Sri.C.K. Sriram Prakash vs Sri. Prathapa Reddy
2022 Latest Caselaw 8753 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        WRIT PETITION NO. 6560 OF 2022 (GM-CPC)

BETWEEN:

SRI.C.K. SRIRAM PRAKASH
S/O C KRISHNAIAH SETTY
AGED ABOUT 68 YEARS
RESIDING AT NO 1413
KONGADIYAPPA MAIN ROAD
2ND WARD, DODDABALLAPURA
BENGALURU RURAL DISTRICT - 561203
                                     ...PETITIONER
(BY SRI.KUMBAR VASANT FAKEERAPPA, ADVOCATE)

AND

1.     SRI. PRATHAPA REDDY
       S/O P V SHESHA REDDY
       AGED ABOUT 62 YEARS
       RESIDING AT NO 7-3/1092-1093
       2ND FLOOR, SHANTHI SHIKARA COMPLEX
       RAJBHAVAN ROAD, SOMAJIGUDA
       HYDERABAD - 500082

       REPRESENTED BY GPA HOLDER
       SRI B SAILESH REDDY
       S/O SUDHAKAR REDDY
       AGED ABOUT 49 YEARS
       RESIDING AT NO 156 GOLD LINK ROAD
       AMARJYOTHI, HBCS LAYOUT, DOMLUR
       BENGALURU - 560071
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2.   SMT K K SUGUNAMBA
     W/O F M RAJAGOPAL
     RESIDING AT NO 733,
     MUNIVENKATAPPA LAYOUT
     NAGARAVARA, BENGALURU - 560045
                                  ...RESPONDENTS

(BY SRI. PRASANNA KUMAR R S, ADVOCATE FOR R-1 A/W
GPA V.KESHAV RAO, SRI. MOHITHE, ADVOCATE FOR R-2)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER PASSED BY THE LEARNED SENIOR CIVIL
JUDGE     AND    JMFC    AT    DODDABALLAPURA    IN
O.S.NO.452/2015 ON THE APPLICATION FILED UNDER
ORDER VI RULE 17 READ WITH SECTION 151 OF THE
CODE OF CIVIL PROCEDURE DTD 24.11.2021 AS
I.A.NO.VI, VIDE ANNX-E AND ETC.,

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       ORDER

The captioned writ petition is filed by

petitioner/defendant No.1, questioning the order

dated 24.11.2021 passed by the learned Senior Civil

Judge and JMFC, Doddaballapura on I.A.No.VI filed

under Order VI Rule 17 read with Section 151 of CPC

in O.S.No.452/2015 as per Annexure-E, permitting the

plaintiff to amend the plaint.

2. Respondent No.1/plaintiff has instituted a suit for

declaration of title and consequential relief of

permanent injunction restraining the defendant from

alienating the suit schedule property. Respondent

No.1/plaintiff, at prayer 'B', has questioned the sale

deed dated 11.09.2006 and subsequent sale deed

dated 16.06.2007. Now, by way of amendment,

Respondent No.1/plaintiff intends to remove some

defects which are typographical error under

amendment No.1. Under amendment No.2

Respondent No.1/plaintiff intends to seek additional

relief of declaration and by way of amendment No.4,

Respondent No.1/plaintiff intends to incorporate

further pleadings at paragraph No.10(a to f). The said

application is strongly resisted by Defendant

No.1/petitioner herein. The Learned Trial Judge having

examined the rival contentions, exercising discretion

has proceeded to allow the application thereby,

permitting respondent No.1/plaintiff to incorporate

proposed amendment in the plaint.

3. Heard the learned counsel appearing for the

petitioner and learned counsel appearing for the

respondents. Perused the order under challenge.

4. The Learned Trial Judge, while allowing the

amendment application, has relied upon the principles

laid down by the Apex Court in the case of Salem D R

Gotwala and others v/s Shamal G decided on

17.09.2021 in Civil Appeal No.5641/2021.

Placing reliance on the said judgment, the learned

Trial Judge has come to conclusion that the proposed

amendment would relate back to the date of the cause

of action. It is this observation which is seriously

questioned by petitioner/defendant No.1 before this

Court.

5. Petitioner's/defendant No.1 contention is that

the suit was filed in 2015 and the proposed

amendment is sought in the year 2021 and therefore,

the relief of declaration which is sought by way of

proposed amendment No.2 is barred by limitation.

The plea of limitation is raised on the premise that

proposed amendment in the present context would

relate back to the date of filing of the suit. On this

count, the learned counsel appearing for

petitioner/defendant No.1, would request this Court to

set aside the said observations as the same virtually

takes away the valid defence of petitioner with regard

to limitation.

6. I find some force in the submission made by the

learned counsel appearing for petitioner/defendant

No.1. The observations made by the learned Judge

while allowing the application that the proposed

amendment would relate back to the date of the filing

of the suit needs to be set aside. The question as to

whether it would relate back and the explanation

offered by the plaintiff that the prayer is already there

at prayer 'B' in the plaint and therefore, the same

would relate back to the date of filing of suit is a

matter of trial. In the present case, learned Trial

Judge erred in holding that amendment of pleadings

would relate back to the date of suit. The reasons

assigned by Trial Court are not in conformity with the

principles laid down by Apex Court in the case of

Sampath Kumar v/s. Ayyakannu and another,

reported in (2006) 4 SCC 385.

7. Therefore, the petitioner on account of

amendment in the plaint is entitled to file additional

written statement and raise all possible defenses that

would arise out of the proposed amendment. In the

event, plea of limitation is raised, it is incumbent on

the part of the learned Trial Judge to frame

appropriate issue in terms of Order 14 Rule 5 of CPC.

With these observations, the writ petition is

partly allowed.

Sd/-

JUDGE

HDK