Dismissed

Smt Gopamma v. v Lokesh

Karnataka HC10 Jun 2024WP/10311/2024

Case brief

AI extract

What is this about?

The High Court disposed of this writ petition filed by a defendant challenging the trial court's refusal to frame an additional issue on property title and its allowance of a plaint amendment in a specific performance suit. The High Court found no merit and dismissed the petition.

What did the court decide?

The writ petition seeking to set aside the impugned orders of the trial court dismissing the additional issue and allowing the amendment application was dismissed.

Smt Gopamma Vs v Lokesh — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:20615 WP No. 10311 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO.10311 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. GOPAMMA W/O. LATE SHANKARAPPA AGED ABOUT 65 YEARS PRESENTLY RESIDING AT NO.56, 1ST CROSS MARAMMA TEMPLE STREET SRIRAM LAYOUT, VIRGONAGAR POST AVALAHALLI, BENGALURU-560 049.

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…PETITIONER

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(BY SRI JAGADEESHA S.R., ADVOCATE)

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Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka

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AND:

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V. LOKESH S/O SRI VENKATARAMAPPA AGED ABOUT 41 YEARS R/AT GATTAMADHAMANGALA ROBERTSONPET HOBLI BANGARPET TALUK (NOW KGF TALUK) KOLAR DISTRICT-563 122.

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SRI NAGARAJ S/O LATE SHANKARE GOWDA AGED 35 YEARS,

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NC: 2024:KHC:20615 WP No. 10311 of 2024

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3. SURESH

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S/O LATE SHANKARE GOWDA AGED ABOUT 38 YEARS, RESPONDENT NOS.2 & 3 ARE RESIDING AT MINDAHALLI VILLAGE TAYALUR HOBLI MULABAGAL TALUK KOLAR DISTRICT-563 102.

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…RESPONDENTS

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THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE AN IMPUGNED ORDER PASSED BY LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND JMFC-KGF IN RESPECT OF I.A.NO.7 FILED BY PETITIONER UNDER ORDER 6 RULE 17 READ WITH SECTION 151 OF CPC DATED 16.06.2023 IN O.S.NO.84/2016 VIDE ANNEXURE-L CONSEQUENTLY ALLOWING I.A.NO.7 AS PRAYED FOR AND SET ASIDE AN IMPUGNED ORDERS PASSED BY LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND JMFC-KGF IN RESPECT OF I.A.NO.8 FILED UNDER ORDER 14 RULE 5(1) READ WITH SECTION 151 OF CPC AND I.A.NO.9 FILED UNDER ORDER 6 RULE 17 OF CPC BOTH DATED 03.02.2024 IN O.S.NO.84/2016 VIDE ANNEXURE-M AND N, ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2024:KHC:20615 WP No. 10311 of 2024

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ORDER

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Aggrieved by the order passed on I.A.No.8 filed under Order XIV Rule 5 of Code of Civil Procedure, 1908 (CPC) and the order passed on I.A.No.9 filed under Order VI Rule 17 of CPC both dated 03.02.2024 for amending the plaint by the plaintiff, in O.S.No.84/2016 by the Court of the Additional Senior Civil Judge & JMFC, KGF, defendant No.1 therein has preferred this writ petition.

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Respondent No.1 is the plaintiff in O.S.No.84/2016. He has filed a suit for specific performance in respect of the plaint schedule property with the following prayers:

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"Wherefore it is prayed that this Honourable Court may kindly be pleased to pass Judgment and Decree in favour of the plaintiff and against the Defendant:

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(a) for Specific Performance of Sale Agreement dated 24.06.2016 directing the defendants to execute the Sale Deed in favour of the plaintiff by receiving the balance of Sale consideration of Rs.2,35,000/- AND ON DEFENDANT'S FAILURE TO DO SO for execution of the Sale

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4 - NC: 2024:KHC:20615 WP No. 10311 of 2024

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Deed in favour of the plaintiff through court process;

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b) consequentially directing the defendant to quit, vacate and hand over vacant possession of the schedule property to the plaintiff in pursuance of the Sale Deed;

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c) for court costs and such other reliefs the plaintiff is entitled to from the hands of this Honourable Court."

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The petitioner / defendant No.1 has opposed the said suit by filing the written statement and based on the pleadings, the trial Court has framed the following issues:-

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"1. Whether the Plaintiff proves that the Defendants have executed agreement of sale dated 24.06.2016 in favour of Plaintiff and agreed to sell the suit schedule property for total consideration amount of Rs.5,35,000/and received Rs.3,00,000/as advance sale consideration amount?

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2. Whether the Plaintiff proves that he has always ready and willing to perform his part of contract but the Defendants are not ready and willing to perform their part of contract?

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5 - NC: 2024:KHC:20615 WP No. 10311 of 2024

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3. Whether the Defendant No.1 proves that the plaintiff in collusion with Defendant No.2 and 3 has created agreement of sale and filed the false suit?

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4. Whether the Plaintiff is entitled for the relief of specific performance of contract as sought for?

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5. To What Order or Decree?"

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In the course of the proceedings of the suit, defendant No.1 based on an averment made in the plaint by the plaintiff, filed an application under Order XIV Rule 5(1) read with Section 151 of CPC for framing the following additional issue:-

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"Whether the plaintiff prove that defendant No.1 acquired the suit schedule property under registered gift deed as per MR No.20/91-92?"

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The plaintiff made an application under Order VI Rule 17 of CPC with the following prayer:-

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"For the reasons stated and sworn to in the accompanying affidavit the applicant/plaintiff pray that this Honourable Court may kindly be pleased to pass orders permitting him to amend the plaint by incorporating the appended portion in it and pass

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NC: 2024:KHC:20615 WP No. 10311 of 2024

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such other orders in the interest of justice and equity."

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The trial Court has rejected the application filed by the petitioner / defendant No.1 and has allowed the application filed by the respondent No.1 / plaintiff by way of the impugned order. Aggrieved by the same, the present writ petition is filed.

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The case of the petitioner is that there is a specific averment in the plaint as to how defendant No.1 became the owner of the suit schedule property and hence, it is required for the trial Court to frame a issue regarding the same as pleaded by the defendant No.1 / petitioner herein. But the trial Court unfortunately has rejected his application. He further submits that allowing the amendment as sought for by the plaintiff is also erroneous because the case is now posted for arguments and at a belated stage, the amendment is made.

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The suit is filed by the plaintiff for specific performance of an agreement alleged to have been

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7 - NC: 2024:KHC:20615 WP No. 10311 of 2024

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entered into between the plaintiff and defendant No.1, wherein defendant No.1 has agreed to sell the plaint schedule property in favour of the plaintiff. In the course of the proceedings, the plaintiff might have made a statement in the plaint as to how defendant No.1 became the owner of the property. It is not denied by defendant No.1 / petitioner herein that she is not the owner of the property. It is immaterial to decide the dispute on hand, to answer the question as to how the petitioner herein has become the owner of the property. The issue to be answered in the original suit is whether the plaintiff and defendant No.1 therein entered an agreement of sale as alleged by the plaintiff and whether the plaintiff is entitled for specific performance of the contract. In this regard, the additional issue suggested by the petitioner herein need not be framed. For that reason, I do not see any error in the order passed by the trial Court, though there are certain grammatical and clerical mistakes in the impugned order passed on I.A.No.8 wherein the term 'plaintiff' is used instead of 'defendant No.1'.

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NC: 2024:KHC:20615 WP No. 10311 of 2024

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Insofar as it relates to amendment sought for by the plaintiff, the plaintiff instead of the word 'Registered gift deed' has sought it to be replaced by the word 'gift'. The said amendment has to be considered only as correcting a clerical mistake in the plaint averments and does not have the character of changing the nature of the suit and it does not warrant a re-trial to be done by the trial Court by

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framing any additional issues and it does not cause any prejudice to any of the parties concerned. Under the said circumstances, I do not see any error in the order passed by the trial Court in allowing the amendment application.

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For the aforementioned reasons, I do not see any merit in the case and the writ petition is accordingly,

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dismissed .

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Sd/JUDGE

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VMB

Smt Gopamma v. v Lokesh

Case brief

What is this about?

What did the court decide?

Smt Gopamma v. v Lokesh

Case brief

What is this about?

What did the court decide?

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