Karnataka High Court
Mrs. Linet Lobo vs Commissioner Bruhath Mahanagar Palike on 20 September, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION No.18380 OF 2021 (GM-CPC)
BETWEEN:
1. Mrs.Linet Lobo,
Aged about 56 years,
D/o late Kolandai Swamy,
W/o Normon Lobo,
R/o No.134, 7th Cross,
Williams Town,
Bangalore-46.
2. Mr.Jude Tellis,
Aged about 52 years,
S/o late Kolandai Swamy,
Scindia Garden,
Flat No.G-1, 11th Cross,
Sadashiva Temple Road,
Kammanahalli Main Road,
Bangalore-3. .. Petitioners
( By Sri Mohd. Usman Shaikh, Advocate )
AND:
1. Commissioner,
Bruhath Mahanagar Palike,
Office of the Bruhath Mahanagar Palike,
Hudson Circle,
Bangalore-560 001.
W.P.No.18380/2021
2
2. Assistant Commissioner,
East Division,
Bruhath Mahanagar Palike,
Queen's Road,
Bangalore-560 002.
3. X John Briato,
S/o late Xavier,
Aged about 61 years,
No.73, 3rd Cross,
Vannarpet Layout, Viveknagar,
Bangalore-560 047.
4. X Wilfred,
S/o late Xavier,
Aged about 71 years,
No.73, 3rd Cross,
Vannarpet Layout, Viveknagar,
Bangalore-560 047.
5. Mrs.Shamsia
Aged about 44 years,
W/o Mr.Anwar Sharieff,
No.47, Stephen's Road,
Frazer Town,
Bangalore-560 005.
6. Mr.Bennet Tellis,
Aged about 62 years,
S/o late Kolandaiswamy,
Spark Correspondence Institute,
No.37, 3rd Floor, 10th Cross,
Lakshmaiah P.B.I Road,
Next to C.B.I. Road, Ganganagar,
Bangalore-24.
7. Mrs. Loo Tellis V.,
Aged about 60 years,
D/o late Kolandaiswamy,
W.P.No.18380/2021
3
C/o Victor Stanley,
"Maria Kripa", ITC 3rd Cross,
Kammanahalli Main Road,
Bangalore-560 043.
8. Sr.Rita Tellis
Aged about 58 years,
D/o late Kolandaiswamy,
R/o No.134, 7th Cross,
Williams Town,
Bangalore-46.
9. Mrs. Patricia Cardoza,
Aged about 54 years,
D/o late Kolandaiswamy,
R/o No.100, 7th Cross,
Williams Town Extension,
Bangalore-46.
10. Mr. Jerald Tellis,
Aged about 51 years,
S/o late Kolandaiswamy,
R/o Flat No.302, G.M.Nilaya,
No.5, Ramesh Kumar Road,
R.S.Palya,
Bangalore-560 003.
11. Mrs. Beena Tellis,
Aged about 49 years,
D/o late Kolandaiswamy,
R/o 1st Cross, No.3,
Williams Town,
Bangalore-46.
12. Mr.Godwin Tellis
Aged about 46 years,
S/o late Kolandaiswamy,
Emirates Techno Casting LLC,
Ajman U.A.E., Post Box-2895,
W.P.No.18380/2021
4
Permanent resident of
R/o No.134, 7th Cross,
Williams Town,
Bangalore-46. .. Respondents
( By Sri C.Shankar Reddy, Advocate for R-5,
Sri N.R.Jagadeeswara, Advocate for R-1 & R-2
and vide order dated 27.10.2021, notice to R-3,
R-4, R-6 to R-12 stands waived)
This Writ Petition is filed under Articles 226 and 227 of
Constitution of India praying to set aside the impugned order
dated 23.09.2021 passed in O.S.No.7805/2009 by the Hon'ble
XII Addl.City Civil Court Judge at Bangalore, on the application
filed under Section 22 of Specific Relief Act read with Order VI
Rule 17 of the Code of Civil Procedure produced at Annexure-A.
This Writ Petition coming on for Preliminary Hearing in `B'
group this day, the Court made the following :
ORDER
The legal representatives of deceased plaintiff in O.S.No.7805/2009, pending on the file of learned XII Addl.City Civil & Sessions Judge, Bengaluru City, (for short `trial Court'), have filed this writ petition challenging the correctness of the order dated 23.09.2021, by which their application-I.A.No.25 filed under Section 22 of the Specific Relief Act, 1963 read with Order VI Rule 17 of CPC, was rejected.
W.P.No.18380/20215
2. The suit in O.S.No.7805/2009 was filed for specific performance of an agreement of Lease-cum-Sale dated 17.07.2003, executed in favour of the deceased plaintiff. The plaintiffs contended that the Deputy Commissioner of BBMP had cancelled the Lease-cum-Sale Agreement dated 17.07.2003. The plaintiffs claim that the Lease-cum-Sale Agreement could not have been cancelled unilaterally. With these and other averments, the plaintiffs sought for a direction to defendant No.2 to treat the plaintiff as a Lessee as per the Lease-cum-Sale Agreement dated 17.07.2003 and to direct defendant No.2 to execute the Sale Deed in favour of the plaintiffs and consequently to hold that the Sale Deed dated 28.08.2007 executed by the defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 and the Sale Deed dated 11.02.2008 executed in favour of defendant No.5, as not binding upon the plaintiffs.
3. The suit was contested by defendant No.5 alone. Long after the case was listed for addressing the arguments W.P.No.18380/2021 6 on the main suit, an application was filed by the plaintiffs under Section 22 of Specific Relief Act read with Order VI Rule 17 of CPC, to amend the plaint relief to introduce the following additional prayer :
" Holding that order passed by the authorities of the defendant No.1 on 02/03/2009 to the effect that they have cancelled the agreement of sale dated 17/07/2003 executed in favour of the plaintiff, as nullity."
The said application was rejected in terms of the order dated 23.09.2021 on the ground that the said application was filed belatedly and that it did not lie within the limits of Section 22 of the Specific Relief Act. Being aggrieved by the said order, the legal representatives of deceased plaintiff have filed this writ petition.
4. The learned counsel for the petitioners submits that the relief sought for by way of an amendment was already found in the plaint averments and it was for the Court to exercise power under Order VII Rule 7 of CPC by moulding W.P.No.18380/2021 7 the relief. He submits that the relief sought to be inserted by way of amendment was merely consequential and would not prejudice the rights of the defendants or change the nature of the suit or the cause of action for the suit. He submitted that the plaintiffs would not lead any further evidence on the amended relief and therefore, the application may be allowed.
5. Per contra, learned counsel for the defendants submitted that the application is filed belatedly, that too, at the stage when the case was listed for arguments and therefore, no indulgence be shown to allow such a belated claim. They further submitted that the application filed under Section 22 of the Specific Relief Act is a clear misuse of the provisions of law since Section 22 of the Specific Relief Act does not permit a relief to be claimed.
6. I have considered the submissions made by learned counsel from both side.
W.P.No.18380/20218
7. As rightly contended by the learned counsel for the petitioners/plaintiffs, the basis for the amendment is already found in the plaint averments and therefore, it was always open for the Court to mould the relief in the event of Court finding that the plaintiff is entitled to the relief sought for. Be that as it may, the plaintiffs who were aware of the order passed by the Deputy Commissioner, BBMP, were bound to seek for appropriate relief at the time when the suit is filed. They cannot sleep over their rights and cannot make a request for amendment of the plaint relief at the fag end of the proceedings. However, having regard to the undertaking of the plaintiffs that no additional evidence would be adduced and that the amendment may be given effect to from the date of its filing, this Court, in the ends of justice, considers it appropriate to allow this application as that would not in any way prejudice the rights of the defendants in the suit.
In that view of the matter, the Writ Petition is allowed. The impugned order dated 23.09.2021, passed by the W.P.No.18380/2021 9 learned XII Addl.Civil Civil and Sessions Judge, Bengaluru City, on IA.No.25, in O.S.No.7805/2009, is set aside. IA.No.25 filed by the plaintiffs under Section 22 of the Specific Relief Act read with Order VI Rule 17 of CPC, is allowed.
It is made clear that the plaintiffs shall not be entitled to lead any further evidence on the amended reliefs. The amendment shall be given effect to from the date of its filing and shall not relate back to the date of the suit.
In view of the fact that the suit is filed in the year 2009, the trial Court is requested to dispose of the suit expeditiously, which shall not be later than six months from the date of receipt of certified copy of this order.
Sd/-
JUDGE bk/