IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13"' DAY OF SEPTEMBER, 2071s:.i,T:"'»E.
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA,'V_C3'QW§'A.4_ T
WRIT PETITION No.26274;f;20:tQ' (;G"M-cypc;":)'- '
BETWEEN:
Sri V.Krishna Reddy,
S/o. late G.Veni<ataswa
Aged 62 years, _ ._ _ _ V.
R/at Mul¥angichetiapalEi,'* * '-- L V '
Bagepallflafuk, I A
Koiar District.
y Rep1.d.y,' " V . ' -~
PETITIONER
(By Sri S.K.:VenE§a'ta;;RedT§i'y,'A_d\:;)»fVv
1. Sri K'..Krishna, T'
S/0. Kaplnalah... " j _
Aged about 48 y._ea'rs,'~v'
R,-fat No.4, :'»'E,G;Road,
,_Réem:afinagaran'1",'vv- ----------
._Bangafiofe,Rural District.
I -2." .,Smtv..:v'M..n£VIafr2ggiia,
" A We/0. Ve-Tfaekaita Reddy,
Aged 53. V yea rs.
Sri .VveT§kata Reddy,
'S/no. G.Venkataswamy Reddy,
-Aged 62 years.
No.2 and 3 are R/at
Ix.)
"Vaibhavi Nilaya", No.268,
4" Main, 3"' 'B' Cross, 3'" Stage,
11 Block, Basaveshwaranagar,
Bangaiore - 560 079.
4. Sri B.Ramaiah,
S/o. Bettaiah,
Aged 44 years, _ ' *
R/at No.78, Sri Manjunatha Nila'=,I'a,1_'°*~'l
3"' Main, Sanjevini Nagar, _ =
Moodalapalya, ' '
Bangalore --- 560 072.
V _ RESAPQSIDENTS
(By Sri K.Somasekhar F{'ed'dy,'-Adam foVr}?.2'~& R3;
Smt. M.R.Shaiamala, for M./s. Ke'svy_.&'C_o..V, Advs. for R1;
Service of notice. to R4.idi«ray.ing to call for records and
quash the oi.rd'er1'.;_:dat.ed= t26.07_'_.20ji0 vide Annexure ~-- 3
passed'io'n"I;'A.c.:No.6"§in o'.«s;'No.31'7'4/2006 on the file of the
Addf. City Ci-vii '8';Sessionis"3vi.i_d'ge, Bangalore City.
This._p'etition_lco'n1i:n'g__':ori'Jfor preliminary hearing in 'B'
group, this d.ayvithe-Co:;rtr'tade the following:
'*»ti» _____ QRDER
' ..VRes'po'ndjent No.1/plaintiff filed suit on 21.04.2006 for
therellietotcjsptécific performance of the agreement of sale
jdated 02i0$."2003 in respect of the suit schedule property
':j_*agali2n.st respondents 2 to 4. Defendants 1 & 2 filed written
‘ statement dated 11.07.2006 and contested the suit ctaim.
H4″ defendant/petitioner purchased the sit property on
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09.03.2006 and hence he was impieaded as additionai
defendant. The petitioner/4″‘ defendant filed written
statement on 04.07.2008. Issues were fra-q*i’edf”-«.:}onu
02.02.2010. The suit was posted for piaintiff’s..Ae;vid4eric.e’*i0i’ri”it to
18.03.2010. Plaintiff fiied LA No.6. on..o1s.07?.02’0i’.0»’ §eeiig:_ng, 0″
permission of the court to a’me%i’d’~ the
incorporation of additional piea”d.i.ng a’r’.d_ avdd2it,i’0’n._:a’i'”prayer ” 0′
i.e., to direct the 13′ and 4f5_….d:eferidant.’t0–rexeisute the
registered saie deed ..t:o’»»deiiver physicai
vacant possession of Despite the
objections fi~ied_ triai court /’has
aiiowec:i.,_’I.i1\’ the said order, the 4″‘
defendanthas filed: téhiig ‘petition.
4:3, .2 iS.A.i§;\’leri”i<ata Reddy, iearned advocate
é"'apVpea.riii'g thevumpietitioner wouid contend that, the
LA No.6 has not been considered and
that'iitheV.__'ciai0rnmade in LA No.6 is ex–facie barred by time,
as as, the piaintiff is making ciaim on the basis of
_Aag'reerneht dated 02.08.2003, which was canceiied/
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terminated on expiry of 31.10.2003 and that the suit
property was sold. in favour of the 4*” defendant/petigtioner
as per the registered sale deed dated
pursuant to an agreement of sale dated ”
the safe deed having been execu’té’d’*mA_u*,;h tio-Ctiheg
fiiing of the-suit and since there is
Sreenidhi Souharda Sahakara’–vE§:a’~nk Niva..rr1itf’,3’a* t§–a4n’g’aE’ore, ”
the prayer is untenab!-exboth””‘on,_:’faVct,s.’ and”in iaw. He
further contended of issues on
02.02.2010, thejgvadetigg,igi,j1,ae¢~m,,imrave commenced
and hence Rufe 17 CPC is
attracted.–. for the suit and the
proposed and a new case is being
intrmduced, inV’v’ierr oféiwhich, the impugned order which is
not considered, and reasoned order, is perverse and illegaf.
1″Lea.rn«ed’ contended that, the trial court has acted
irrati’onaiiy’and illegaily in passing the impugned order.
3;=–~ ” Smt.M.R.Shaiamaia, fearned advocate
2._”‘a_ppearing for the respondent No.1, on the other hand
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as
would contend that, the trial court has kept in its View the
settled principles of law with regard to grant-._ of
amendments. Learned counsel submits
amendment being necessary to determine” the,V”‘ree.l’_f
questions in controversy between,’th”e”parti.es.;anVd.inVo*rder’:
to avoid multiplicity of proceAed_ingVs,
Learned counsel submits that,’~i.frrnay for it
trial and in the facts circu’msjtan’ces ofithe ‘case, the
order passed on LA No.6 ;_is not :i’rr_a_tiofr_iaVl” and illegal and
hence, no interference cal’i’ed._VVfoi?’ in exercise of
supervisorysjiu of Constitution of
India.
4. j’povAver”…’-to allow an application for
of “p’lavi.ri.t.«is neither in doubt nor in dispute.
The –vwAidie:”pow£ér_on the part of the court is circumscribed
by the ractié;rsV:l.i1 it
(12) .. the application must be bonafide
” the same should not cause any injustice to the
other side, and X
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pa
(3) it should not affect the right aiready accrued to
the defendants ‘
The trial court to akiow LA No.6 has
following reasons:
“The defendant No.4 having :been”niade_ta
the suit. an opportunityhas to”‘o_e”givenuVto7 iaiaiintiff
to plead the facts relatinglto, the cief_e11d_a_nt”1NoQV4; By 00
that only it cannot beggis-atdv~t}1’a.t theteigs “change of
subject matter of”‘su;1t_ got made out. The
merits of the contenti_ons_VVbean’no.t’A–»be__’Considered and
conseqttentiy-_ the 2 iixiatitation cannot be
constdeted stage ofthe Hence rejecting
the Co11téntions d_e’fe7nda§_nts, LA No.6 is allowed”.
._ plaintiff, the 15′ defendant
being suit property executed an
agrejement Vofnstavlte in his favour on 02.08.2003 and
rreceix/e’d.tAth4e*advance sale consideration amount. The time
iirrt1’_i__tV.tfi>tet;.,,tVyva’sV’three months from the date of agreement.
The 2″5″‘d-etendant is the husband of 15’ defendant and
allegediys received Rs.S0,000/- from the 3″ defendant for
‘*sai’e’«of the suit scheduie property and hence they were
….–.fiade parties to the proceedings. The oiaintéff having
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come to know that the 2″” defendant is attempting to set!
the suit property in favour of one B.Ramaiah, got _issued
15!’.
iegal notice dated 13.10.2003 calling upon
defendant to executed the registered sale deed, ‘
the 13′ defendant sent a repiy dated Piatintiff in
aiieges that 15’ defendant did not iagctililn ‘rterhi.sgf’o.fthe:r”.i-eiiigrig
and did not perform the coriftract. Hen__ce,_avno’t.he*r~»Vri’otice’=3′
dated 12.11.2005 / 22,11.2005VVVwvas”caus.ed’,~~forVgwhich the
15′ defendant repiied defauit on the
part of the piaiéntiff. ihstiftuted for the reiief
of specific, the cause of
actionifig and continued upto
23.11.2oo5_3 V 3 1 A
The-I15′ :& 2″” defendants filed written
.’sta,tem_ent aiidpcontended that, the time agreed to under
10’th’e.._afgree_nd_en.t”dated 02.08.2003 was the essence of the
contractiandt expired on 02.11.2003. The other averments
‘.,i:rna.;j_e in the plaint were denied. The readiness and
it ‘wViiiin’gness on the part of the plaintiff was disputed. It was
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stated that, having waited for about 1 ‘/2 years and…_since
they were in dire need of funds, they mortga’g’e:d,*f._t’iie
property and borrowed ioan from Sreenidhi
Sahakara Bank Niyamitha, Bangalore…and.’_4’for’4″ti§e4 it
of discharging the mortgage,
agreement of sale in fav’eu:r”-»..of one__ 0′ 0
W/o.V,Krishna Reddy on 22,AO.9,i2,O_0’:’3..and “thereafter sold
the property in favour'”‘(3fé’ 09.03.2006
and delivered 4_:po.sses~s’io’ri* iitiofj’ It was
submitted also transferred
to the hence the plaintiffs have
no rightoveritthe. The saie deed executed in
favour of specificaliy pieaded in para
10 of the nwrittten statement. The 4″‘ defendant was
VsobseqLi’e:nt!y”injpieaded. Thereafter, LA No.6 was filed
se_e’iéi_ng”‘a’inei’idifient of the piaint i.e., to incorporate
_ additionai. ‘pleadings and an additional prayer to the
if if if .,fofiiotwing”‘effect:
“’11(A) It is submitted that the 1*” defendant despite
E giving the paper publications on 29.10.2005
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intimating the public at large that they shall not
transact with the 13’ defendant in respect 0fvl:1;11.:_3ESlllt
schedule property, the 1st defendant has
registered sale deed in favour of the 4″‘ V’
9″‘ March, 2006. The said factmeame.’t’o”be:lfnowleVdge
of the plaintiff only when the léfdjefendant
written statement. In viewlx_of*_the
defendant was as” _av the ” V
proceedings.
l1{B} It is submittedjthalt tl:–i_eel4’i-*.¥jdelfetftdant is also fully
aware of the fact that a.~n.:fva§r_een1ent subsisting
betweenuthe ‘defendant and the
said intinilated .thewp–ublic at large on
29. v5’a1ne,l’lthe 41:2 defendant has
yeht’ui-g§1i:,to thlelsuilt schedule property and
therefoie -Iltllll dlefendarit is not a bonafide purchaser .
of thestuit ‘sch’edt1le—— property. In View of this, the 4″
_ defendant is.also’.re€juired to join as a party alongwith
1%} deferida.nt’so as to executed the registered sale
., , , d-filed inlfavour of the plaintiff.
direct the 1″ defendant and the 4″‘
A defendant to execute the registered sale deed in favour
ofvthe plaintiff and consequently direct both of them to
if ‘T deliver physical vacant possession of the suit schedule
“property in favour of the plaintiff’.
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7. The only reason stated in the affidayit in
support of the prayer for amendment is that,.vj”t.hfen4_’f”
defendant has ventured to purchase the set-t
property on 09.03.2006 during _t.h.e._’subsist’en’ceV’.”of_’_the
agreement between the plaintiff and
he having been impleaded sulrseduently, no’~ 1′
pleadings against him,__ it is necess_aiy_y to see–ks_Aanti3endment
of the plaint, which will not ‘ccha,nj.ge”-triflenature of case or
cause of actio’.n’.–_ In=”‘t’r’ie:”:obj.ectio.rss.,:”filled by the 4″‘
defendant,__ ..i.t§’–.. _«;_alle_g_ed_ th.at,j . purchased the
propertyy__pri’o{‘:”td1.;the suit, the application is
belated and wo?-.iid_y”change—tlm nature of suit and also the
cause of action.
VFrom–»itvh_e«tvrecord it is clear that, 1″ & 2″”
id;efeVnda_nts’ifiled_the written statement on 11.07.2006 and
“s’tat’ed sale of suit property in favour of the 4″‘
; defeiidant “aha have furnished the full particuiars of the
“f.,registerved sale deed. I.A No.6 was filed on 16.07.2010
— more than three years after the written statement was
Wfiled by the 15″ & 2″” defendants. There {inc explanation
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of whatsoever for the long delay. The negligent
complacency on the part of the plaintiff would noteperrnyit
them to amend the plaint, more particu|arly3V..i..w’hen*~-..tr:e_T’»
claim has, apparently, become barredby ti_:’he.”~~:’.’; . ‘
9. It is true that, amen:dme1nt”‘wals~.
certain cases even when the .claims were» bVar,re”d_:’byr~ time. ” ‘
However, for that there had to..befa_v’a,l,Aid lziasisrnade out in
the application and the part of
the plaintiffs. particularly
when an h,aVV;;’ey.”fvne’__Veffect of defeating
the righ__tsVcreaitedglinll by the lapse of time,
the prayer- be readily allowed. The
facts of th’e._,case”doVe.s_ show any such attempt having
bee.n.{¥rna~de “the_._’plaintiff in support of LA No.6. As
»afVready._’noticed__, the trial court has not considered the
}’e~bj’ec.tio’n:=§”.’1f{:led”to LA No.6. It has not kept in its view the
V -V attra’ctio’-ridofproviso under Rule 17 of Order 6 CPC, since
have been framed and there is deemed
. commencement of trial. The plaintiff has not shown due
T “diligence. The defendants 1 & 2 in the written statement
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stated about the sale of suit property under a registered
sale deed dated 09.03.2006 and having given.:’~t_he.’_2full
particuiars thereof, the plaintiff was bound tioi.
plaint, if he wanted to challenge…th_e said”s’a.l’.e.’Vd’eedV or
obtaining any relief against the :’p,urc’haser/4″‘ .:defen’da’ntg
The Second Part of Arti_cle”l5§V4–..of the iLim_it2a.t’iAo§n~~Act~igets”..2′
attracted atleast with the reph,r..,n0t,iice dated
23.11.2005 or from Vtheiidate was sold on
09.03.2006 in fa-\/your er”the’;4’fi” The said sale
deed has years period,
statement was filed on
11.07},200e.A2″0:..e.rfr~upfnvahiese. to understand as to why the
plaintiff atleast from 11.07.2006.
Thegapplicatio’n~,._V_,as already noticed, is silent with regard to
the inV’te.rven–i.ng period and no explanation much less
ho’2n_a«fid’e§_~v_..V_are””forthcoming in support of the affidavit in
I.A’;’No.v6.’ ‘7Having not challenged the sale deed dated
2. 09.._,03.Z’006 by the 4*” defendant atleast within three years
‘”‘fVVro’rn” the date the 15’ & 2″” defendant filed the written
“statement on 11.07.2006, it is not open to the plaintiff to
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seek amendment of pleading and prayer ‘noticed supra.
Trial court has not noticed any of the material aspeCVts.._ya~nd
has mechanically allowed LA No.6. In the circ-un*s’sta;’n.c:es,_”‘ .
it is not permissibie to permit the__p.l.aintiff_–‘t’o'”int_roduc’eV an ”
apparently, time barredclaim. T-hereis irrrationallity./..an:-jA
iilegality on the part of ti’ie”-«trial ‘court iny’passiVng..’3 the.u*
impugned order.
For the foregoing’ téhlelvviwritpetition stands
allowed and tne.:irnpug;nVed’ ivgualshed.
rlowcéxég/’edict ,that the finding and
obserylati’onsg:’:lhad’e he’i’rgi’i§imited for consideration
of the grounds raised as against
the orderlialilovwing Ai.yA’«…l¥io.6, shall not be construed as
ex.p_’r:’ession,,y_of op’in.i.o.n«on the merits of the case, which is
l.iable_ disposed of in accordance with iaw, un~
ihfluencedv~V’iii}y.i1the observations made herein.
2 ..(v)1’rdered accordingly.
Sad/ti
Itaga
M ” Ksj/~