Allowed

Mrs. Magdelene Mary v. Mr. Shilingaiah

Karnataka HC6 Nov 2023WP/25474/2018

Case brief

AI extract

What is this about?

The High Court quashed the civil court's order rejecting an amendment application under Order VI Rule 17 CPC, ruling that the lower court erred by not considering material facts about the underlying dispute and that the petitioner's financial status justified leniency.

What did the court decide?

The impugned order dated 27.03.2018 of XXXIV Additional City Civil and Sessions Judge is quashed; I.A. No.IV for amendment under Order VI Rule 17 CPC is allowed.

Mrs. Magdelene Mary Vs Mr. Shilingaiah — Property and Title | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:39404 WP No. 25474 of 2018

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 6^TH DAY OF NOVEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 25474 OF 2018 (GM-CPC)

¶6

BETWEEN:

¶7

MRS. MAGDELENE MARY W/O SELVARAJ E G AGED ABOUT 70 YEARS, R/A NO. C-678, TOPLINE OORGUAM P.O., K.G.F. - 563 120. REPRESENTED BY HER SPA HOLDER E.G.SELVARAJ S/O. ELLAN AGED ABOUT 86 YEARS RESIDING AT NO.C-678 TOPLINE, OORGUAM P.O., K.G.F-563120

¶8

Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

¶9

…PETITIONER

¶10

(BY SRI. AJAY N AND SRI. SIDDAPPA V.D., ADVOCATE FOR SRI. G.A.MITHUN, ADVOCATE)

¶11

AND:

¶12

MR. SHILINGAIAH S/O LATE LINGAIAH AGED ABOUT 76 YEARS, R/AT NO. 555, 26TH MAIN ROAD BEHIND B.H.E.L. LAYOUT

¶13

¶14

NC: 2023:KHC:39404 WP No. 25474 of 2018

¶15

NANDINI LAYOUT BENGALURU - 560 096.

¶16

…RESPONDENT

¶17

(BY SRI. RAMESH ANANTHAN, ADVOCATE)

¶18

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 27.03.2018 IN O.S.NO.3787/2012 PASSED BY THE LEARNED XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE ON I.A.NO.IV VIDE ANNEXURE-A AND ENABLE THE PLAINTIFF/PETITIONER TO CARRY OUT THE AMENDMENT AS SOUGHT FOR.

¶19

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

¶20

ORDER

¶21

This petition is by the plaintiff in

¶22

O.S.No.3787/2012 on the file of the XXXIV Additional City Civil and Sessions Judge, Bengaluru [for short, ‘ the civil Court ’]. The petitioner is aggrieved by the civil Court’s order dated 27.03.2018, and the civil Court by this order has rejected the petitioner’s application [ I.A.No.IV ] under Order VI Rule 17 of the Code of Civil Procedure, 1908 essentially on the ground that the application is filed after

¶23

¶24

NC: 2023:KHC:39404 WP No. 25474 of 2018

¶25

commencement of the evidence and the petitioner, who is enjoined in law to establish due diligence, has failed to establish the same.

¶26

The petitioner’s suit in O.S No.3787/2012 is for permanent injunction restraining the defendant from interfering with the plaintiff’s possession and enjoyment of the schedule property viz ., site Nos.29 and 30 in Sy.No.67 situated at Laggere Village, Yeshwanthapura Hobli, Bengaluru North Taluk. The petitioner has referred to the earlier suits in O.S.No.3983/1994 and O.S.No.6101/1996, and insofar as the suit in O.S.No.3983/1994, the petitioner has stated that the plaintiff therein [ Sri. Lakshman Gowda ] had filed a memo for dismissal of the suit and had abandoned the suit. The petitioner has asserted a cause of action inter alia based on the disposal of these suits, and it is contended that the proposed amendment is to essentially amend the

¶27

¶28

NC: 2023:KHC:39404 WP No. 25474 of 2018

¶29

plaint to assert that the suit in O.S No. 3983/1994 is not disposed of on a memo but is decided on merits.

¶30

The learned counsel for the petitioner submits that pleading in the plaint that suit in O.S.No.3983/1994 is disposed of on a memo is factually incorrect inasmuch as the suit is decided on merits, and that the inadvertent error in mentioning the outcome of the suit in O.S.No.3983/1994 and the cause of action based thereon could be construed as fatal to the suit, and therefore the amendment is necessary.

¶31

The learned counsel to demonstrate that the error in mentioning the outcome of the suit is an inadvertent error, invites the attention of this Court to the statements in paragraph No.11 of the plaint. The records are perused, and this Court must opine that the suit in O.S.No.3983/1994 is decided on merits and is not disposed of on the strength of a memo for withdrawal filed by the plaintiff therein.

¶32

¶33

NC: 2023:KHC:39404 WP No. 25474 of 2018

¶34

This amendment would only be consequential and stand corroborated from the records relating to the suit in O.S.No.3983/1994.

¶35

This Court is of the considered view that

¶36

the question of due diligence must be examined in the light of the nature of the amendment, and the application cannot be rejected solely on the ground that it is filed after the commencement of evidence. If the delay in filing the application is reasonably explained that could be a relevant factor to decide on due diligence. The petitioner is categorical that she is a person from poor strata of the society and is handicapped in the conduct of the proceedings.

¶37

Crucially, this Court must also mention

¶38

that if the earlier disputes between the petitioner and the third parties, including the respondent, related to the existence of a road to the North of the subject property, the present dispute relates to the respondent’s claim to a portion of the petitioner’s

¶39

6 - NC: 2023:KHC:39404 WP No. 25474 of 2018

¶40

property. In the aforesaid circumstances, this Court must opine that the civil Court has failed to consider material circumstance and hence, there is an error in rejecting the petitioner’s application. Therefore, the following:

¶41

ORDER

¶42

a) The petition is allowed, and the civil Court’s impugned order dated 27.03.2018 in O.S.No.3787/2012 on the file of the XXXIV Additional City Civil and Sessions Judge, Bengaluru is quashed. Consequentially, the application [I.A.No.IV] under Order VI Rule 17 of CPC for amendment is allowed.

¶43

b) The petitioner is permitted to carry out amendment as now sought for within such time as may be allowed by the civil Court.

¶44

¶45

NC: 2023:KHC:39404 WP No. 25474 of 2018

¶46

c) It is observed that the respondent shall

¶47

be at liberty to file additional written statement within such time as may be permitted by the civil Court.

¶48

SD/JUDGE

¶49

Mrs. Magdelene Mary v. Mr. Shilingaiah

Case brief

What is this about?

What did the court decide?

Mrs. Magdelene Mary v. Mr. Shilingaiah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S Metals and Steels Private Limited Vs Bangalore Electricity Supply Company Limited

Sri N Harish Vs the State of Karnataka

M/S Pranava Electronics Private Limited Vs M/S Arvind Limited

Mr C L Rodrigues @ Mr Luvi Rodrigues Vs Mrs Philomena Rodrigues

Smt. Govardhini Jayakumar Thotambailu Vs Dr. K v Chidananda

New Bonanza Impex Private Limited Vs Scholar Alley Private Limited