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Mr Girish Arora vs Smt R Lakshmamma on 19 November, 2010

Karnataka High Court
Mr Girish Arora vs Smt R Lakshmamma on 19 November, 2010
Author: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19*" DAY OF NOVEMBER, 2o1o?I_%'a._V

BEFORE

THE HON'BLE MR. JUSTICE A.I\£. vENoGoRAI§A:Vrs'OJvvOA1;"  

WRIT PETITION NO.34496/i2o1o'I'(<3 r'%2I.~,C'R'Q\§ .   A I. ' 7

BETWEEN:

Mr. Girésh Arora,
Son of fate Nandlai Arora,_
Aged about 50 years, No~..._3f,'* _  V.
'Sangeetha Towers', 80 feet.a_road.,"  _
Near CMH Hospital, Indira.n.ag'ar,'._  
Bangalore -- 560 0.38-._  y  . 

H   _ _   ' _    PETITIONER
(By M/s. M.L7;.'Ra.cIhL:vI~;1a_th'&--«.Assgci_a'tes). '

ANO:  """ 
1. smt.'R.Lakshjmétnmay}.7  A

Wife of late A.R.arna£ah«,--__gg"' "
Aged about 52' years. 

 v  Sfri3'<.R:,£§Iag__arajLj';  ..... .. «

' «Son o'fjiate«.A.Ramaiah,
'  Ag eAd"vabIoAutV 5-2 years.

3..'  Kumar,
Son of" late A.Ramaiah,
Aged about 50 years.

A '~:%i.i Sr'i~«.R.Suresh,

'~_'Sor'a of late A.Ramaiah,
 Aged about 46 years.



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Nos. 1. to 4 alt are residing at
Kariammana Agrahara,
Bangalore South Taiuk,
Bangalore.

5. Smt. Kanthamma,

Wife of Sri Seetharamaiah,
Aged about 56 years,
Residing at Indalavadi Pura,
Anekai Taluk,

Bangalore.

6. Smt. Chandramma,

Wife of Sri A.Marappa,
Aged about 54 years,  
Residing at No.8, 2"" Cross, 
2"" Main road, Hosahally, 
Vijayanagar,   _  
Bangalore -- 560 040.   *   

  -      'RESPONDENTS

(By Sri  C

This wr_it'petitE'o..n 'i»s,_fii.ed._.under Articles 226 and 227 of
the Constitution of In,'dia',"«-._p'raying to quash the impugned
order dated'=.,20.10..20~10',...~'vide Annexure - A passed in
O.S.No'.15022/20,01, onthe file of the Addl. City Civil Judge,

 '~  Mayo Ha'|lv,....Banga|ore.

I   coming on for preliminary hearing in '8'

g'rou5'p th"i's."'c*..ay,.C'Vtv!=.'e Court made the following:

ORDER

.. Petitioner has instituted the suit on 03.01.2001 for

._trzeV’reECief of specific performance in respect of the plaint

if schedule property pursuant to an agreement of sale dated

‘it

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17.02.2000 and the demand made vide notice dated

17.07.2000. The defendants have filed written statement

and have contested the relief prayed in the suit. Petit’i’aner

filed an interlocutory application on 05.10.2010 H

6 Rule 17 CPC to permit him to incorporate tlii’-2:

pleading in the plaint, to which th.=3″defend’~ants

statement of objections on COl’b’lV.’j:’glA§Ad”E’:vl’i’E”1§iV}’:.ifl”i£2’V’

rival contentions and the recorc1..,.:’¢:’filnding the=a’pplV5’caVtlVon to
be devoid of merit, the “t~:i_al court ‘V..hj4as”p_asse«dV’sn..i’0{der of
rejection dated 20.10.20120.-i.’Fe’e’lvi*’ng the plaintiff

has filed this wrlit”p.etl.tior§:’_. 1.

2. Learnledf~c:ou,niS’el”appearing for the petitioner

contended uxthat, thei’.res.p’ondents have challenged the

proceedi«n.g.s,«iwhich fact was not brought to the

V’*.notice».of~._t:he:ftria~l. court and the same being a subsequent

eventfthei petiti’oner was obliged to bring the same to the

Tnotice”o…f ithsevcourt in order to have a proper adjudication of

proceedings. Learned counsel contends that, without

“»___'”tproper consideration, the learned \l:al judge has

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mechanically upheld the objections raised by the

defendants. According to the learned counsei~,g:.””–.gthe

impugned order being against the settled principl.es~

governing the principles with regard to

pleadings, interference in the matter is :’caiied~__fo’r.– * V V

3. Sri A.G.Shivanna,”llearned counsell’la_pp.ea-~ri.ng for = L’

the respondents, on the other ha.nVo”gvco’n.tend’e”d-thatf the trial
of the suit has commenced_,-ti1_at~.’t,h’e’re:_ due diligence
on the part of plaintiff’iri1:jf:lli,i”9:’.i’tije”-appillication after the
closure of ‘~.Sl4.l’-it. otherwise, the
Diaintiff evidence and the
proposed_’arrierid:rne’n.tVi’s.’,’V_ne.t’:”teguired for adjudication of the

rights of the”-parties-v._to’..th’e.’-‘suit property and hence, the trial

“V..,coui:tj’3″is,»_§,lust_ifiedAA”i’rivi–.p.assing the impugned order. Learned

ll’-i.co’unsel”vrnad’e:’s-Libmissions in support of the findings and

‘.p_er:LJ\s’ed the writ petition record.

colnclulsion’ofj__the trial court in passing the impugned order.
4~._”:. Keeping in view the rival contentions, I have

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5. The point for consideration is:

Whether the trial court is justified in

rejecting the LA for amendment of the_..__

plain t?

6. The triai judge, based on the ciainiiofv.pVi’aiihtitf’i ”

and defendants, having found merit”‘in’th–‘e sVtaite’men.ti’.~oft it

objections fiied by the defendantsl’:’.arid_l

appiication by making the foilowing..pobseiveat§ohs::

“These questions being V.t11*e–..”p_facuts_ whiclmare to be
established by way’: ofAevid?e1iee’*.Vi3}f”it.if1e plaintiff who
already led in sufficient ievidVe1:ice*'”onV ioehalf to prove

those fact.s;~.,,_t’l\he §prQ_po.seci,xartiendriient is not at all

rerijtiiredri rights of the parties
coriclusiv elv ” it “‘su_it. Without the proposed
amendrhent that are raised in the suit
can he eiieeti’vely adj tidicated on the available pleadings
..’:p_jand._rAV:evidencle,’~—-the’refore the application filed by the
_plainti1’f{seeking the amendment is devoid of merits,

rejected”.

Indispiitedly, trial of the suit is complete and

it suaitpt isat the state of hearing of arguments. The proviso

..,l.’.ai5pended to Rule 17 of Order 6 CPC pursuant to the

‘fllalmending Act 22 of 2002, iimits the pfiier of amendment to

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a certain extent. The proviso lays down that, no application
for amendment shall be allowed after the commencement of

trial, unless the court comes to the conclusion that inspite of

due diligence the party could not have raised

before the commencement of trial. Whetherg’a’..:pairtv”_ it

acted with due diligence or not

and circumstances of each case.

8. In the affidavit in visa,-mrti gfarithei

application, the plaintiffhas stated”that,”tldefen’da’nt”‘VNo.1 has

filed W.P.No.30983/200.4% -i.”Vchfai’l’eng_.ln:g acquisition

proceedirig’s~ s:éel<in'g'.V,'de–no'tifi~c'ation and the same is
pending to the plaintiff, the

defendantsflfla'-re iappr_obati'n.g' and reprobating their actions.

hafsdébeegn stated'th_at«,' the subsequent event, which is of

.Vp'aramo,u"n,t"importance, which could not be pleaded earlier

as"he'*was' n':2_tV..aadvised to do so by his previous advocate

Vt=~..___Ta_'nd it is deemed necessary and expedient to

~if_nrforpo,rate the proposed pleading, which goes to the root of

____"".his';claim in the plaint. §\

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9. Indisputedly, the said writ petition has been
filed in the year 2004. The petitioner has filed an

appéication seeking impleading in the said writ petitiotnhand

having been impleaded, is a party therein.

not appear to be dependent upon the outcom_e'”o,f _ V’

writ petition. If the suit property

challenge is negatived, the defendantsca.nnot,b.e.compe.|led’=,

to perform the Contract enlterjed intofi_V_e’ar!-ier°v_ to the
acquisition. The petitioner ha’vi’n_gc~:b_eco’rne aparty to the
said writ petition is bound by_th’e’fo:rde«r:Vthat»__may be passed

therein. The p~eti’t.i_o’nerighavi-n’g ~.t.Q.:V.fi<now of the said

writ petition 'a.n"'-application seeking impleading

therein andwas i'na.pV3eade'd«–._:"IInmediate steps have not been

taken in the suit.,'A1fter' considerable amount of delay i.e.,

af'ter"theE"'cios'ure of trial of the suit, the present application

was=!'_fi|,ed..f–._:'flies'same indicates that, there is lack of

_ bonai*i.des__~'ir".-the matter of filing the IA and even otherwise,

trial. "court has observed that, the facts which are to be

..esAtabiished by way of evidence by the plaintiff, the plaintiff

if ':'_4"vha–s: placed evidence and the proposed amendment is not at

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all required for adjudication of the rights of the parties
conclusively in the suit. It has further opined that, without

the proposed amendment, the questions that are raised in

the suit can be effectiveiy adjudicated on the…._avVaila’i;»|:eiV.

pleadings. If, that be so, the trial courtis”-j:usti_i’i.eld’%

passing the impugned order, rejectirv1Jg’AA’th’e’LAT -S is

10. The suit is one for; specificlperform–‘an.c’e”ofjtlhiellfl

contract in terms of the agreemventidated”3.7.”G2-;2Cl{)0iV The
suit has been instituted ‘ono3′;’o’i’v,2oo:i;’-irriai of the suit is
complete. In view of the by the trial

court noticed-rstijpraéV’:tfl:1’at,”‘-i.t”is un’n’e’ce:ssary for the plaintiff to
seek incor_por_atio_n amendment in the plaint, I

do not’findxla.ny” interference in the impugned

~”‘~orderi._”:’~:. ,_Ti1ere i’s«….,oeither procedural impropriety nor

‘Vir’ra~tio*nal”ivty’lonithe part of the trial court in passing the

‘t_he_sa’me shall stand dismissed. E

impugned ordjeri’

Forvlthe foregoing reasons, the writ petition fails and

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However, it is made clear that the observations and
findings recorded herein, being limited for consideration of
the challenge put to the impugned order rejecting the IA for
amendment of the plaint, the trial court is directed to decide
the suit on its merit uninfluenced by the observationslfiade

herein.

Contentions of both parties Wi1lh_ regard’ or

otherwise of the suit is kept open ‘for

trial court.

Ks;i/- _– .

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