2. SI-i'Ha~rish, L-I " IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 20*" DAY or SEPTEMBER, BEFORE '""" THE HON'BLE MR. JUSTICE A.N. vENUGQ.pAI.A:j.(;O~I?vDAA " WRIT PETITION No.6186/éomi(6519:.-'CPC§. BETWEEN: Sri Muniyappa @ Kurigaiappa, Aged about 88 years, ' S/o. Doddabudappa, I 5 _ -. I R/o. Dodda Sabeenahai|'E*véi!age,1. ; Kasaba Hobii, MaiurTaIui<,'- _ I Koiar District. _ . » By G.P.A holde~r'My:.Vi$€'uni'raju.-V A ' __ I ~ _ :PETITIONER (By sn Tajuddiy-fi'_Ady';)» I _A__i\_iD_:V I _ _ 1. Sr': l3.._A;MarkeIIfiI"appa4VA'@VV"Mer.iappa, Aged 2-:..lV_)ou%t 63._yea--rs,"--«.._"" " S/o. latefiyarappa'._@vS~hivaradaappaiah. » ifS/yo...Vi3..A"...yiVi*afkondappa @ Mariappa. ._ Aged _3.b'Gi_Vj'.';" 55 years, W'--,lo.--..'iD.A;' Markondappa @ Mariappa. . AH ei"e;R/o. Dodda Sabeenahaiii village, Kasaba Hobli, Maiur Taluk, A' 'i<s*Iar District. % ..(.By Sri K.SrihaFi, Adv. for R1) ...RESPONDENTS
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This petition is filed under Articles 226 and 227 of
the Constitution of India praying to cali for the records and
proceedings in so far as it relates to the case of the
petitioner; quash the order of Annexure — F passed by the
Court of 2″” Additionai Civil Judge (sr.on.) Koliar’-.lin
O.S.N0.S/O7 on E.A.N0.l5 order dated 11.2.2010:”§ETi.:’«..tfi’S
alternate to set aside Annexure – F
This petition coming on for preliminary” *8″
group this day, the Court made the_f.o.llo_wing. ‘*
QRDER 1
Petitioner — Plaintiff ha;-;.,i:i’i~i.sVtitutetl,’suit’Lpn”i1..2?z.t2i.06 * i’
seeking relief of declaration, p.o.ssess’ioLn a.nd’«in,juAn§ction in
respect of the plaint”sched_uie; against the
respondents / d_e-fendants;’1111i’-defendarit’has filed the
written;V’Vstaten*rent. ‘vi:’§lI4V>Vetitii3.ifier fi!HedVI.A.15 in the suit under
0 6 R ‘se’eVEi:ji’ntj”-~arii«eii’idment of the piaint i.e., to
substitute psiaeeewithlsaias 4(a), (b) and (c), delete and
«substitute last four i’i’ne’s in para 5 of the piaint, incorporate
para item of property as item No.2 in the
sche_duieV.of: piaint. Objections statement was filed by
7-ii._’_”-defendant 1. Upon consideration, the Trial Court has
V’rfej.ee tjeci I.A.15. Aggrieved, the plaintiff has filed this writ
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petition to quash the said order and to aflow the prayer in
I.A.15.
2. Sri Tajuddin, Eearned advocate appearing for
the petitioner contended that, the proposed amendn’:ent,’i*s,’
necessary to decide the real question in ..cont.rover*s,y”‘-, ‘
between the parties and there being’ no caused”,
to the defendants, ought to have
doing so and by rejecting I.AV,l3.._S’,~w..the Triai Colu-rt”ha’s»~acted ” it
irrationally and hence_..the :i,mp’ugn’e,d orci’er_is:§ illegal.
Learned counsel submits”t’h,at,”~1,Vii§.,j_5.”was:f’i»ied immediately
after the materiai__ facts”C:a,m_e-jtoy. when certain
documents custody of the plaintiff and
not withinuthe the plaintiff were discovered,
thev_»»certifi’ed co’p’ies,,__Q_l;t,ained, which necessitated the filing
of”-£,A.3.,_S~.,seieking amendment of the plaint. Learned
¢oWeilsgiimlgs that, without considering I.A.15 in the
g correct. “perspective, on account of the misdirection
‘:jaciopted,V”the Trial Court has rejected the same. Learned
— cicunsei submits that, if prayer in LA No.15 is not allowed,
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the same would cause irreparable loss and prejudice to the
petitioner.
3. Sri K. Srihari, learned advocate appeariyriprfor
the respondent No.1 on the other hand firstiy_,;”‘(:on’tendsVit
that, based on the pleadings in the st.:it_,.._.,i’sjsuves.l.:’were'”T
frarned on 15.10.09; that trial had1:take:n’piace*
stage, only with the intention;o_f causing deiaV~,:~’l-inildiispcgslai
of the suit and to overcome t’he.:..V’directioriV_ this
Court in CRP 471/07 was filed.
Secondly, proviso 5y…,clj¢¢”¥”*’AA(jf.;:y5,’..@ttracted and
furtherithelreisf.no diis.g;ience_llani’the part of the plaintiff.
Thirdly,Vii’-adrnissionsit,i_n”..,fi\.e’..-~pleading is sought to be
overcome deieliion”v_ and that the additional pleading
….,,,,9rop:Osed–,., introdulcesa new case and a new cause of
the admissions elicited during cross-
ex1arni%natio’ni:’1–.V_oi’ piaintiff and his witnesses have been
‘<sought"to":.be overcome by filing I.A.15 and the application
":l.beihl§"'A_highly belated, has rightiy been rejected by the Trial
Coéurt. Lastiy, the proposed amendment is unnecessary to
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decide the real question in controversy between the
parties, in as much as the suit filed being one for
comprehensive reliefs, the trial having taken piaceéfthe
Court is justified in rejecting I.A.3.5.
4. A perusal of the impugned orde.r_,s_:nowiS::’that,'”f
the Triai Court has noticed that,
application by the plaintiff seeking’-._amendm’ent: of
piaint and the plaintiff had the l{‘n.o”wledge’ affine ees even
eariier, which he could have stat_eci’ :.a_t,:th.e timefuof filing of
the suit. It has further fthatitiiie; hoider has
deposedas”–l§§\i_§1\:?§hro:u;i:t: the documents were
markedVV”an’d«. that; has examined PWs 2 to 5,
through whiom_”cer’tain=. adrnissions appear to have been
.–‘r…,glici-ted A.theV”V’d”ei’e’ndants and that the proposed
does not taily with the record of the
su’it,__’a%nd Va,n’VVr:entirely new case is sought to be introduced,
V%fi”‘…,,”».i/which ifjailowed, wouid alter the nature of suit. Finding
“ft_hat,””‘*there are no genuine and reasonabie grounds to
allow the prayer, I.A.1S was rejected. L
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S. In view of the rival contentions and the record,
the point for consideration is:
Whether the impugned order is irrational and .ii’iega_i’? _
6. Indisputediy, on the date ”
issues had been framed and substantia*i~.par.t of-‘then
suit had taken place. Hence, not_’h’a.ve
allowed by the Trial Court,’ had-.,,c’orn’el”‘to the
conclusion that, in spite:-of duei’dili.g_:en’ce, the’p’l~ainrtiff could
not have raised the mattlerl’beforefco_n’iififieLn’cement of trial.
The power und,er.:’Ru_le is discretionary.
It shouiidi'”b’e..iiiuseidi-3,”judic§i’ousiy”‘on4 consideration of the
circumstances of The object of the rule is to
avoid _r_m.rltipiicity.Vyofiiproceedings. Amendment can be
“‘«..allovwe~d;_whi.ch sa’tisi’–i–es’the two conditions namely, (a) Of
vJo”rlk:_i:no*injustice to the other side and (b) Being
nece’sisary.’fo’if the purpose of determining real question in
‘gcontroversy between the parties. Prayer to amend should
A ‘*?.beV’lr’ef_.used, when it has the effect to take away from the
party, a legal right accrued to him. \
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7. The petitioner by filing I.A.1S, not merely
proposed additional pleading and an item of property…__i_3ut
has also prayed for deletion of the averments made’:inf”yth’e.f’
plaint. The proposed pleading, when perused.-.y’:aiongjV’
the plaint, is unnecessary to decid-etthe real V
controversy between the parties.
when kept in view, it is appare.n’t”~.t%hatAthe plainti’fif:V'”h’as “not
shown due diligence to,.«permitl—the_:–Drayer.in ‘Iv..A..1i§. The
record shows that, the .I.A.15 but the
affidavit is sworn’ to ‘who has also
deposed on siltlwalslllfor the plaintiff to
have stated case which was proposed to
be pleaded’-spy selekilnd leiajuelas per I.A.15 was within his
knowiiedgle or note…’ V
order of temporary injunction passed on
in M.A.107/O7 was questioned by the
V -V defendant. filing CRP No.471/O7. This Court while
of the said petition on 30.06.09, has directed
. tl~..:e”‘parties to cooperate in early disposal fithe case and
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not to take unnecessary adjournments. The Trial Court
was directed to dispose of the suit itself at the earliest and
preferably within 3 months from the date of receipt of the
copy of the order. The Registry was directed to send’r’..b’arr;i<
the original records to the Trial Court
period fixed by this Court for disposal
expired. I.A.15 was filed on 17,121.09 _e..é_,f; arrélryt-nére;<.;§:it;.;%.5
of the period stipulated by this_ Cou'rt_"in the"'V's'aiVdv_.order;
The circumstances indicate lacvl€"i«.of .(vViue"'ci–il._iVV:gle'n(:e; on the
part of the petitione'r…._._"j-Lil E§ioy."':t5_'».yyi's«.ynot a bonafide
application. In View ofy..thei~.ypie_adingS,'alriea'dy on record,
the proposedilyl'ad*ditional_:"pleading in I.A No.15 is not
necessaryto deci'de"t.he :question in controversy. The
plaintififf may in'sti.tute separate suit in respect of item No.2
Vpropierty;.th.e"cause of action being separate and distinct.
the trial of the suit is stated to be
_p com"p!ete:Ja'n.d the suit is now at the stage of final
it ':«.artg=u..ranen"ts, the prayer in I.A.15, if were to be allowed, the
r entire: proceedings will have to be redone by conducting
"further trial of the suit on both sides. In the
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circumstances, the Triai Court is justified in rejecting
I.A.£5. I do not find any irrationaiity on the part.
Trial Court in the matter of consideration of
the impugned order cannot be heid as iiiegal……,u_:’jw.u V
In the result, the writ petitioh is:”de§/o’ird._.’of:rrie’r’ViItri-.ari2i_’A
shail stand dismissed, subjectgto observeti.ovri.sV’made
supra, with regard to item No.2_:p’ro_perty in:E.A.15.
Parties to bear theiriresipeetiii/e””ccdsts;». _
sac*