Karnataka High Court
Sri Papanna vs Sri K Tyagaraju on 8 November, 2024
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WP No. 35214 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 35214 OF 2018 (GM-CPC)
BETWEEN:
1. SRI. PAPANNA
S/O LATE MUNISWAMY,
AGED ABOUT 59 YEARS,
R/O KODICHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560068.
2. SRI. MUNIYELLAPPA
S/O LATE MUNISWAMY,
AGED ABOUT 59 YEARS,
R/O KODICHIKKANAHALLI,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560068.
...PETITIONERS
(BY SRI. MADHUKAR DESHPANDE, ADVOCATE FOR P1
Digitally
signed by SRI. SANTHOSH SHETTY, ADVOCCATE P2)
SUMA
Location: AND:
HIGH
COURT OF 1. SRI. K. TYAGARAJU
KARNATAKA
S/O K. RAGHAVA RAJU,
AGED ABOUT 57 YEARS,
R/O NO.26/6, KODICHIKKANAHALLI,
BILEKAHALLY POST,
BANGALORE-560076
2. SRI. H. VISHWANATH
S/O VENKATARAMANAPPA,
AGED ABOUT 57 YEARS,
R/O NO.30, 18TH MAIN, 5TH CROSS,
KODIHALLY, H.A.L. 2ND STAGE,
BANGALORE-560017.
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WP No. 35214 of 2018
3. SMT. JAYAMMA
AGED ABOUT 64 YEARS,
W/O VENKATASWAMY,
D/O LATE MUNISWAMAPPA,
R/O KODICHIKKANAHALLI,
ROTARY NAGAR,
BANGALORE SOUTH TALUK,
BANGALORE-560068.
4. SMT. MUNIYAMMA
AGED ABOUT 59 YEARS,
W/O KRISHNAPPA,
D/O LATE MUNISWAMAPPA,
R/O KODICHIKKANAHALLI,
ROTARY NAGAR,
BANGALORE SOUTH TALUK,
BANGALORE-560068.
...RESPONDENTS
(BY SRI. MADHUSUDHAN AROA, ADVOCATE FOR RESPONDENT
NOS.3 AND 4;
SRI. PRABHU RAO C.B., ADVOCATE FOR RESPONDENT NO.2;
NOTICE SERVED ON RESPONDENT NO.1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN
O.S.NO.4129/2002 ON THE FILE OF III ADDITIONAL CITY CIVIL AND
SESSION JUDGE, BENGALURU (CCH-25) AND SET ASIDE THE
ORDERS DATED 10.07.2018 PASSED BY THE III ADDTIONAL CITY
CIVIL AND SESSION JUDGE BENGALURUE (ANNEXURE-F) AND
PERMIT THE PETITIONERS TO AMEND THE PLAINT BY ALLOWING
I.A.NO.20 (ANNEXURE-E) FILED BY THE PETITIONERS.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
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WP No. 35214 of 2018
ORAL ORDER
The plaintiffs in O.S.No.4129/2002 pending trial before
the III Additional City Civil and Sessions Judge, Bengaluru
(henceforth referred to as 'Trial Court') have filed this petition
challenging an order dated 10.07.2018 by which, an application
(I.A.No.20) filed by them under Order VI Rule 17 read with
Section 151 of the Code of Civil Procedure, 1908 (henceforth
referred to as 'CPC') was rejected.
2. The parties shall henceforth be referred to as they
were arrayed before the Trial Court. The petitioners herein
were the plaintiffs while the respondents were the defendants
before the Trial Court.
3. A suit in O.S.No.4129/2002 was filed for the
following reliefs:-
(a) To declare that the sale deed dated 16/5/1998
bearing registration No.1268/98-99, 23/5/1998
registered in the office of the Sub-Registrar
Bangalore south executed by the plaintiffs in
favour of defendants is without paying full sale
consideration and consequently to set aside the
sale.
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(b) To restrain the defendants, their agents, their
servants or anybody acting on their behalf from
interfering with plaintiffs peaceful possession
and enjoyment of suit schedule property by
decree of permanent injunction in favour of
plaintiffs.
(c) To decree the suit with cost and such other
reliefs as this Honourable Court deems fit in the
interest of justice and equity.
4. The suit was contested by the defendant Nos.1 and
2 by filing separate written statements.
5. When the suit was set down for cross-examination
of DW.3, the plaintiffs filed an application (I.A.No.20) under
Order VI Rule 17 read with Section 151 of CPC to incorporate
the following:-
"PARA 3(a): The plaintiffs submit that
after execution of the sale deed, when the plaintiffs
have demanded for the balance sale consideration
amount, the 2nd defendant started telling that some
close associate of the 1st defendant informed that
there is a road problem and if there is no road
problem they will make the payment. If there is
road problem then the schedule property is of no use
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to them. The plaintiffs submits that the plaintiffs
came to know about the first defendant from 2nd
defendant and whenever the plaintiffs asked the 2nd
defendant to make the payment he used to tell that
there is a road problem, but he had not gave any
authentic documents to show that there is a road
problem and whenever the plaintiffs asked the 2nd
defendant he used to inform the plaintiffs that he is
searching for the said document, but he had not able
to secure it. The plaintiffs submits that since the 2nd
defendant had alleged there is a road problem, the
plaintiffs tried their best to secure the authenticated
information, but they failed to do so. The plaintiffs
submits that whenever the plaintiffs demanded for
balance sale consideration amount, the second
defendant used to tell the plaintiffs that why you are
bothering about money when you are in possession
of the schedule property and when we are going to
put up construction any how we have to come to
you.
3(b) The plaintiffs submits that, the actual
sale consideration amount prevailing in the
surrounding area of the schedule property is much
more than that of the sale consideration amount
agreed to be paid by the defendants 1 and 2. The
plaintiffs submits that the 2nd defendant who is very
known the family of the plaintiffs informed and
promised that usually he used to give one flat free of
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cost to the land owners after construction of the
apartment building and accordingly he assured that
he will give one flat to the plaintiffs after construction
of the apartment building in the schedule property
free of cost. The plaintiffs submits that, however,
the defendants 1 and 2 neither paid the agreed sale
consideration nor the consideration amount
mentioned in the sale deed and they have not at all
keep up with their assurances given at the time of
execution of the sale deed."
6. The Trial Court after considering the averments
made in the plaint as well as the stage of the suit, held that the
application (I.A.No.20) filed under Order VI Rule 17 read with
Section 151 of CPC was highly belated and was filed when the
trial in the suit was closed. It held that allowing the application
would throw up further issues and result in a fresh trial.
Consequently, it rejected the application in terms of the
impugned order.
7. Being aggrieved by the said order, the plaintiffs are
before this Court in this writ petition.
8. The learned counsel for the plaintiffs submitted that
the amendment sought for was though belated, did not change
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the nature of the suit nor the cause of action and no admission
in favour of the defendants was sought to be withdrawn. He
contends that no prejudice would be caused to the defendants,
if the application was allowed. He contends that what is sought
to be brought on record by way of amendment, is a fact which
was admitted by DW.3. He therefore, contends that the Trial
Court must have considered the application leniently.
9. The learned counsel for defendant No.2 contended
that the application is filed at a belated stage. He contends that
the amendment sought for is not necessary to decide the suit.
He also contends that the plaintiffs did not mention why the
amendment was not sought for before issues were framed even
though plaintiffs knew these facts. Besides, he contends that
allowing the application would turn the clock back and
therefore, prays that the impugned order be upheld.
10. The learned counsel for defendant Nos.3 and 4
adopted the contentions of the learned counsel for the
defendant No.2.
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11. I have considered the submissions of the learned
counsel for the plaintiffs as well as the learned counsel for the
defendant No.2 and learned counsel for defendant Nos.3 and 4.
12. The suit was filed for declaration that the sale deed
dated 16.05.1998 executed by the plaintiffs in favour of
defendant Nos.1 and 2 was without consideration and to
restrain the defendants from interfering with the plaintiffs'
peaceful possession and enjoyment of the suit schedule
property. The plaintiffs have claimed that they had sold the
suit property to the defendant Nos.1 and 2 in terms of the sale
deeds dated 16.05.1998. They alleged that the defendant
Nos.1 and 2 did not pay the full consideration. They contended
that despite demands, the defendant Nos.1 and 2 did not pay
consideration, which compelled the plaintiffs to seek for the
relief of declaration. The plaintiffs did not plead that the reason
for the defendants not paying the agreed sale consideration
was a "road problem" which afflicted the suit property.
13. The defendant Nos.1 and 2 denied the claim of the
plaintiffs in their written statements. They contended that the
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sale consideration that was agreed upon was a sum of
Rs.4,50,000/- and not Rs.7,00,000/- as alleged.
14. Based on these contentions, the suit was set down
for trial. In the chief examination, the plaintiffs did not
mention anything about the defendant Nos.1 and 2 refusing to
pay full consideration on account of "road problem". This was
not even the case suggested to the defendant No.1 or
defendant No.2 in their cross-examination. DW.3 during the
course of cross-examination referred to some "road problem".
The plaintiffs taking cue from the said evidence adduced by
DW.3, has filed the instant application to justify why the
defendants did not pay the full consideration. A perusal of the
pleading that is sought to be brought on record by way of
amendment indicates that the plaintiffs were aware at the time
of filing of the suit that the defendants refused to pay full
consideration in view of "road problem". No reasons are
mentioned as to why the plaintiffs did not plead it in the plaint
or to seek amendment at the earliest point in time. This
amendment, in the opinion of this Court, is unnecessary to
determine the suit, as the plaintiffs are only bound to establish
that the agreed sale consideration was not paid. Though the
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amendment does not change the nature of the suit or cause of
action but amendment if allowed, would definitely result in
reopening the case for adducing evidence and thereby protract
the suit. In that view of the matter, since the plaintiffs have
not exercised caution at the time of filing the suit but have
woken up at the time of cross-examination of DW.3 to seek for
an amendment, they are not entitled to seek the said relief.
15. Consequently, this writ petition lacks merit and is
dismissed.
16. However, it is open for the plaintiffs to raise this as
a ground in an appeal that may be filed against any judgment
that may be passed by the Trial Court.
Sd/-
(R. NATARAJ)
JUDGE
PMR
