IN THE HIGH COURT OF KARNATAKA AT BAi\£GALO__F?.E
DATED THIS THE 22"" DAY OF SEPTEMBER,
BEFORE
THE HONBLE MR. JUSTICE A.N. VENuGDPAm'¢§jQIfv9~I:A,A
WRIT PETITION NO . 5252,1120;L0',.(iG"IYIgE.PC-)" E ; A T
BETWEEN:
SRI P R NANJUNDASWAMY SETFY =
AGED 85 YEARS, .
S/O SRI PUTTARAMA SETTY. 5
R/A NO.14G6, 22ND CROSS,» '__ , ,
I & III BLOCK EAST, '- J
JAYANAGAR ' , , " 0
BANGALORE 5E0's3.I_é.«.
PETITIONER
(BY SRI G.E.AIAI'§DI_SH "r;oAvY'D.A, 'FDR SR1 R.B.SADASI\/APPA,
. . , . 'I
AND;
1 SR1H.vES.RINIvASAY.g;owDA
, S/O SRLH.vYE'NKATESHAPPA,
AGED 45 YEARS, R/A NO. 551,
'I MAIN, NAGENDRA BOCK,
BSK I-II STAGE,
A.BvAI\,I<3».ALQI'<E 560050.
N?' _
, ' SR: NAGARAJ
S,.i'_'O SR1 KRISHNAPPA
AGED 48 YEARS,
., _ R'/A NO. 289, K.G.HALLE
' '=.,_JALAHAi_LI WEST,
BEHIND RAMA TEMPLE
BANGALORE 560 015.
Ed
3 SRI RAMANJANEYULU
S/O LAKSHMINARAYANAPPA
AGED 45 YEARS,
SOWMYA STORES, K G HALLI
JALAHALLI WEST,
BEHIND RAMA TEMPLE
BANGALORE W 560 015.
4 SMT. S LATHA
AGED 43 YEARS,
R/A 11TH MAIN ROAD, _
JALAHALLI WEST, WARD'N(3~., 3
BEHIND RAMA TEMPLE "
BANGAORE 560 0:5.
R"E'SPvONDENT'Sr '
(BY M/S. SSP LEX ScIENTI'A,E,''AD-vS.:) '" VA d
THIS wRITP.ETITj'ION 'IS _i=ILjED UNDER ARTICLES 226
AND 227 DE THE C;0NSTI--TuTI'ON OE I'I\I'DvIA~PRAYING TO QUASH
THE IMPUGNED..__OF?J3ER«.,DT'D.._7'{1G«,C9_~PASSED BY THE 7TH
ADDITIONAL. cIii'Yi.vCI\2'Ir_ 3UDG,E;v.aAN,GALORE ON I.A.6 IN O.S.
9521/o4._\z1,DE».ANN1E;<DR--E_"~ ._A'. '
THIS PETiTIO_N'vCO'MTfi'€«G to-N FOR PRELIMINARY HEARING
IN 'B' GROUP, 'FHIS«.E")'AY'T,ifiiE._C,OURT MADE THE FOLLOWING:
V'~~-'ORDER
Respondedo' "fp--!«a'intiffS have instituted a Suit against
'-petiitiorter/defendant for a declaration that the
defe'rTdarIt"ViE:s_ri;ot entitied to sell/convey the Sites formed in
'2__the piairit schedule property other than the buyers brought
":i,"_byr"'t.he plaintiffs in terms of the Memorandum of
understanding (MOU) dated 15.o2.2\oo4 and for
'T/»
K'
,/
3
permanent injunction and consequential reliefs. The
petitioner filed written statement dated 15.01.2005.
Plaintiffs filed LA No.6 seeking permission of the cofort to
incorporate the proposed amendment in
which the defendant filed statement of o_bi__evct.ioiis:;~
trial court upon consideration of
objections, has permitted the_ plaintihffs to ign-"cotrporat'e."in"g
the plaint, the proposed amend'm"e»nt. Qire_s'tie.fiin.g,:the said
order, the defendant has'~v.filediAith_is'-wri.tvf'petition,"
2. Sri ,G.B.Nan_d,if's_h_ .iC_VSVofwd'a,,.'"ll'earned advocate
appearivngx 'for?_the7f,ipe'ti'it.i.oner'contended that, LA No.6
having fifteen filed"a;ft.er'--aVbo:ti-t 5 years of institution of the
suit, VintrodiJci_h9~.a'.'-- new "case and a new cause of action,
riot to ha\/leibeen allowed by the triai court. Learried
r_'_.coo:_nsel:"ifgr»t'her"_:siiiomitted that, there is no due diligence
on pa.rti:ieffV;the plaintiffs in seeking the amendment and
fieven otherwise, the amendment proposed in I.A.No.6 is
"'~"_onne"(:essary to decide the real question in controversy
woetween the parties, which aspect has not befdi considered
1
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S/,
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and hence, interference is called for. Learned counsel
placed reliance on the decision in the case of
M/SREVAJEETU BUILDERS & DEVELOPERS VS.
M/SNARAYANASWAMY 8t SONS & OTHERS - 2009._SAR
(Civil) 1066.
3. Sri Vishnu Hegde, learned advoca_t--e:i--.
for the respondents, on the other iia.nd_con_tend'e:d;vthey E"
termination of MOU dated 15.02.2094itiaagiing-_beéh ple’adéid.:
in the written statement, not§ci’r’.~g the’subs.equ:ent_j’event, in = E’
order to avoid multiplicity oyf…pr.oceedin.gsi.a_nd_,i§foi* just
decisiovninlvtiieiV5.rnaétte”r,:’i’;;4*t’i\io.t§Vw’aVs filed. Learned counsel
submitted that, filed before the issues were
raised. and _a V .p’.re—-‘tria’i” amendment. Learned counsel
«-._5iib’m’:itted that, t’h’e””a’rnendment is necessary to decide the
controversy between the parties, by
noti__ci%ngV.oi:iwl1Eich, the trial court has rightly overruled the
“-..objectio,n’1~and has allowed the application, which does not
any injustice to the defendant. Lined counsel
[A
go
made submissions in support of the findings and
conclusion of the triai court in the impugned order,..VV_i’-..4;”~.,_
4. In view of the rival contentions and
the writ petition, which 1 have:”perused–«, t;hejpoih’t7«’fo’rh.
consideration is:
Whether the impugned”‘ar”a’er is ir.rat’foh=a/”and
illegal, calling for inteiffere’ncé’»-.jn super:/isbry
jurisdiction unci’er” _ Art:ic:i’e of the
Constitution of India?’ it
5. and the written
statemen’tVtM’ou5id in I.A.No.6 is not
foreigngto The rights of the parties in
respect centers around a MOU dated
15.0;§.2t”;.04. execution of the said document and
.paymen’t~..m.ad~-e_ in pursuance thereof, does not appear to
1″bex’i.nirdivspiite.’~h§;;”E’Vhe defendant in the written statement filed
suit had not been framed and thus,
hashhéistatied “that, there is termination of the contract.
A As on the date I.A.i\io.6 was filed, issues in the
rial has not
6
commenced. No legal rights, which has accrued t_o the
defendant, is sought to be taken away. As far as the:’de’i~aVy
is concerned, the bar of limitation being not ~
of fact, but mixed question of fac_t…and |a_–w’,””r’e:{3fuiVres’_’ trial if V’
and could be made a subject matter an lissuejbyu V§’_Vi_i*».iiVng:
effect to the prayer from thegdate I31′. so * L’
that no accrued rights of the vtr.ouid,._be,idefeated
by allowing or:.A.i\io.6.”if7.. f
7. toea|l’oirii’f”–:.an……ié«mendment being
discretionarsf, sound consideration.
The court granting prayer for
amendmegnt. of the pre–triaI stage and a
superior courigiy ought’. not to have interfere with the
‘sV”‘v.disc’ré’tio’n e>z<ercised""'i'n aiiowing the amendment in the
,_abs.eVrice"«o_f céogent reasons or compelling circumstances.
"Iii the case of B.l<.NARAYANA PILLAI vs.
Hif"Vi44"'Vgi..:PAnAgMESHWARAM PILLAI & ANOTHER, reported in (2000)
.' 712, it has been heid as follows:
7
“The purpose and object of Order 6 Rule 17 CPC is to
allow either party to alter or amend his pleadings in
such manner and on such terms as may be just: The
power to allow the amendment is wide andflcanaybe
exercised at any stage of the p1*oceedir1gs’.lVirn1l”Vtclie3
interests of justice on the basis of guidelines V’
by various High Courts and Supreme “It
true that the amendment cannot. «-Vblep C3lain1egl»__pas__a:’
matter of right and under all l(:i,rc’a_n1stari’ces; . BuL_l’it–,ils’._
equally true that t.he’ll__c’:”ct11’ts Awhile such ‘V L’
prayers should not adoptr…liypert;eohnical approach.
Liberal approacl’1~..V_p_ t.:l:;;glV’Vi’-._the ‘general rule
particularly in ‘other side can be
compensated with thef cost=s_. ll l..l’1″ec’l:1nicalities of law
should pelfntitted the courts in the
ardntinistrz-r,tion’.y o«[l_ll”‘justice between the parties.
Anlenislrnents’ in the pleadings to avoid
uncalled for 1r1ul£isp’li–*.:nity of litigation”.
“r~KAeeping””‘§’nl View the controversy between the
‘i__p’art§’es.l::”atlrse”Artpgitoposed amendment has rightly been
ai|oyyed,V.sil_n’gel the same is necessary for determining the
“-.real queystton in controversy. There is no change of cause
p”‘-‘infraction and the additional pleading & prayer proposed in
ta No.6 flows from the contract entered infi between the
parties under the MOU dated 15.02.2004, which __is the
basis for institution of the suit.
10. The defendant has right
written statement and no prejudiceAlVo:r’injusti-iCe.:i:s–.lVikVe’i’yV{
be caused, as the triai of the suit haslnot coymmteniced. a”n.d”aV
he could be compensated for ca:isi’i*i’aV-ioflivthe delay
in disposal of the suit.
11. Keep~:,rrg case, in my
opinion, the. for proper
adjudi§<3ft.l.QV_T1""».Vo'fV5«:.;:t'_hVe 'yianydtiti in filing I.A.No.6 to
incorperate' and prayer, I do not find
any mallafiduesyvosl. the plaintiffs and if I.A.No.6
hadnot been ali!.OVwed by the trial court, it would have iead
'tonmultiipiealitigation and the bar of limitation which the
"'def'e_nda'nt_"_h_as,raised could be an issue for trial.
1,2_y;':~ In the case of M/SREVAJEETU BUILDERS &
"'l:V'_i3~E\/Hl'i:'_LOPERS (supra), suit was filed for recovery of money
with a prayer for deciaration, based on gale deed dated
EN
V, .
.A’pe:i< C0.uAift.,:E–n my opinion, the decision has no application
9
30.09.1987. The said sale deed was held to be invalid and
inoperative by the Apex Court in C.A.Nos.1454–56′
and thereafter, the Urban Land (Ceiling
Act, 1976 was repealed. After rep.ea_ling_-of’t’i{e;,.sa’irj”‘e.Act, V”
plaintiff filed an application for”:am1e’rid’ment”‘
substitution of pleadings andV_pr–ayers.’v- liresaildivappl.i.c-ation
was allowed on 05.04.2003 A,b_y:’thewe_.tgrial”court and when
questioned in writ pet’i’~t.iVpn, it-it by seeking
substitution of pe:’eadings’,”thfe to introduce
a new case,.. the original plaint
and hevncegVilthgeadlmissions made in the
plaint be withdrawn, since it would
affect thlewiggintvs tlj:e..«f:ie:’sp4o’ndents. The order of the trial
courtlwas set?’as_ide. The said order was affirmed by the
5?’
u”to”the i’r’rstant~.,’c’a.se in view of the facts and circumstances
n oticed pra . im
. _ //N
H,»
13. The trial court has correctly considered
I.A.No.6. In the circumstances of the case, the order
allowing I.A.l\io.6 is neither irrational nor illegal.
In the result, I pass the following:
ORDER
i. Writ petition is devoid ‘”anii._’s«.il’ailiil,.,,§fariii
dismissed. it i it i V
ii. However, the respondlvents/plainlti-ifs:ajreflipermitted
to lncorporategjjttie in the
Dlaint W cost of
defendant, within a period of
three wee-i_<as ay.
i,.,’The,,defend”a’nt is entitled to file additional written
within three weeks from the date the
of the amended plaint is served on his learned
“_eouhseL
ix}. The trial court shall raise additional issues,
including the one relating to bar of limitation by
E;
/”
construing the amendment to the plaint having
been effected on the date I.A,No.6 was
v. It is made clear that the amendment.’igjeirrmttiedia
under I.A.No.6 shall not relate bagikiit’0:t’he””date ”
institution of the suit, but’-..’shfaEiiA.theiiioperatiiikéfrbinj
the date I.A.6 was
vi. In the circumstancesV_e:f’:’t,he»._»_case;*pa_rtie§i; to bear
their respective’-(tests:in§.ti§is””2}i;’;~iAt’petition.
sd/-9
i” * *” ‘ Iudge
Ksj/-