Karnataka High Court
Smt Lakshmamma vs Sri A. Jnanashekar on 11 February, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.10330 OF 2019 (GM-CPC)
BETWEEN:
1. SMT LAKSHMAMMA
D/O LATE NARAYANAMMA
AGED ABOUT 58 YEARS
HENNUR VILLAGE
ARABIC COLLEGE POST,
KALYANANAGAR, BENGALURU-560043.
2. SRI VENKATESH
S/O RAMAIAH
AGED ABOUT 58 YEARS
NO.707, 2ND MAIN, 10TH CROSS
HOODI GARDEN, MAHADEVAPURA POST
BENGALURU-560048.
...PETITIONERS
(BY SRI. ERAPPA REDDY M, ADVOCATE)
AND:
1 . SRI A. JNANASHEKAR
AGED ABOUT 45 YEARS
FATHERS NAME NOT KNOWN
NAR GOVT. SCHOOL
VIDYA SAGAR
2
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
2 . SRI VISWANATH
AGED ABOUT 55 YEARS
FATHERS NAME NOT KNOWN
NAR GOVT. SCHOOL,
VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
3 . SRI SANGAMITHRA
AGED ABOUT 51 YEARS
FATHERS NAME NOT KNOWN
NAR GOVT. SCHOOL,
VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
4 . SRI GOPAL
AGED ABOUT 63 YEARS
FATHERS NAME NOT KNOWN
NAR GOVT. SCHOOL,
VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
5 . SRI GOVINDARAJ
AGED ABOUT 48 YEARS
FATHERS NAME NOT KNOWN
NAR GOVT. SCHOOL, VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
3
6 . SRI RAJANNA @ GOVINDARAJAPPA
AGED ABOUT 39 YEARS
FATHERS NAME NOT KNOWN
NAR GOVT. SCHOOL,
VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
7 . SMT ASHA
AGED ABOUT 35 YEARS
FATHERS NAME NOT KNOWN
NAR GOVT. SCHOOL,
VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
8 . SMT JAYAMMA
AGED ABOUT 45 YEARS
FATHERS NAME NOT KNOWN
NAR GOVT. SCHOOL, VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
9 . SRI K.M. RAMACHANDRA
AGED ABOUT 55 YEARS
FATHERS NAMEN NOT KNOWN
NAR GOVT. SCHOOL,
VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
10 . SRI ANJANAPPA
AGED ABOUT 61 YEARS
FATHERS NAME NOT KNOWN
4
NAR GOVT. SCHOOL,
VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
11 . SRI GOPALAPPA
AGED ABOUT 63 YEARS
FATHERS NAME NOT KNOWN
NAR GOVT. SCHOOL,
VIDYA SAGAR,
THANISANDRA MAIN ROAD
SHIVARAMAKARANTH NAGAR POST
BENGALURU-560077.
...RESPONDENTS
(BY SRI. C.R. SUBRAMANYA FOR R-1,R-2,R-5 TO R-7
AND R-9
VIDE ORDER DATED 04.01.2021 SERVICE OF NOTICE
TO R-3, R-4 AND R-8, R-10 AND R-11 HELD
SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS FROM THE ADDL. CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU IN
O.S.NO.5380/2016 AND QUASH THE ORDERS PASSED AS
PER ANNEXURE-M ON I.A.NO.9 ON 11.02.2019 IN
O.S.NO.5380/2016 BY THE ADDL. CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU BY ALLOWING I.A.NO.9
AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
5
ORDER
The petitioners being aggrieved by the order
dated 11.02.2019, passed on I.A.No.9 in
O.S.No.5380/2016 by the LXI Additional City Civil &
Sessions Judge, Bangalore, have filed this writ
petition.
2. Brief facts leading rise to filing of this petition
are as under:
The petitioners filed the suit for the relief of
permanent injunction. In the said suit, respondents
appeared and filed written statement. The Trial Court
framed issues. Thereafter the matter was posted for
petitioners' evidence. Petitioners lead their evidence
and closed their side. The matter was posted for
respondents' evidence. When the matter was posted
for the cross-examination of respondents' witnesses,
at that stage, the petitioners have filed an application
seeking for amendment of plaint.
The Trial Court, after hearing the parties,
rejected the application filed by the petitioners.
Hence this writ petition.
3. Heard learned counsel for petitioners and
learned counsel for the respondents.
4. Learned counsel for the petitioners submits
that the proposed amendment does not change the
nature of the case. He further submits that though
there is delay in filing the application, if the said
application is allowed, no injustice would be caused to
the respondents. He submits that the Trial Court has
committed an error in rejecting the application filed by
the petitioners. Hence on these grounds, he prays to
allow the writ petition.
5. Per contra, learned counsel for the
respondents submits that the petitioners had the
knowledge about alienation and further there is a
reference about alienation in the judgment passed in
RFA No.43/2005. He further submits that the
petitioners have filed the application only with an
intention to delay the proceedings. He further
submits that the Trial Court was justified in rejecting
the application filed by the petitioners. Hence he
prays to reject the writ petition.
6. Perused the records and considered the
submissions made by learned counsel for the parties.
7. It is not in dispute that the petitioners have
filed a suit for permanent injunction. In the said suit,
respondents have filed written statement. The Trial
Court framed issues. Thereafter the matter was
posted for petitioners' evidence. Petitioners lead their
evidence and closed their side. Thereafter, the matter
is posted for respondents' evidence. When the matter
is posted for the cross-examination of respondents'
witnesses, at that stage, the petitioners have filed an
application seeking for amendment of plaint on the
ground that the vendor of respondents was not having
title and hence respondents have not acquired any
title over the suit schedule property. The petitioners
have produced copy of the judgment passed in RFA
No.43/2005. From the perusal of the said judgment
which came to be disposed of on 04.10.2007, the
same is prior to the filing of the suit. In the said
judgment, Hon'ble Division Bench has made an
observation in regard to the alienation made in favour
of the respondents. Inspite of having knowledge
about the alienation, the petitioners did not choose to
file a suit for declaration challenging the alienation
made in favour of respondents No.1 and 2.
8. As per the proviso to Order VI Rule 17 CPC,
no application for amendment shall be allowed after
commencement of trial unless the Court comes to the
conclusion that inspite of due diligence, the party
could have not raised the matter before the
commencement of trial. The petitioners could not
have raised the matter before the commencement of
trial. In view of the law laid down by the Hon'ble
Apex Court in the case of PANDIT MALHARI MAHALE VS.
MONIKA PANDIT MAHALE & ORS. [(2020) 11 SCC
549], if the party fails to explain due diligence, then
the application filed under Order VI Rule 17 of CPC is
liable to be dismissed. In the present case, as
observed above, the petitioners have failed to
establish that inspite of due diligence, they could not
raise the issue before the commencement of trial.
Further, the application filed by the petitioners is also
at a belated stage. The Trial Court, after considering
all the materials placed on record, is justified in
rejecting the application filed by the petitioners.
Hence, I do not find any grounds to interfere with the
impugned order by exercising supervisory powers
under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
SD/-
JUDGE
RD
