V Bavnga,i_ore}S'outh. IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 26?" DAY OF AUGUST, 2010 BEFORE THE HON'BLE MR. JUSTICE A.N. vENuGOPALA.G'O*it.i.i3--Af. _ WRIT PETITION i\iO.22858_/M2>01O BETWEEN: Smt. Rajamma, W/o. Sunda'rarajan,=._ ' V Aged about 64 years, No.iO3, 21"' Cross, Yuvachethana Colony,' Venkatapura, Bangalore - 560 034. --_ v_ PETITIONER (By Sri D.R.S.u«ndaresili_a & Sri S.NOj_VaV Bethania,Advs.) AND:.~ TTTT E _ , Naray'a'mjppa,, A i"!""" Mr. N..Manju',_ M'aj'or,'*--..' S/o. Nia«rayanapp'a, Both are residing at 3"' Cross, "Raimaiah Re't'idy...Layout, Near Vii'§«a_ge Panchayat Road, " ~B_e'lvanid_'u~r, Post, Befandur, A, E. c RESPONDENTS
(By. Sri__’H.-S’;Chandraiah, Adv.)
” Ttiis writ petition is filed under Articles 226 and 227
“of=i:_he Constitution of India praying to quash the impugned
” ordfir dated 7.6.2010 on I.A.4 Annexure -~ A in
20.8.4288/2007 on the file of XXIV Addl. City Civil Judge,
, __Banga|ore.
This petition coming on for orders this day, the Court
made the foilowing:
QRDER
Plaintiff is the petitioner. Defendants—.’_atr.e:”‘.j’t.h’e.
respondents. The suit is for relief of dec.|arat.iVonl.::’of title.
and permanent injunction. The pia:i4ntiff’s
property is based on alleged agreement
26.10.1987, general power ofiattorney”dated’: 26.10.1987,
executed by 15′ defe’n:d’¢;.nt’s.i’VAVfat,h”e!tV_rintfavourliiof plaintiff’s
father and anAggalieged_co.nfi’rmfati–o’n.'”o.f.saie agreement
dated 22.o82,i27o:;.V 2:”? %iefen;dafnt’ivhae* filed the written
statement’on:rV?.1v9.”6’9′;2,608′ and’._’ha’s’V contested the suit claim.
All the–ayerment’sAj_ijniad_é”~ih.~~ the iliaint have been denied,
including the’ teX~eci3_tio’nV of the said documents and
of alielged”‘consideration amount. Plaintiff filed
1.gié,’:\ac§’.v4iVfen*i..r1s,,,o6.2o1o under Order 6 rule 17 of C.P.C,
seeking. .permission of the court to amend the plaint. The
application was opposed by filing the statement of
objections. The trial court has rejected I.A No.4 by noticing
N that, the suit which is for the relief of declaration and
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injunction, is now being sought to be converted into a suit
for specific performance without showing that the plaintiff
was ready and willing to perform her part of the contract
and had given notice calling upon the defendant
the sale deed and it has not been made clea’-fast.:t’o::wh,e”n
the cause of action arose to seek»-the lxspecifiic if
performance. According to it,
allowed, would alter the cause::of_%action.,_ cha1ri.gé’~._fh’errnature”’ ‘
of suit and snatch the,valua}3ieir_igiii:-._of iirmtation accrued
to the defendant.
learned advocate
appearing for th:e’.’petiti..o’i’ie:’r.—contended that, the impugned
orderis plé’rve’rse’,–.an’cl ii’legal. He further contended that,
ifythe A.ame’n’d’rn’ent is barred by time, is not a ground
and that, there is wrong exercise of
j’ur_i’sdiction,–.V_which has resulted in miscarriage of justice
and hence interference is called for.
3. Sri H.S.Chandraiah, learned advocate
_.appearing for the respondents, on the ot er hand, by
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taking me through the record of the writ petition made
submissions in support of the findings and conciu_s_i_on of
the trial court in the impugned order and submitted”-«tg}*a–a’t,
there being no irrationality or iiiegality comn*}–itteAd”v:’i’nié
matter of consideration of I.A i.\io».4.4andwpva”ss’ing”‘ofgtiweuu’
impugned order, no interference ilsycadied for.
4. Indisputedly, ‘issues “weretgf_:fréarn’e’d’V’ on
19.09.2008. The issues_stru.ci<'
1') Whether piaintrrr-s.,«5r¢v¢s7she is in
possessionof' suit .sc[iedLi!e«site ?
I7) proves the
V ~ . the defendant?
diff) = ‘ proves that she is
it enhtitledthg’ relief of permanent
at ” j’urzc7tiori ? A s
Whats-ra’er or decree?
it s. »v4″I:.:A_:.,No.4 was filed subsequent to framing of the
issides.v. .Th–§:r’i::piaintiff has based his ciaim to suit property
on theyhasis of an alleged agreement of sale and a general
vpoyii.er of attorney dated 26.10.1987 said to have been
executed by the 15″ defendant’s father in favour of
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piaintiff’s father, who is said to have died on 20.03.1999.
By filing I.A No.4, the plaintiff sought additional prayers as
follows: ht
“PRAYER VI: Pass a judgment and
directing the defendants to convey the “schedule
property by executing a sale _.dee.c_1′ in .fayo’ur.fof tl1eA.p
plaintiff in pursuance dorgurrientf ‘dated_ if
26.10.1987 and marked as d’ocument_A.;n,ne:{‘ure.
No.1 to meets the ends efjizstieey. V if
PRAYER VII: In _.the of-othe if defendants
failure to execute «lithe: psalev this Hon’b1e
Court may executethe deed Vinjpvfavour of the
plaintiffs ‘through its .Offieersj_’-top the ends of
other order/ orders in the
int”e’r_est_of justice . and equity”.
‘reason assigned in the affidavit in support
‘of–pra.yerf-.fo’r–._amendment ls, “omission by oversight.”
“Havingv ‘g’o.jne’.1’tnrough the amendment application carefully,
I do not’ find any explanation whatsoever offered in
A Afjufstiyfication of prayer for allowing of amendment.
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7. In the case of DONDAPATI NARAYANA _R__EDDY
VS. DUGGIREDDY VENKATANARAYANA REDDY, rejp’orfted’.,Ain
2001 (8) SCC 115, it has been held that
“The amendment should, generally, uhleisstf
it is shown that perrnittingV’»the:_.’aIh’efi’c1:r1efit she
unjust and result inggrejudice’hagainst’-M. the “op7posite’g
side which cannot be c’or:i”p.ensateri by ¢os:«si¢’r would
deprive him of a_ right which has accrued him with
the lapse of time-.–.._
H suppiied)
8. suit is filed Eong
after the..1(jfq’AVt?§3ireement of sate dated
2_()’…’M{/tevars and the ciaim now
soughtis the one for spe’cifi”<: performance, is cieariy barred
by ..EimiAtati'on..V"Under' circumstances, the time barred
.cia*irn for specific oerformance under the peculiar facts and
ci_rrcumTsta"nce.sV.1~~of the case, cannot be aiiowed to be
introd_uce.d.i;~' The decision of the triai court in rejecting LA
.AI\io.4z,-tiiough for different reasons is justified.
9. It is not a case wherein there is an irrationai
‘”approach to the matter by the triai court and a case of
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appiying wrong principies of law, white passing the
impugned order. I do not find any illegaiityfi…a_s.:_:’st:ch
committed by the trial court in the matter
of prayer for amendment and ingAA’Vpassirtg”‘thie_wV:in”ipugried’*~
order.
In the resuit, the writiipetigtioniivs idevoiidiiofmerit ancit’
shail stand dismissed,gHoweyver’,’v.i_t”isg’mad’e.oEea_r§ that, the
trial court shatl decide-Rth-ei_n View the case
put forth by the which may be
brought of the observations
“a.’i~a(:_:V1iim’E’te’ci’;for consideration of the
grounds passed on LA No.4 and shail
not be construed ‘as’~ex’priession of opinion on the merits of
theicaisge of eith’érvof–At’he parties.
_ «accordingly.
, . V _ Sd/Hg
Etégfi