Karnataka High Court
Siddappa vs Sri. Ashwathaiah on 24 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.18814 OF 2019 (GM-CPC)
C/W
WRIT PETITION NO.18815 OF 2019 (GM-CPC)
IN WP NO.18814 OF 2019
BETWEEN
1. SIDDAPPA
S/O LATE THIMMAIAH,
AGED ABOUT 70 YEARS,
2. SMT JAYAMMA
W/O LATE PUTTAIAH,
AGED ABOUT 60 YEARS,
BOTH ARE RESIDING AT
SHIVANAPURA VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK-562 123.
...PETITIONERS
(BY SRI B S SACHIN, ADVOCATE)
AND
1. SRI. ASWATHAIAH
S/O LATE HANUMANTHAPPA,
AGED ABOUT 50 YEARS,
R/AT NO.171, VISVESWARA 6TH BLOCK,
ULLALU MAIN ROAD,
2
NUGGALIPALYA,
BENGALURU - 560056.
SMT ARASAMMA
SINCE DEAD BY HER LRS.,
2. SMT RATHNAMMA,
W/O LATE THIMMAIAH,
D/O LATE ARASAMMA,
AGED ABOUT 53 YEARS,
3. SMT MUNIYAMMA
W/O LATE SIDDAARASAIAH,
D/O LATE ARASAMMA,
AGED ABOUT 37 YEARS,
BOTH ARE RESIDING AT
THIMMABOVIPALYA COLONY,
SHIVANAPURA POST, DASANAPURA HOBLI,
BENGALURU NORTH TALUK-562 123.
4. SMT JAYAMMA
W/O RAMACHANDRAPPA,
D/O LATE ARASAMMA,
AGED ABOUT 47 YEARS,
R/O CHENNANINGAIAHNAPALYA,
NIDUVANDA POST,
THYAMAGONDLU HOBLI,
NELAMANGALA TALUK - 562 123.
5. SMT. RADHA
D/O LATE SIDDAGANGAMMA,
AGED ABOUT 21 YEARS,
6. KUM. SHILPA
D/O LATE SIDDAGANGAMMA,
AGED ABOUT 19 YEARS,
BOTH ARE RESIDING AT
3
C/O ARASAMMA,
THIMMABOVIPALYA,
SHIVANAPURA POST,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK-562 123.
DASEGOWDA
SINCE DEAD BY HIS LRS.,
7. SMT LAKSHMIDASEGOWDA,
W/O LATE DASEGOWDA,
D/O LATE HANUMANTHAIAH,
AGED ABOUT 35 YEARS,
8. SRI RAHUL
S/O LATE DASEGOWDA,
AGED ABOUT 12 YEARS,
SINCE MINOR REPRESENTED BY
COURT GUARDIAN
9. KUM BINDHU
D/O LATE DASEGOWDA,
AGED ABOUT 8 YEARS,
SINCE MINOR REPRESENTED BY
COURT GUARDIAN
RESPONDENTS 7 TO 9 ARE
R/AT VIVEKANANDA BLOCK,
4TH CROSS, NEAR SHREE RAMA &
SHREE SHANIDEVARA TEMPLE,
MALLESHWARAM, WARD NO.77.
RAJMAHAL GUTTAHALLI,
BENGALURU-560 003.
10. SRI MAREGOWDA
S/O LATE VENKATAPPA,
AGED ABOUT 40 YEARS,
R/O THIMMABOVIPALYA,
SHIVANAPURA VILLAGE,
4
DASANAPURA HOBLI,
BENGALURU NORTH TALUK.
....RESPONDENTS
(BY SRI G A MITHUN, ADVOCATE FOR R1;
SRI A SAMPATH, ADVOCATE FOR R10;
NOTICE TO R2 TO 9 I.E., DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 28TH JANUARY, 2019 ON MEMO DATED 23RD
JANUARY, 2019 AND 24TH JANUARY, 2019 AS PRAYED FOR
PASSED IN ORIGINAL SUIT NO.592 OF 2009 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE AT NELAMANGALA AS
PER ANNEXURE-A AND CONSEQUENTLY ALLOW MEMOS DATED
23RD JANUARY, 2019 AND 24TH JANUARY, 2019 AS PRAYED FOR.
IN WP NO.18815 OF 2019
BETWEEN
1. SIDDAPPA
S/O LATE THIMMAIAH,
AGED ABOUT 70 YEARS,
2. SMT JAYAMMA
W/O LATE PUTTAIAH,
AGED ABOUT 60 YEARS,
BOTH ARE RESIDING AT
SHIVANAPURA VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK-560 063.
...PETITIONERS
(BY SRI B S SACHIN, ADVOCATE)
AND
1. SRI NAGARAJU
5
S/O VEERANNA,
AGED ABOUT 50 YEARS,
R/AT CONDUCTOR COLONY
MAGADI MAIN ROAD
VISHWANEEDAM POST
BENGALURU - 560091.
SMT ARASAMMA
SINCE DEAD BY HER LRS.,
2. SMT RATHNAMMA,
W/O LATE THIMMAIAH,
D/O LATE ARASAMMA,
AGED ABOUT 53 YEARS,
3. SMT MUNIYAMMA
W/O LATE SIDDAARASAIAH,
D/O LATE ARASAMMA,
AGED ABOUT 37 YEARS,
BOTH ARE RESIDING AT
THIMMABOVIPALYA COLONY,
SHIVANAPURA POST,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK-560 063.
4. SMT JAYAMMA
W/O RAMACHANDRAPPA,
D/O LATE ARASAMMA,
AGED ABOUT 59 YEARS,
R/O CHENNANINGAIAHNAPALYA,
NIDUVANDA POST,
THYAMAGONDLU HOBLI,
NELAMANGALA TALUK - 562 111.
5. SMT. RADHA
D/O LATE SIDDAGANGAMMA,
AGED ABOUT 31 YEARS,
6
6. KUM. SHILPA
D/O LATE SIDDAGANGAMMA,
AGED ABOUT 21 YEARS,
BOTH ARE RESIDING AT
C/O ARASAMMA,
THIMMABOVIPALYA,
SHIVANAPURA POST,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK-560 063.
DASEGOWDA
SINCE DEAD BY HIS LRS.,
7. SMT LAKSHMIDASEGOWDA,
W/O LATE DASEGOWDA,
D/O LATE HANUMANTHAIAH,
AGED ABOUT 45 YEARS,
8. SRI RAHUL
S/O LATE DASEGOWDA,
AGED ABOUT 22 YEARS,
9. KUM BINDHU
D/O LATE DASEGOWDA,
AGED ABOUT 20 YEARS,
RESPONDENTS 7 TO 9 ARE
R/AT VIVEKANANDA BLOCK,
4TH CROSS, NEAR SHREE RAMA &
SHREE SHANIDEVARA TEMPLE,
MALLESHWARAM, WARD NO.77.
RAJMAHAL GUTTAHALLI,
BENGALURU-560 003.
10. SRI MAREGOWDA
S/O LATE VENKATAPPA,
AGED ABOUT 40 YEARS,
R/O THIMMABOVIPALYA,
7
SHIVANAPURA VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK -560 063.
....RESPONDENTS
(BY SRI G A MITHUN, ADVOCATE FOR R1;
SRI A SAMPATH, ADVOCATE FOR R10;
NOTICE TO R2 TO 9 I.E., DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 28TH JANUARY, 2019 ON MEMO DATED 23RD
JANUARY, 2019 AND 24TH JANUARY, 2019 AS PRAYED FOR
PASSED IN ORIGINAL SUIT NO.593 OF 2009 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE AT NELAMANGALA AS
PER ANNEXURE-A AND CONSEQUENTLY ALLOW MEMOS DATED
23RD JANUARY, 2019 AND 24TH JANUARY, 2019 AS PRAYED FOR.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
A common question of law is involved in both these
petitions. These writ petitions are filed by the defendants 3 and
4 in Original Suit No.592 of 2009 on the file of the Additional
Senior Civil Judge at Nelamangala, challenging the order dated
28th January, 2019, dismissing the memo filed by defendants 3
to 5.
2. The relevant facts for adjudication of these writ
petitions are that, the plaintiff/respondent No.1 herein has filed
original suit No.592 of 2009 on the file of the trial Court seeking
relief of specific performance of the sale agreement dated 21st
January, 2005 and consequential relief to execute the registered
sale deed in favour of the plaintiff. The said suit has been
contested by the defendant by filing written statement. In the
meanwhile, the plaintiff filed IA.11 under Order VI Rule 17 of the
Code of Civil Procedure and sought for amendment of schedule
of agreement of sale dated 21st January, 2005 (Exhibit P11 to
plaint schedule) and insert paragraphs 29(a) to (c) to the plaint.
The said application was resisted by the defendants. The trial
Court, by order dated 02nd January, 2017, rejected IA.11 filed by
the plaintiff. Feeling aggrieved by the same, the plaintiff has
preferred writ petition No.19566 of 2017 before this Court and
the said writ petition is contested by the defendants. This Court,
after hearing the learned counsel appearing for the parties, by
order dated 07th December, 2018, disposed of the petition
allowing the amendment of the plaint as per paragraph 10 of the
said order. Thereafter, the defendants herein have filed Review
Petition No.64 of 2019 before this Court seeking review of the
order dated 07th December, 2018 and this Court, by order dated
09th April, 2019 permitted the review petitioner to withdraw the
Review Petition with liberty to assail the order dated 28th
January, 2019 passed by the trial Court. It is also forthcoming
from the writ papers that the defendants 3 to 5 have filed a
memo for directing the plaintiff to strike off the illegal insertion
in Exhibit P1-Agreement of sale, as the same is opposed to the
order dated 07th December, 2018 passed by this Court in Writ
petition No.19566 of 2017. The said memo was resisted by the
plaintiff. The trial Court, after considering the material on
record, by impugned order dated 28th January, 2019, dismissed
the memo filed by the defendants 3 to 5. Being aggrieved by
the same, the defendants 3 to 5 have presented these writ
petitions.
3. I have heard Sriyuths B.S. Sachin, learned counsel
appearing for the petitioners; G.A. Mithun, learned counsel
appearing for the respondent No.1; and A. Sampath, learned
counsel appearing for respondent No.10.
4. Sri B.S. Sachin, learned counsel appearing for the
petitioners, drew the attention of the Court to paragraph 10 of
the order dated 07th December, 2018 passed in writ petition
No.19566 of 2017 and submitted that this Court has permitted
the plaintiff for amendment of the plaint alone and not the
schedule as allowed by the trial Court in the impugned order.
He also referred to the order passed by this Court in the Review
Petition No.63 of 2019 and submitted that this Court has granted
liberty to the petitioners herein to assail the order dated 28th
January, 2019 and therefore, he contended that, the insertion
made by the plaintiff in the agreement of sale is contrary to the
declaration of law made by this Court in writ petition No.19566
of 2017 and the said aspect of the matter has not been properly
appreciated by the trial Court while passing the impugned order
and accordingly, he sought for interference of this Court in the
impugned order.
5. Per contra, Sri G.A. Mithun, learned counsel appearing
for the respondent No.1 (defendant) contended that the writ
petition No.19566 of 2017 is filed before this Court assailing the
order dated 02nd January, 2017 passed on IA.11 filed under
Order VI Rule 17 read with Section 151 of the Code of Civil
Procedure wherein the application in IA.11 refer to the
amendment of the schedule of the agreement of sale dated 21st
January, 2005 (Exhibit P11) and therefore, this Court, in its
entirety, allowed the amendment application in IA.11 and as
such, permitted to amend the schedule to the agreement of sale.
In this connection, he referred to Section 26(1)(b) of the Specific
Relief Act, 1963 and contended that the language contemplated
in Section 26(1)(b) of the said Act provides for the amendment
of the instrument also. In this connection, he referred to the
judgment of the Hon'ble Apex Court in the case of POORAN RAM
v. BABU RAM AND ANOTHER reported in AIR 2008 SC 1960 and
submitted that even mistake crept in sale agreement be rectified
in terms of the provisions contained in Section 26 of the Specific
Relief Act.
6. Having heard the learned counsel appearing for the
parties, the core question to be answered in this writ petition is
whether the insertion of the words in the agreement of sale
referring to the description in the schedule is just and proper?
7. I have carefully considered the submissions advanced
by the learned counsel appearing for the parties. Undoubtedly,
the suit is filed by the plaintiff seeking relief of specific
performance of contract based on the Agreement of sale dated
21st January, 2005. IA.11 is filed seeking permission to amend
the Schedule of agreement of sale-Exhibit P1. The said
application IA.11 came to be dismissed the trial Court and the
same was assailed before this Court in Writ petition No.19566 of
2017 and the same came to be disposed of by order dated 07th
December, 2018 (Annexure-H). Paragraphs 10 and 11 of the
Order reads as under:
"9. In the backdrop of the aforesaid well settled legal
principles, the facts of the case may be seen. In the
instant case, by way of proposed amendment, the
petitioner is seeking amendment of the descripton of the
property. Section 26(1)(b) of the Act provides that the
plaintiff may, in any suit in which any right arising under
the instrument is in issue, claim in his pleading that the
instrument be rectified. Therefore, even though the
provisions of Order VI Rule 17 of the Code may not
strictly apply to the fact situation of the case, yet the
provisions of Section 26(1)(b) of the Act read with
Section 151 of the Code can be invoked. The merits of
the averments made in the application for amendment
are not required to be considered at the stage of dealing
with the application for amendment. Even if the
application for amendment is allowed, the burden to
prove the averments sought to be incorporated by way of
amendment, remains on the plaintiff . It is also relevant
to mention here that even though the suit was instituted
in the year, 2005, yet the aforesaid civil suit is still at the
stage of cross-examination of plaintiff witness No.1.
Therefore, in the peculiar fact situation of the case and in
the interest of justice, in order to effectively and
completely adjudicate the controversy involved in the
suit, it would be expedient to permit the petitioner to
amend his plea. Needless to state that the defendants
shall have right to file an application seeking
consequential amendment in the pleadings.
10. In the result, the impugned order dated
21.01.2005 is hereby quashed and the application fled by
the petitioner for amendment of the plaint is here by
allowed subject to payment of cost of Rs.5,000/- to
respondent nos. 3 and 4. Needless to state that the
respondents shall be at liberty to file an application for
consequential amendment."
(emphasis supplied)
9. Perusal of the operative portion of the order in writ
petition would indicate that, the petitioner has been permitted to
amend the plaint, however, nothing is stated insofar as
amendment of schedule to the schedule in the agreement of
sale. However, taking into consideration the order passed by
this Court as a whole above, an argument has been advanced
before this Court with regard to rectification to be made in
schedule to the agreement of sale that can be referred to in
paragraphs 3 and 9 also. At this juncture, it is also relevant to
consider the order passed by this Court in Review Petition No.64
of 2019 dated 09th April, 2019. The operative portion of the
order reads as under:
"Learned Counsel for the petitioners seeks leave of
this Court to withdraw the review petition with liberty to
assail the order dated 28.01.2019 passed by the trial Court
by which, the trial Court on the basis of the order passed by
this Court has permitted the respondents to amend the
documents.
Accordingly, the review petition is dipsosed of with
liberty as aforesaid."
10. Taking into consideration the observation made by
this Court reserving liberty to the petitioners herein/defendants 2
and 3 to challenge the order dated 28th January, 2019, I have
carefully considered the impugned order passed by the trial
Court. The trial Court, taking into account the discussion made
in the order passed by this Court in the writ petition, has rightly
dismissed the memo and I therefore, do not find any material
illegality in the impugned order dated 28th January, 2019, passed
by the trial Court. It is also useful to refer to the judgment of
the Hon'ble Apex Court in the case of POORAN RAM (supra),
wherein at paragraphs 11 and 12 of the judgment, the Hon'ble
Apex Court, has observed thus:
"11. After closely examining the provisions made
under Section 26 of the Specific Relief Act, 1963, we do
not find any difficulty to hold that in a suit for specific
performance of contract for sale, it is permissible to
amend a part of the description of the suit property not
only in the plaint but also in the agreement. Section 26
clearly says as to when a contract or other instrument
can be rectified and provides that when through fraud or
a mutual mistake of the parties, the agreement in writing
does not express their real intention, it is open to the
parties to apply for amendment of the instrument. It
provides that when such a situation arises, then-
(a) either party or his representative in interest
may institute a suit to have the instrument
rectified, or
(b) the plaintiff may, in any suit in which any right
arising under the instrument is in issue, claim in
his pleading that the instrument be rectified.
12. A reading of these two conditions made
under Section 26 of the Act would amply show that either
party may institute a suit to have the instrument rectified
or a party who has already filed a suit in which any right
arising under the instrument is in issue may claim in his
pleading that the instrument be rectified. So far as the
facts of the present case are concerned, it cannot be
doubted that the main issue in the suit for specific
performance of the contract for sale was relating to the
agreement for sale in which a part of the description of
the suit property was wrongly given by mutual mistake
and therefore, needed to be amended. Section 26, of
course, says that it would be open to a party to institute a
suit for correcting the description of the suit property, but
the proviso to Section 26 clearly permits that where a
party has not claimed any such relief in his pleading, the
court shall at any stage of the proceeding allow him to
amend the plaint on such terms as may be just for
including such claim. From a plain reading of the
provisions under Section 26 of the Act, there is no reason
why the prayer for amendment of the agreement to
correct a part of the description of the suit property from
Chak No. 3 SSM to Chak No. 3 SLM, later on converted to
Chak No. 3 SWM could not be granted. In our view, it is
only a correction or rectification of a part of the
description of the suit property, which cannot involve
either the question of limitation or the change of nature
of suit. In our view, the suit shall remain a suit for
specific performance of the contract for sale and a
separate independent suit is not needed to be filed when
the proviso to Section 26 itself clearly permits either
party to correct or rectify the description of the suit
property not only in the plaint but also in the agreement
itself. So far as the question of limitation is concerned,
the agreement was entered into on 12th of April, 1991
and the suit, admittedly, was filed within the period of
limitation. Therefore, even if the amendment of plaint or
agreement is allowed, that will relate back to the filing of
the suit which was filed within the period of limitation. So
far as the submission of the learned counsel for the
respondent that the rectification of the agreement cannot
be permitted is concerned, we are of the view
that Section 26(4) of the Act only says that no relief for
rectification of instrument shall be granted unless it is
specifically claimed. However, proviso to Section 26, as
noted herein earlier, makes it clear that when such relief
has not been claimed specifically, the court shall at any
stage of the proceeding allow such party to amend the
pleading as may be thought fit and proper to include such
claim. Therefore, we are not in agreement with the
learned counsel for the respondent that Section 26 would
stand in the way of allowing the application for
amendment of the agreement. The views expressed by us
find support in a decision of the Madras High Court in
Raipur Manufacturing Co., Ltd Vs. Joolaganti
Venkatasubba RaoVeerasamy & Co [AIR 1921 Mad 664],
wherein it was held that where in the course of a suit for
damages for breach of contract, the plaintiff contends
that there is a clerical error in the document embodying
the contract, it is not always necessary that a separate
suit should have been brought for rectification of the
document and it is open to the court in a proper case to
allow the plaintiff to amend the plaint and ask for the
necessary rectification. As noted herein earlier, the
learned counsel for the respondent contended before us
that the appellant could not get specific performance of
the contract for sale unless he sued for rectification of the
agreement for sale. We are unable to accept this
contention of the learned counsel for the respondent for
the simple reason that in this case, by filing the
application for amendment in the suit for specific
performance of the contract for sale, the appellant had
sought the rectification of the agreement also. It is
sufficient to observe that it was not necessary for the
appellant to file a separate suit for that purpose as
contended by the learned counsel for the respondent. It is
open to the appellant to claim the relief of rectification of
the instrument in the instant suit. The amendment, in our
view, in the agreement was a formal one and there was
no reason why such amendment could not be allowed."
11. Applying the principles of the aforementioned
judgment to the case on hand, what is sought to be amended by
the plaintiff in the agreement of sale is only with respect to the
mistake crept in the description of suit schedule property and
nothing else and in that view of the matter, I do not find force in
the submission made by the learned counsel appearing for the
petitioner. Accordingly, writ petitions are dismissed confirming
the impugned order dated 28th January, 2019, passed by the
trial Court.
Sd/-
JUDGE
lnn
