Disposed

Smt Eramma @ Radha v. Sri T Srinivasa

Karnataka HC25 Jun 2024WP/35715/2018

Case brief

AI extract

What is this about?

Defendant challenged an order allowing the plaintiff's belated amendment seeking declaration that a gift deed is not binding in a specific performance suit. The High Court upheld the amendment subject to costs but directed the trial court to permit an additional written statement and recast the limitation issue with the burden on the plaintiff.

What did the court decide?

Petition disposed: defendant permitted to file additional written statement within two weeks; trial court directed to recast the limitation issue placing the burden on the plaintiff; amendment upheld

Smt Eramma @ Radha Vs Sri T Srinivasa — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:23383 WP No. 35715 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 35715 OF 2018 (GM-CPC)

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BETWEEN:

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SMT.ERAMMA @ RADHA AGED ABOUT 39 YEARS, D/O LATE BALAIAH W/O. SRI SHAKTHIPRASAD M., R/AT NO.3142, NEAR UDBHAV SCHOOL, PATTEGARA PALYA, 1^ST MAIN ROAD, PANCHAVVTINAGAR BENGALURU NORTH TALUK BENGALURU-560 072

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…PETITIONER

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(BY SRI.NARASIMHA MURTHY.K., ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SRI.T.SRINIVASA AGED ABOUT 42 YEARS, S/O THIMMAPPA R/AT NO.377/A, 3^RD CROSS, 3^RD MAIN VIJAYANANDA NAGARA BENGALURU-560 096

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SRI.SHIVAMMA AGED ABOUT 46 YEARS, W/O LATE NARAYANA

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SRI N.DIVAKAR AGED ABOUT 25 YEARS, S/O LATE NARAYANA

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KUMARI N.ASHA AGED ABOUT 23 YEARS, D/O LATE NARAYANA

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NC: 2024:KHC:23383 WP No. 35715 of 2018

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SL.NO.2 TO 4 ARE R/AT NO.72/12, 10^TH MAIN GANESHA BLOCK, NANDINI LAYOUT BENGALURU-560 096

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…RESPONDENTS

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(BY SRI. K.G.SADASHIVAIAH, ADVOCATE FOR R1 V/O/D 27/9/2018 R2-R4 NOTICE IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS, O.S.NO.1045/2014 PENDING BEFORE BENGALURU XXXIV ADDITIONAL CITY CIVIL JUDGE AT BENGALURU AND QUASH THE ORDER DATED: 08.06.2018 PASSED ON I.A.NO.II FILED UNDER ORDER VI RULE 17 R/W SECTION 151 OF C.P.C. IN O.S.NO.1045/2014 PENDING BEFORE BENGALURU, XXXIV ADDITIONAL CITY CIVIL AND SEESIONS JUDGE AT BENGALURU (CCH-39) APPLICATION IS PRODUCED AS ANNEXURE-G.

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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 writ petition is filed aggrieved by the order passed on I.A.No.II in O.S.No.1045/2014 dated 08.06.2018 by the XXXIV Additional City Civil & Sessions Judge, Bengaluru, the defendant No.4 in the suit is before this court.

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The respondent No.1 herein had filed a suit for specific performance of an agreement of sale dated 11.10.2013. The suit is filed on 05.02.2014. Now the present I.A. came to be filed seeking amendment of the plaint seeking a declaration that gift deed which is executed by defendant Nos.1 to 3 in favour of defendant No.4 is not binding on the plaintiff. The

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3 - NC: 2024:KHC:23383 WP No. 35715 of 2018

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said I.A. filed by the plaintiff stating that the said amendment cannot be permitted as the same is barred by limitation and the amendment is sought at the belated stage after the commencement of the trial. The court below had allowed the said application and held that there is a delay and for the said delay the court had imposed cost of Rs.2,000/-. When it comes to the limitation, the court had framed an additional issue as follows:

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“Whether the defendant proves that the amendment sought by the plaintiff in respect of para No.5(a) to 5 (c) and “prayer (e)” under application filed under Order VI Rule 17 r/w Section 151 of CPC dated 17.07.2017 are within the period of Limitation?”.

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Aggrieved there by the defendant No.4 is before this court.

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Learned counsel appearing for the defendant submits in the plaint itself it is clearly stated about the execution of a gift deed in favour of defendant No.4 who is the petitioner herein by defendant Nos.1 to 3. He has applied for Encumbrance Certificate and even before filing of the suit he came to know about the registered gift deed. He has not questioned the said gift deed and only filed the suit for specific performance. Now, by virtue of this relief of declaration that

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NC: 2024:KHC:23383 WP No. 35715 of 2018

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the said gift deed is not binding and seeking the relief of cancellation, by virtue of which entire nature of the suit changes. He submits that the relief sought is barred by the limitation, secondly at the belated stage the application under Order VI Rule 17 r/w Section 151 of CPC cannot be allowed and third, it is stated that when a amendment of plaint is allowed, the defendant shall be permitted to file her additional written statement. Then coming to the issue that is framed, now when she seeks relief of a declaration by way of an amendment, the burden lies on the plaintiff to prove that the relief that is sought is within the limitation. But unfortunately the court below had fastened the burden on the defendant to prove that. He submits that on these facts, the order impugned before this court is liable to be set aside.

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Learned counsel appearing for the respondent/plaintiff submits that unless the cancellation of the gift deed is sought and the declaration that it is not binding, it causes lot of hardship to the petitioner. He submits that it would unnecessarily lead to multiplicity of proceedings and the court had taken note of the delay and imposed cost of Rs.2,000/-.

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5 - NC: 2024:KHC:23383 WP No. 35715 of 2018

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Further he submits that the additional issue framed whether it is within the limitation or not will also answer the concern of the defendant. He further submits that the court below had rightly allowed the petition in the interest of both the parties and the cost is also imposed.

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Having heard the learned counsels on either side, perused the entire material on record. In this case initially a simple suit for specific performance was filed. In the plaint it is averred that the gift deed is executed in respect of said suit schedule property. The plaintiff has kept quite without asking of relief of declaration and to set aside the said document. Now after more than three years from the date of filing of the suit, the present relief is sought. The court below has allowed the amendment. When once the amendment is allowed, the defendant has to have an opportunity to file the written statement. This court has also perused the issue framed by the court whereby fastening the burden on the defendant to prove that the amendment sought by the plaintiff is within the limitation or not. The trial court went wrong in not allowing the defendant to file the written statement and also framing such an issue by placing the burden on the defendant to prove that

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NC: 2024:KHC:23383 WP No. 35715 of 2018

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the same is within limitation. As far as the amendment is concerned, unless and until such an amendment is allowed, again the plaintiff has to necessarily file another suit for cancellation and declaration. Hence in the substantial interest of both the parties, such an amendment allowed by the court below on costs Rs.2,000/- is perfectly legal and valid. Now in view of the above discussion, this writ petition is disposed of directing the court below to permit the petitioner to file additional written statement within a period of two weeks from the date of receipt of the order and also to recast the issue on limitation.

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Accordingly the following order:

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ORDER

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i. The Court below shall permit the petitioner to file additional written statement within a period of two weeks from the date of receipt of the order.

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ii. The trial court is directed to recast the issue with regard to the limitation where the burden is placed on defendant. The burden lies on the plaintiff to prove that such a relief is sought is well within period of limitation.

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NC: 2024:KHC:23383 WP No. 35715 of 2018

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iii. It is open for both the parties once an issue is framed to address what is the reckoning date of limitation and all those issues can be agitated before the court below.

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iv. Accordingly, the writ petition is disposed of .

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Pending I.As., if any, shall stand closed.

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SD/JUDGE

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TS List No.: 1 Sl No.: 23

Smt Eramma @ Radha v. Sri T Srinivasa

Case brief

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Smt Eramma @ Radha v. Sri T Srinivasa

Case brief

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