Smt. M Manjula Vs Sri Seenappa

SRI. SEENAPPA S/O LATE UTHANALAPPA AGED ABOUT 67 YEARS R/A BYRASANDRA SUDAGUNTEPALYA K R PURAM HOBLI BENGALURU EAST TALUK REP BY HIS SON/GPA HOLDER S. PURUSHOTHAM S/O SEENAPPA AGED ABOUT 40 YEARS R/A SUDUGUNTEPALYA NO.12, C V RAMANAGAR BENGALURU - 560 003.

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SRI. KRISHNAPPA S/O LATE MARAPPA AGED ABOUT 72 YEARS

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NC: 2026:KHC:20445 W.P. No.22227/2021

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HC-KAR

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DEFENDANT NO.1 DIED DURING THE PENDENCY OF THE SUIT AND AS SUCH HE IS NOT ARRAYED AS RESPONDENT IN THE PRESENT WRIT PETITION.

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HIS LR'S ARE ALREADY ON RECORD AS RESPONDENT NOS.2 TO 10.

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SMT. RATHNAMMA W/O KRISHNAPPA AGED ABOUT 67 YEARS.

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SMT. RAJAMMA D/O KRISHNAPPA AGED ABOUT 50 YEARS.

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SRI. DEVARAJ S/O KRISHNAPPA AGED ABOUT 48 YEARS.

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SMT. NARAYANAMMA D/O KRISHNAPPA AGED ABOUT 46 YEARS.

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SRI. ERANNA S/O KRISHNAPPA AGED ABOUT 45 YEARS.

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SRI. RAMESH S/O KRISHNAPPA AGED ABOUT 44 YEARS.

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SMT. LAKSHMAMMA D/O KRISHNAPPA AGED ABOUT 42 YEARS.

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SRI. RAMANNA AGED ABOUT 40 YEARS S/O KRISHNAPPA.

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HC-KAR

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SRI. LAKSHMANNA S/O KRISHNAPPA AGED ABOUT 38 YEARS

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RESPONDENT NOS.2 TO 10 ARE R/AT SINGENAHALLI VILLAGE JALA HOBLI BENGALURU NORTH TALUK - 562 157.

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…RESPONDENTS

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(BY SRI. VIJAYAKUMAR PRAKASH, ADV., FOR SRI. S.D.N. PRASAD, ADV., FOR R2 TO R10 SRI. GOPAL, ADV., FOR R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE HON'BLE PRL. SR. CIVIL JUDGE AND JMFC, DEVANAHALLI ON I.A.NO.8 DATED 6.11.2021 IN O.S.NO.19/2011 VIDE ANNEXURE-J CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND CONSEQUENTLY DISMISS THE IA NO.8 FILED BY THE PLAINTIFF & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This writ petition is filed challenging the order dated

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06.11.2021 passed on I.A.No.8 filed in O.S.No.19/2011 on

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the file of Principal Senior Civil Judge and JMFC, Devanahalli (for short, 'the trial Court' ).

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NC: 2026:KHC:20445 W.P. No.22227/2021

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HC-KAR

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Heard Sri.Ravi Prakash V., learned counsel for

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the petitioner, Sri.Vijaya Kumar Prakash, learned counsel for Sri.S.D.N.Prasad, learned counsel for the respondent Nos.2 to 10 and Sri.Gopal, learned counsel for the respondent No.1.

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The petitioner as well as respondent Nos.2 to 10 submits that the respondent No.1-plaintiff has filed a suit against the respondent Nos.2 to 10 and petitioner herein, who is the purchaser of the property, seeking declaration that the respondent No.1-plaintiff is the absolute owner in peaceful possession and enjoyment of the property. The said suit was filed in the year 2011. Thereafter, the petitioner herein as well as respondent Nos.2 to 10 have filed a written statement denying the assertions made in the plaint specifically pleading that they are in possession of the property. It is contented by the defendants that after the plaintiff filed his affidavit inlieu of examination-in-chief and when the matter was posted for cross-examination, after a period of nine years,

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HC-KAR

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the respondent No.1-plaintiff filed an application for amendment of the plaint, which came to be allowed by the trial Court without considering the fact that the plaintiff has failed to show any due diligence for filing of such an application. It is also contented that when the respondent No.1-plaintiff was aware that he was not in possession of the suit schedule property, he ought to have sought the relief of possession otherwise his suit itself is not maintainable. Therefore, these aspects are required to be considered and hence, they seek to interfere in the impugned order.

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I have heard the arguments on both the sides

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and perused the material available on record.

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The respondent No.1-plaintiff has filed a suit for declaration that he is the absolute owner in peaceful possession and enjoyment of the suit schedule property. The plaintiff has made various assertions with regard to the flow of title. The petitioner herein has filed a detailed

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HC-KAR

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written statement denying the assertions made in the plaint contending that he is the purchaser and in possession of the property. The matter was posted for evidence before the trial Court, the plaintiff has filed an affidavit of PW1 in-lieu of examination-in-chief and thereafter the matter was posted for cross examination and at that stage, an application - I.A.No.8 was moved by the plaintiff under Order VI Rule 17 of Code of Civil Procedure seeking amendment of the plaint. The said application indicates that the plaintiff has narrated the events with regard to the flow of title in the proposed amendment to be incorporated after para 9 of the plaint as para Nos.9(a), 9(b) and 9(c). In para 9(c), a specific assertion is made that the defendants and their supporters after filing of the suit in the month of September, 2012, illegally dispossessed the plaintiff from the suit schedule properties. The said assertion is admittedly after filing of the suit. Whether the plaintiff was in actual possession or whether the defendants were in possession on the date of

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HC-KAR

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filing of the suit and whether the defendants dispossessed the plaintiff in the month of September, 2012, is required to be ascertained during the course of trial by the trial Court.

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Insofar as the contention of the defendants is concerned that the suit, initially filed without a relief of possession, itself is not maintainable is also required to be considered by the trial Court during the course of trial. It is always open for the defendants to raise such a contention before the trial Court.

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The trial Court taking note of the fact that the Special Power of Attorney Holder of PW1 has specifically stated in his affidavit that due to the ill health i.e. paralysis suffered by the plaintiff, he has entered the witness box and continued the proceedings, and due to the illiteracy and the medical difficulty faced by the plaintiff, he could not seek the relief and the trial Court accepted the said explanation and allowed the application.

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NC: 2026:KHC:20445 W.P. No.22227/2021

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HC-KAR

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I do not find any error in allowing the said application by the trial Court as said application is allowed by exercising the discretion by the trial Court considering the difficulty faced by the plaintiff.

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It is needless to observe that the defendants

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are at liberty to file an additional written statement raising all the contentions including the contention that the proposed amendment would apply prospectively and also the contention with regard to Section 34 of the Specific Relief Act, 1963.

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With the aforesaid observation, the writ petition is disposed of by upholding the impugned order of the trial Court.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR

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List No.: 1 Sl No.: 25

Smt. M Manjula v. Sri Seenappa

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Smt. M Manjula v. Sri Seenappa

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