Karnataka High Court
P. S. Raju vs R. Paparaju on 5 June, 2024
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WP No. 21381 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 21381 OF 2022 (GM-CPC)
BETWEEN:
P.S.RAJU
S/O. LATE PAPAIAH,
AGED ABOUT 67 YEARS,
R/O NO. 270, NIRMALA NAGAR,
MYLASANDRA VILLAGE,
BEGURU HOBLI,
BENGALURU SOUTH TALUK,
PIN CODE-560 068.
...PETITIONER
(BY SRI.MURALIDHAR S.R., ADVOCATE)
AND:
1. R. PAPARAJU
S/O. LATE RAYAPPA,
AGED ABOUT 56 YEARS,
Digitally R/AT MYLASANDRA VILLAGE,
signed by BEGURU HOBLI,
SUVARNA T BENGALURU SOUTH TALUK,
PIN CODE-560 068.
Location:
HIGH
2. FATHIMA MARY
COURT OF
KARNATAKA S/O. LATE JOSEPH,
AGED ABOUT 68 YEARS,
3. J. DOMNIC
S/O. LATE JOSEPH,
AGED ABOUT 40 YEARS,
4. J. JOHN SABASTIN
S/O. LATE JOSEPH,
AGED ABOUT 31 YEARS,
RESPONDENTS 2 TO 4 ARE
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WP No. 21381 of 2022
R/AT NO. 19, BANK AVENUE EXTENSION,
HORAMAVU,
AGRAHARA MAIN ROAD,
B.G. BALAJI LAYOUT,
BEHIND BALAJI CEMENT,
BENGALURU-560 043.
5. J. MARY
D/O. LATE JOSEPH,
AGED ABOUT 52 YEARS,
R/AT MR. ANTHONY RAJ.A
NO.12, 3RD B CROSS,
23RD MAIN ROAD,
BTM LAYOUT, 2ND STAGE,
BENGALURU-560 076.
6. J. LILY ALIAS NALINA
D/O. LATE JOSEPH,
AGED ABOUT 44 YEARS,
R/O. RUDAYA RAJ.C,
R/AT NO. 15, 1ST MAIN ROAD,
12TH CROSS, MARUTHI NAGAR,
BENGALURU-560 029.
7. J. CLARA
D/O. LATE JOSEPH,
AGED ABOUT 44 YEARS,
W/O. MR. ANAND. A,
R/O. NO.1433, NEAR CANARA BANK,
BEGUR MAIN ROAD,
BEGUR,
BENGALURU-560 068.
8. A. GREGORI
S/O. LATE JOSEPH,
AGED ABOUT 67 YEARS,
R/AT NO. 3406,
BEGUR VILLAGE,
BEGUR,
OPP. MERIDIAN LAYOUT,
DEVARA CHIKKANAHALLI ROAD,
BENGALURU-560 068.
...RESPONDENTS
(BY SRI. UDAY K.S., ADVOCATE)
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WP No. 21381 of 2022
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH OF THE IMPUGNED
ORDER DATED:12.09.2022 PASSED BY THE HONBLE VII ADDL.
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN
O.S.NO.1383/2006 IN APPLICATION FOR AMENDMENT OF WRITTEN
STATEMENT UNDER ORDER VI RULE 17 R.W SEC. 151 OF CPC VIDE
ANNEXURE-F AND TO ALLOW THE SAID APPLICATION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The writ petition is filed seeking following relief:
i) Issue a writ in the nature of certiorari quashing of the
impugned order dated 12.09.2022 passed by the Hon'ble VI
Addl. Senior Civil Judge, Bengaluru Rural District,
Bengaluru in O.S.No.1383/2006 in application for
amendment of written statement under Order VI Rule 17
r/w151 of CPC vide Annexure-F and to allow the said
application.
ii) Issue any other order or direction as this Hon'ble court
deems fit under the circumstances of the case in the
interest of justice and equity.
The petitioner herein is the defendant in the suit. He has
filed I.A. under Order VI Rule 17 of CPC seeking to amend to
the written statement by inserting paragraphs 15 to 29. The
said application is dismissed by the court below by order
impugned dated 12.09.2022.
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2. The respondent herein who is the plaintiff in the suit,
has filed the suit for declaration and injunction. In the said suit,
the defendant had filed his written statement on 03.03.2007.
Thereafter the court below had dismissed the suit by Judgment
and decree dated 23.09.2016. Aggrieved thereby the
respondent herein has preferred RA.No.189/2016 before the IX
Addl. District and Sessions Judge, Bengaluru Rural District. The
appellate court by setting aside the judgment & decree passed
by the court below by judgment dated 11.07.2019 and
remanded the matter to the court below. While remanding the
matter, the appellate court had observed that the trial court
had discussed some law which was not at all relevant and
necessary to decide the dispute particularly when the
defendants had filed the written statement and not contested
the suit. It was observed that, the learned judge instead of
drawing adverse inference against the defendants has drawn
against the plaintiff and in the opinion of the court, the
judgment and decree passed by the court below is not based
upon the proper appreciation of facts and as such interference
of the court is necessary. Further the court had directed the
court below to dispose of the matter within a period of six
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months from the date of appearance by affording an
opportunity to adduce additional oral evidence as well as
documentary evidence if any by both the parties and by
framing additional issues as observed in the body of the
judgment. While remanding the matter at Para 34 of the order
there is an observation that admittedly the defendants are not
disputing the title and possession of the plaintiff over suit
schedule property, at some point of time i.e., before the alleged
execution of agreement of sale, dated 07.04.1991 and alleged
general power of attorney pertaining to suit schedule property
in favour of defendant No.2. When the defendant No.1 has
contended that the plaintiff has transferred his right, title,
interest and possession over the suit schedule property
infavour of defendant No.2 either by way of executing
agreement of sale or by way of general power of attorney on
07.04.1991, the burden lies on him to prove the same. But the
defendant has not all produced the alleged agreement of sale
dated 07.04.1991 and alleged general power of attorney said to
have been executed by plaintiff in favour of defendant No.2
Therefore, the defendant No.1 has failed to discharge his
burden of proof. Moreover, the defendant No.2 who having
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appeared before the court through his counsel, not filed any
written statement and also not contested the suit for the
reasons best known to him and the court had imposed cost of
Rs.5,000/- which are payable to the plaintiff.
3. Now the present application came to be filed by the
defendant No.1 on 22.06.2022 seeking amendment of the
written statement by inserting the paragraphs 15 to 29. In
support of the said petition it is stated that advocate has not
taken the said stand while filing the earlier written statement
and certain documents are not in his possession, that's why he
could not file these documents. By virtue of this amendment or
the additional paragraphs, the defendant had stated that the
plaintiff is not at all in possession of the property and the
plaintiff is not the owner of the property and also has taken
several other stands.
4. The court below by order impugned has observed that
defendant by virtue of these amendments is introducing
altogether a new ground and it is not permissible to withdraw
original admission made in the pleadings. The learned judge
had relied on the judgment of the Hon'ble Apex Court, wherein
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the Apex Court has held that the amendment of written
statement is not permissible when the effect would be to
deprive the plaintiff of a valuable right already accrued to him.
Further held that the new case cannot be substituted in the
original pleadings. In this case the defendant by filing the
present application is trying to withdraw the admission in the
original statements. Further the court observed that after the
commencement of the trial, the parties cannot be permitted to
amend their pleadings unless and until they satisfy the court
that inspite of due diligence such amendments could not be
carried out and such pleadings could not be raised and
accordingly dismissed. The petition filed by the defendant
seeking amendment of the written statements.
5. Learned counsel for the petitioner/defendant submits
that certain documents were not in his possession of the
defendant and the earlier advocate has not taken these
pleadings before the court, as such he is constrained to file this
petition. It is submitted that even if this amendment is allowed
no prejudice would be caused to the plaintiff. If the pleadings
are not amended, it would cause irreparable loss to the
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defendant. The court below had dismissed the application more
on technicalities and the court ought to have seen that these
amendment of pleadings is verymuch in the interest of the
defendant.
6. Learned counsel for the respondent/plaintiff submits
that the defendant has filed written statement in the month of
March, 2007, and after that he has not contested the matter
and the suit came to be dismissed. The appellate court taking
into consideration the said aspect has imposed cost on the
defendant and remanded the matter. He submits that when
the matter was remanded by the Appellate Court on
11.07.2019, the present application came to filed on
22.06.2022. The grounds which are urged by the petitioner
cannot be a ground for allowing the said application. He
submits that the court below had rightly dismissed the
application observing that by virtue of this amendment, the
defendant is setting up altogether a new plea and now he is
denying the title of the plaintiff. It is submitted that the
observation of the Appellate Court at para 34 of the order
clearly shows that infact the defendant has admitted the title
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till the GPA is executed and now he cannot be permitted to
come up with altogether a new case and if the amendment is
allowed, it would set up altogether a new case and it would
cause prejudice to the plaintiff. The court below considering the
judgment of the Hon'ble Apex Court had rightly dismissed the
application and no grounds are made out seeking interference
with the well considered order passed by the court below.
7. Having heard the learned counsels on either side,
perused the entire material on record. The present application
is filed seeking amendment of the written statement. It is
appropriate to note that the suit is of the year 2016 and in
2022, the defendant has filed the application for amendment
of the written statement. When the suit is filed in the year
2006, he has filed he written statement in 2007. By that time,
all the documents, Sale Deed, GPA and all the transaction have
already taken place and no other transaction has taken place
subsequent to the filing of the original written statement.
Having filed the written statement he has not contested the suit
and the suit came to be dismissed. The Appellate Court had
taken note of the same and has imposed the cost and
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remanded the matter. When the matter was remanded in the
year 2019, what made the petitioner to keep quiet till 2022 is
not known. The reasons stated is that the earlier advocate has
not taken all these stands, definitely those are not the grounds
germane for allowing the application for amendment of
pleadings which is almost after 18 years from the date of the
filing of the suit. When once the trial has commenced and
parties want to amend the pleadings, they have to satisfy the
court, unless the court is satisfied that inspite of due diligence
these facts could not be brought to the notice of the court or
they could not place the facts before the court, amendment
cannot be allowed. The reasons that were stated by the
defendant and the material on record clearly discloses that any
of the transactions he has been referring in the pleadings has
not taken place subsequent to 2006. Even on that ground also,
the defendant/petitioner cannot be permitted to amend the
pleadings and the court below had rightly dismissed the petition
and this court finds no reasons to interfere. As a matter of
course parties cannot be permitted to amend the pleadings
without a justifiable reasons and with an inordinate delay of 18
years.
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8. Accordingly, the writ petition is dismissed. Pending
I.As., if any shall stand disposed of.
SD/-
JUDGE
TS
