Karnataka High Court
Sri Manjunath M vs Smt. Soubhagya on 21 March, 2017
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WP No.31705/2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE H.G.RAMESH
WRIT PETITION NO.31705/2013 (GM-CPC)
BETWEEN:
SRI MANJUNATH.M
S/O. LATE SRI MURUGESH
AGED ABOUT 58 YEARS
R/AT SY.NO.130
OPPOSITE P.E.S COLLEGE OF I.T.
100 FEET ROAD, B.S.K. 3RD STAGE
BANGALORE- 560 085 ...PETITIONER
(BY SRI K.SHIVAJI RAO, ADVOCATE)
AND:
SMT.SOUBHAGYA
W/O. SRI KUMARAPPA
AGED ABOUT 48 YEARS
R/AT GOVERNMENT SCHOOL MAIN ROAD
6TH MAIN, VEERABHADRANAGAR
OPPOSITE P.E.S. COLLEGE OF I.T
100 FEET ROAD, B.S.K. 3RD STAGE
BANGALORE- 560 085 ...RESPONDENT
(NOTICE HELD SUFFICIENT V/C/ORDER DATED 26.07.2016)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 29.06.2013 PASSED ON IA NO.3 IN
OS.NO.5058/2007 PRODUCED AT ANNEXURE-D
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No.31705/2013
ORDER
H.G.RAMESH, J. (Oral):
1. This writ petition is by the plaintiff and is directed against an interlocutory order dated 29.06.2013 passed by the trial Court whereby it has dismissed the petitioner's application-I.A.3 filed under Order 6 Rule 17 of CPC for amendment of the plaint in the suit in O.S.No.5058/2007.
2. Heard. Perused the impugned order. It is relevant to refer to the following reasoning of the trial Court in the impugned order in dismissing the application:
"8. With the presentation of written statement, as long back as 9.7.2008, denying both the plaintiff's title to and possession over the schedule property, there need not be any hesitation in saying that with it, the right to sue the defendant for declaratory and possessary relief had accrued to the plaintiff on 9.7.2008 itself. As such, I have to say that the declaratory relief sought to be incorporated by way of amendment is barred by limitation and as such, the proposed amendment cannot be allowed.
9. Even there is no reason assigned by the plaintiff as to why he could not make the application within the period of limitation. On the other hand, the one and only reason assigned is that by oversight the relief of declaration and possession is omitted. I am afraid, it cannot be accepted, for the plaintiff could not have turned a blind eye to the omission of the same for over 6 long years. On the other hand, the 1st issue framed must have driven the plaintiff file the application on hand. But it is too late in the light of the day for him to reconcile with the situation brought about by himself. In view of this, I need not be hesitant to say that the application cannot be granted. Even then, the learned counsel for the petitioner contended that he came on -3- WP No.31705/2013 record only recently and after verification, he found the omission and soon thereafter, the application was filed. On facts, I cannot accept his contention, for he filed vakalath for the plaintiff on 16.9.2011 with no objections. But he did not advise the plaintiff amend his plaint suitably. Even otherwise, even if an application had been filed soon after 16.9.2011, it has to be said that it was after the period of limitation. In the result, I proceed to pass the following:-
ORDER I.A.3 is dismissed with no order as to costs."
3. I find no error in the above reasoning of the trial Court to warrant interference with the impugned order. The writ petition is accordingly dismissed.
Petition dismissed.
Sd/-
JUDGE KSR