Karnataka High Court
Smt Gopamma vs V Lokesh on 10 June, 2024
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WP No. 10311 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.10311 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. GOPAMMA
W/O. LATE SHANKARAPPA
AGED ABOUT 65 YEARS
PRESENTLY RESIDING AT
NO.56, 1ST CROSS
MARAMMA TEMPLE STREET
SRIRAM LAYOUT, VIRGONAGAR POST
AVALAHALLI,
BENGALURU-560 049.
...PETITIONER
(BY SRI JAGADEESHA S.R., ADVOCATE)
Digitally
signed by V
MANJUSHA
BAI AND:
Location:
High Court 1. V. LOKESH
of Karnataka S/O SRI VENKATARAMAPPA
AGED ABOUT 41 YEARS
R/AT GATTAMADHAMANGALA
ROBERTSONPET HOBLI
BANGARPET TALUK (NOW KGF TALUK)
KOLAR DISTRICT-563 122.
2. SRI NAGARAJ
S/O LATE SHANKARE GOWDA
AGED 35 YEARS,
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WP No. 10311 of 2024
3. SURESH
S/O LATE SHANKARE GOWDA
AGED ABOUT 38 YEARS,
RESPONDENT NOS.2 & 3 ARE
RESIDING AT MINDAHALLI VILLAGE
TAYALUR HOBLI
MULABAGAL TALUK
KOLAR DISTRICT-563 102.
...RESPONDENTS
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE AN
IMPUGNED ORDER PASSED BY LEARNED ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC-KGF IN RESPECT OF I.A.NO.7 FILED BY
PETITIONER UNDER ORDER 6 RULE 17 READ WITH SECTION
151 OF CPC DATED 16.06.2023 IN O.S.NO.84/2016 VIDE
ANNEXURE-L CONSEQUENTLY ALLOWING I.A.NO.7 AS PRAYED
FOR AND SET ASIDE AN IMPUGNED ORDERS PASSED BY
LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND JMFC-KGF IN
RESPECT OF I.A.NO.8 FILED UNDER ORDER 14 RULE 5(1)
READ WITH SECTION 151 OF CPC AND I.A.NO.9 FILED UNDER
ORDER 6 RULE 17 OF CPC BOTH DATED 03.02.2024 IN
O.S.NO.84/2016 VIDE ANNEXURE-M AND N, ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 10311 of 2024
ORDER
1. Aggrieved by the order passed on I.A.No.8 filed
under Order XIV Rule 5 of Code of Civil Procedure, 1908
(CPC) and the order passed on I.A.No.9 filed under Order
VI Rule 17 of CPC both dated 03.02.2024 for amending
the plaint by the plaintiff, in O.S.No.84/2016 by the Court
of the Additional Senior Civil Judge & JMFC, KGF,
defendant No.1 therein has preferred this writ petition.
2. Respondent No.1 is the plaintiff in O.S.No.84/2016.
He has filed a suit for specific performance in respect of
the plaint schedule property with the following prayers:
"Wherefore it is prayed that this Honourable
Court may kindly be pleased to pass Judgment and
Decree in favour of the plaintiff and against the
Defendant:
(a) for Specific Performance of Sale Agreement
dated 24.06.2016 directing the defendants to
execute the Sale Deed in favour of the plaintiff
by receiving the balance of Sale consideration
of Rs.2,35,000/- AND ON DEFENDANT'S
FAILURE TO DO SO for execution of the Sale
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Deed in favour of the plaintiff through court
process;
b) consequentially directing the defendant to quit,
vacate and hand over vacant possession of the
schedule property to the plaintiff in pursuance
of the Sale Deed;
c) for court costs and such other reliefs the
plaintiff is entitled to from the hands of this
Honourable Court."
3. The petitioner / defendant No.1 has opposed the said
suit by filing the written statement and based on the
pleadings, the trial Court has framed the following issues:-
"1. Whether the Plaintiff proves that the Defendants
have executed agreement of sale dated 24.06.2016
in favour of Plaintiff and agreed to sell the suit
schedule property for total consideration amount of
Rs.5,35,000/- and received Rs.3,00,000/- as
advance sale consideration amount?
2. Whether the Plaintiff proves that he has always
ready and willing to perform his part of contract but
the Defendants are not ready and willing to perform
their part of contract?
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3. Whether the Defendant No.1 proves that the
plaintiff in collusion with Defendant No.2 and 3 has
created agreement of sale and filed the false suit?
4. Whether the Plaintiff is entitled for the relief of
specific performance of contract as sought for?
5. To What Order or Decree?"
4. In the course of the proceedings of the suit,
defendant No.1 based on an averment made in the plaint
by the plaintiff, filed an application under Order XIV Rule
5(1) read with Section 151 of CPC for framing the
following additional issue:-
"Whether the plaintiff prove that defendant No.1
acquired the suit schedule property under registered
gift deed as per MR No.20/91-92?"
5. The plaintiff made an application under Order VI Rule
17 of CPC with the following prayer:-
"For the reasons stated and sworn to in the
accompanying affidavit the applicant/plaintiff pray
that this Honourable Court may kindly be pleased to
pass orders permitting him to amend the plaint by
incorporating the appended portion in it and pass
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such other orders in the interest of justice and
equity."
6. The trial Court has rejected the application filed by
the petitioner / defendant No.1 and has allowed the
application filed by the respondent No.1 / plaintiff by way
of the impugned order. Aggrieved by the same, the
present writ petition is filed.
7. The case of the petitioner is that there is a specific
averment in the plaint as to how defendant No.1 became
the owner of the suit schedule property and hence, it is
required for the trial Court to frame a issue regarding the
same as pleaded by the defendant No.1 / petitioner
herein. But the trial Court unfortunately has rejected his
application. He further submits that allowing the
amendment as sought for by the plaintiff is also erroneous
because the case is now posted for arguments and at a
belated stage, the amendment is made.
8. The suit is filed by the plaintiff for specific
performance of an agreement alleged to have been
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entered into between the plaintiff and defendant No.1,
wherein defendant No.1 has agreed to sell the plaint
schedule property in favour of the plaintiff. In the course
of the proceedings, the plaintiff might have made a
statement in the plaint as to how defendant No.1 became
the owner of the property. It is not denied by defendant
No.1 / petitioner herein that she is not the owner of the
property. It is immaterial to decide the dispute on hand,
to answer the question as to how the petitioner herein has
become the owner of the property. The issue to be
answered in the original suit is whether the plaintiff and
defendant No.1 therein entered an agreement of sale as
alleged by the plaintiff and whether the plaintiff is entitled
for specific performance of the contract. In this regard,
the additional issue suggested by the petitioner herein
need not be framed. For that reason, I do not see any
error in the order passed by the trial Court, though there
are certain grammatical and clerical mistakes in the
impugned order passed on I.A.No.8 wherein the term
'plaintiff' is used instead of 'defendant No.1'.
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9. Insofar as it relates to amendment sought for by the
plaintiff, the plaintiff instead of the word 'Registered gift
deed' has sought it to be replaced by the word 'gift'. The
said amendment has to be considered only as correcting a
clerical mistake in the plaint averments and does not have
the character of changing the nature of the suit and it
does not warrant a re-trial to be done by the trial Court by
framing any additional issues and it does not cause any
prejudice to any of the parties concerned. Under the said
circumstances, I do not see any error in the order passed
by the trial Court in allowing the amendment application.
10. For the aforementioned reasons, I do not see any
merit in the case and the writ petition is accordingly,
dismissed.
Sd/-
JUDGE
VMB
