Karnataka High Court
Sri B V Dayanand vs Sri B N Janardhana Reddy on 30 July, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 30TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.927 OF 2012(GM-CPC)
BETWEEN:
1. Sri B.V.Dayanand
S/o Sri B.P.Venkataswamy Reddy
Aged about 53 years
Resident of No.465/3
Situated at 36th Cross
19th Main Road, 4th T Block
Jayanagar, Bangalore - 560 041.
2. Sri N.Vijay Kumar
S/o Sri D.Neelappa Reddy
Aged about 50 years
Resident of No.314/2, 7th Cross,
Domlur Layout
Bangalore - 560 017. ...PETITIONERS
(By M/s.K.N.Dayalu Associates, Advocates)
2
AND:
Sri B.N.Janardhana Reddy
S/o Palyada Narayanappa
Aged about 39 years
Resident of Bellandur Village,
Varthur Hobli,
Bangalore South Taluk. ...RESPONDENT
(By Sri Ganesh N.M., Advocate)
*****
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to set aside the order
dated 17.11.2011 passed in I.A.No.IX in
O.S.No.1400/1996 pending on the file of the Additional
City Civil Judge, Bangalore i.e., Annexure-F to the writ
petition by dismissing IA.No.IX.
This Writ Petition coming on for preliminary hearing I
'B' group this day, the Court made the following:-
ORDER
The petitioners-plaintiffs filed a suit for specific performance in the year 1996. The respondent-defendant filed his written statement in the year 2004. In the year 2011 the application was filed by the respondent- 3 defendant under Order-6 Rule-17 of CPC seeking amendment of the written statement. By the impugned order the same was allowed. Hence, the present Petition by the plaintiff.
2. The learned counsel for the petitioner contends that the impugned order is bad in law and liable to be set aside. That there is an inordinate delay in seeking amendment to the written statement. That what is sought for in the written statement is totally a new case that is sought to be made out especially when the issues have been framed. On the other hand, the learned counsel for the respondents defends the impugned order.
3. On hearing learned counsels I'am of the considered view that the appropriate relief requires to be granted. The trial Court while allowing the amendment was of the view that the proposed amendment does not introduce a new case nor would it change the nature of the 4 defence taken up by the defendant. Therefore if the amendment is allowed no prejudice would be caused to the plaintiffs since the burden is on him to establish his case. On the question of delay the same cannot be a ground to refuse the amendment. Hence, the application was allowed.
4. On considering the reasons I'am of the considered view that the reasons assigned are unsustainable. I have considered the written statement as well as the proposed amendment. By virtue of the amendment new facts are sought to be pleaded. The fact of having entered into an agreement with one J.Rasaranjan on 25-2-1991 did not form part and parcel of the original written statement. The same is sought to be added herein. Further in the written statement the defendant has stated that the defendant admits to the agreement being entered into but, denies that the balance amount of Rs.23,500/- was paid. However, what is proposed in the 5 amendment is that no amount at all has been received by him under the agreement. The reliance placed on the Judgment of the Hon'ble Supreme Court in the case of B.K.N.PILLAI v.P.PILLAI AND ANOTHER reported in AIR 2000 SC 614 at para-5 is wholly inapplicable to the case herein. Therein it was held that the plea sought to be raised is neither inconsistent nor repugnant to the plea already raised in the defence. Under these circumstances, the amendment was allowed. However, the fact situation in the present case is different. It cannot be said that the proposed amendment is neither inconsistent nor repugnant. In fact it is. Under these circumstances, allowing the amendment would be wholly improper. Therefore, I'am of the considered view that the reasons assigned by the trial Court allowing the amendment that too 15 days after the original written statement was filed cannot be accepted. Consequently, the Petition is allowed. The order dated 17-11-2011 passed on IA.No.IX in O.S.No.1400/1996 by the Additional City Civil Judge, CCH 6 No.8, Bangalore, is set aside. The application seeking amendment of the written statement is rejected.
Sd/-
JUDGE Rsk/-