Allowed

Smt. K. C. Rathnamma v. Smt. Kempamma

Karnataka HC12 Dec 2024WP/2020/2023

Case brief

AI extract

What is this about?

Plaintiff in a specific performance suit sought at arguments stage to amend plaint and abandon suit item No.1, having already obtained a sale deed for it. The High Court held a plaintiff is master of the suit and may abandon part of the claim at any stage; it set aside the Trial Court's rejection and allowed the amendment with costs.

What did the court decide?

Impugned order dated 20.01.2023 set aside; amendment allowed on payment of Rs.10,000 costs to defendants Nos.2 to 5.

Smt. K. C. Rathnamma Vs Smt. Kempamma — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:51419 WP No. 2020 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 2020 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. K.C. RATHNAMMA W/O. N. SUBBARAYAPPA, AGED ABOUT 57 YEARS, R/AT KOTHANOOR VILLAGE, NANDI HOBLI-562 103, CHIKKABALLAPURA TALUK AND DISTRICT. REPRESENTED BY HER POWER OF ATTORNEY HOLDER, SRI. N. SUBBARAYAPPA, S/O. LATE NANJAPPA, AGED ABOUT 64 YEARS.

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…PETITIONER

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(BY SMT. SARITHA A.L., ADVOCATE FOR SRI. SRINIVASA S.B., ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. KEMPAMMA W/O. LATE BACHAPPA, AGED ABOUT 84 YEARS, SINCE DECEASED AND LEGAL HEIRS IS RESPONDENT NOS.2 TO 5 ONLY AMENDED AS PER COURT ORDER DATED 12.12.2024

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SMT. SHARADAMMA W/O. LATE MUNIRAJU, AGED ABOUT 57 YEARS,

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SRI. K.M. SURESH S/O. LATE MUNIRAJU, AGED ABOUT 38 YEARS,

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2 - NC: 2024:KHC:51419 WP No. 2020 of 2023

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SRI. K.M. MOHAN S/O. LATE MUNIRAJU, AGED ABOUT 34 YEARS,

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SMT. K.M. PUSHPA D/O. LATE MUNIRAJU, AGED ABOUT 32 YEARS,

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SMT. JYOTHI W/O. LATE VENKATESH, AGED ABOUT 44 YEARS,

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RESPONDENT Nos.1 TO 6 ARE R/AT KOTHANOOR VILLAGE, NANDI HOBLI-562 103, CHIKKABALLAPURA TALUK AND DISTRICT.

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SRI. MUNIVENKATASWAMY S/O. LAKSHMAIAH, AGED ABOUT 46 YEARS, R/AT BOMMANAHALLI VILLAGE, NANDI HOBLI-562 103, CHICKBALLAPUR TALUK AND DISTRICT.

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…RESPONDENTS

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(BY SRI. MURALIDHARA P., ADVOCATE FOR RESPONDENT NOS.2 TO 5; VIDE ORDER DATED 14.08.2023, SERVICE OF NOTICE TO RESPONDENT NO.7 IS HELD SUFFICIENT;

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NOTICE SERVED ON RESPONDENT NO.6)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 20.01.2023 ON I.A. NOS.24 TO 26 IN O.S.NO. 83/2015 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND CJM, AT CHICKBALLAPUR A COPY OF WHICH IS PRODUCED AT ANNEXURE-J AND ALLOW THE SAID I.As. AS PRAYED FOR TO MEET THE ENDS OF JUSTICE.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The plaintiff in O.S.No.83/2015 on the file of the Principal

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Senior Civil Judge and CJM, Chikkaballapura (henceforth

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NC: 2024:KHC:51419 WP No. 2020 of 2023

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referred to as 'Trial Court' for short) is before this Court challenging an order dated 20.01.2023 by which, the applications (I.A.Nos.24 to 26) filed by her under Section 151 of Civil Procedure Code and Order VI Rule 17 of Civil Procedure code respectively were rejected.

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(i) The suit in O.S.No.83/2015 was filed for specific performance of an agreement of sale dated 06.03.2014. The suit properties were bearing Sy.No.3/3, measuring 01 acre 13 guntas and Sy.No.55/3 measuring 09 guntas situated at Kothanoor Village, Nandi Hobli, Chickballapur Taluk.

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(ii) The defendant Nos.2 to 5 contested the suit and filed a written statement denying the execution of the agreement of sale in favour of the plaintiff. They also contended that the defendant Nos.1 and 6 had executed a sale deed in favour of the plaintiff pertaining to item No.1 of the suit property. Elaborating further, they contended that the defendant Nos.1 and 6 colluding with the plaintiff and in order to deprive the ½ share of the defendant Nos.2 to 5 in the suit properties, had created a fraudulent sale deed dated

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NC: 2024:KHC:51419 WP No. 2020 of 2023

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25.02.2015 in favour of the plaintiff in respect of suit item No.1.

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(iii) The defendant No.7 also filed a written statement contending that the defendant Nos.2 to 5 being the legal representatives of G.Muniraju, had executed a sale deed dated 04.09.2014 in respect of the land bearing Sy.No.55/3.

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(iv) Based on these contentions, the suit was set down for trial. When the suit was listed for arguments, the plaintiff filed an application under Order VI Rule 17 of Civil Procedure Code contending that the defendant Nos.1 and 6 had executed

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a sale deed in her favour in respect of suit item No.1 and therefore, desired to restrict the suit to suit item No.2. The said application was opposed by the defendant Nos.2 to 5 who contended that they had already mentioned in their written statement about the sale deed executed by the defendant Nos.1 and 6 in favour of plaintiff in respect of suit item No.1 and plaintiff did not take any steps from the date of filing the written statement till the suit was set down for arguments to abandon the claim in so far as the suit item No.1 is concerned.

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The Trial Court after considering the contentions, rejected the application in terms of the impugned order.

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Being aggrieved by the said order, the plaintiff is before this Court.

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Learned counsel for the plaintiff contended that the defendant Nos.1 and 6 had executed a sale deed in respect of suit item No.1 and therefore, the plaintiff was no longer interested to pursue the suit in so far as suit item No.1 was concerned, but wanted to proceed against item No.2. He contends that the plaintiff is the dominus litus and he can decide what should be the relief sought for in the suit. He contends that the plaintiff can abandon the suit or a portion of the suit claim at any stage of the suit. Therefore, he contends that the Trial Court committed an error in not allowing the plaintiff to give up the claim in respect of suit item No.1 is concerned.

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Learned counsel for the defendant Nos.2 to 5 contends that the application was highly belated and was filed at a stage, when the suit was set down for arguments. He contends that defendant Nos.2 to 5 had categorically mentioned in their written statement that the plaintiff had

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6 - NC: 2024:KHC:51419 WP No. 2020 of 2023

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obtained an unconscionable and fraudulent sale deed from the defendant Nos.1 and 6 and therefore, it was incumbent upon the plaintiff to have abandoned the claim in so far as item no.1 is concerned. Thus, he contends that the amendment sought for is neither bonafide nor genuine and hence, the Trial Court was right in disallowing the application filed by the plaintiff.

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A reading of the plaint shows that the plaintiff had sought for specific performance of an agreement of sale dated 06.03.2014 concerning suit item Nos.1 and 2. The suit was filed on 02.03.2015, by which time, the plaintiff had already obtained a sale deed in respect of suit item No.1 from defendant Nos.1 and 6 in terms of a sale deed dated 25.02.2015. Therefore, the plaintiff ought to have restricted the suit reliefs in respect of item No.2. Ideally, the plaintiff must have abandoned the claim in so far as item No.1 is concerned, soon after obtaining the sale deed or at least after the defendant Nos.2 to 5 filed their written statement mentioning about the sale deed executed in favour of the plaintiff on 25.02.2015. Since the plaintiff has kept quiet and waited for the suit to meander to the stage of arguments, the application filed is definitely not bonafide.

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NC: 2024:KHC:51419 WP No. 2020 of 2023

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Be that as it may, since the plaintiff is the master of the suit, he is entitled to abandon either the whole claim or part of the claim, at any stage of the suit. Since the plaintiff has now restricted the suit in respect of suit item No.2, the Court could not have disallowed the amendment sought for by the plaintiff.

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In that view of the matter, this writ petition is allowed and the impugned order dated 20.01.2023 passed by the Trial Court is set aside. The amendment sought for by the plaintiff is allowed, but is subject to cost of Rs.10,000/- payable to the defendant Nos.2 to 5. It is made clear that by virtue of the abandonment of the suit against suit item No.1, the plaintiff shall not be entitled to any claim against the defendant Nos.2 to 5 in respect of suit item No.1 under the agreement of sale dated 06.03.2014.

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Sd/(R. NATARAJ) JUDGE

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List No.: 1 Sl No.: 47

Smt. K. C. Rathnamma v. Smt. Kempamma

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Smt. K. C. Rathnamma v. Smt. Kempamma

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