to the aforesaid extent against the defendant No.4.

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In my considered view, the Trial Court has committed grave error in recording the findings that the proposed amendment would cause injustice or prejudice to the rights of defendant No.4. The present amendment sought by the plaintiffs does not cause any prejudice or

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affect the right of the defendant No.4 as the present petitioners, who are the plaintiffs in suit have restricted their suit only insofar as the defendant No.4 is concerned and have given up their right insofar as the defendants No.1 to 3 on the ground that they have executed the sale deed during the pendency of the suit. The present application would not change the nature of the suit nor the present application is filed with any different cause of action. The findings recorded by the Trial Court is without any justification and in my considered view, the findings are perverse and contrary to law.

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Insofar as causing prejudice or injustice to the defendant No.4 is concerned, the petitioners are not seeking any additional prayer or altering their prayer or making any additional claim against the defendant No.4 than what they have sought originally in their plaint. Hence, question of causing any prejudice or injustice to the defendant No.4 would not arise.

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Insofar as the filing of the application belatedly is concerned, the petitioners were compelled to move an application after the execution of the last sale deed i.e., 25.06.2019 in their favour by the defendants No.1 to 3 as there is no delay as held by the Trial Court and petitioners cannot be called as not diligent in approaching the Court by filing an application seeking for amendment.

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The learned counsel for the defendant No.4 submits that the suit being of the year 2014, requests for direction to Trial Court to early disposal of the said suit. I found the request of the learned counsel for the defendant No.4 appears to be genuine. The learned counsel for the petitioners fairly submits that, he will not take unnecessary adjournments in the above suit, recording the said submission. The Trail Court is directed to take up the case on priority basis taking note of pendency, seniority of case pending before it and dispose of the suit as expeditiously as possible.

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For the reasons stated supra, I pass the

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following:

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O R D E R

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(1) Impugned order dated 11.11.2020 passed on I.A.No.8 in O.S.No.443/2014 passed by the XXXVIII Additional City Civil and Sessions Judge, Bengaluru, is set aside.

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(2) Interlocutory Application (I.A.No.8) filed by the petitioners under Order VI Rule 17 r/w Section 151 of the Civil Procedure Code, is allowed.

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(3) No order as to cost.

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Sd/JUDGE

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MS* List No.: 38 Sl No.: 3 CT:SNN

Smt Rajalakshmi v. Smt H v Anasuyamma

Case brief

What is this about?

What did the court decide?

Smt Rajalakshmi v. Smt H v Anasuyamma

Case brief

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