Karnataka High Court
Mumtazunissa vs The Karnataka Govt. Employees on 31 July, 2018
Author: S G Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.1065 OF 2017 (GM-CPC)
BETWEEN:
1. MUMTAZUNISSA
AGED 48 YEARS,
2. SRI. AFIZULA REHMAN
AGED 22 YEARS,
3. SRI.SHAFIQ REHMAN KHAN
AGED 20 YEARS,
THE 1ST IS WIDOW AND 2 & 3 PETITIONER
ARE SONS OF LATE ABDUL RAKEEB & ALL
ARE R/AT; NO.84/3b, DASAPPA GARDEN,
OPP. MUNESHWAR TEMPLE, CHAMUNDI NAGAR,
NEAR R.T.NAGAR,
BENGALURU-560 032. ... PETITIONERS
(BY SRI.SHAMS AHMED PATHAN, ADV.)
AND:
1. THE KARNATAKA GOVT. EMPLOYEES
HOUSING BUILDING CO-OPERATIVE LTD,
CELLART FLOOR, M.S.BUILDING VIDHANA
VEEDHI, BENGALURU-560 001
REPRESENTED BY ITS PRESIDENT
2
2. SRI. G.R. RAMESH
S/O G.N.RAGHUNATH,
AGED 42 YEARS,
R/AT NO.32, 6TH CROSS,
RMV-II STAGE,
BENGALURU-560 094.
3. SMT. VIJAYLAXMI
AGED 53 YEARS,
4. SRI.S.KRISHNAMURTHY
AGED 30 YEARS,
RESPONDENT NO.3 IS WIFE AND NO.4
IS SON OF R.SHANKAR
BOTH R/AT; NO.6/58,
1ST MAIN ROAD,
AZAD NAGAR,
CHAMRAJPET,
BENGALURU-560 018. ... RESPONDENTS
(BY SRI.M.S.JITHENDRA, ADV. FOR R1
SRI. HEMACHANDRA RAI, ADV. FOR R2
SRI. K.SUMAN, ADV. FOR R3 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 27.10.2016 PASSED ON I.A. XV IN
O.S.6609/2005 BY THE X ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE BENGALURU AT ANNEXURE-A. AND
ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
Petitioners are before this Court challenging the order dated 27-10-2016 passed on I.A.No.15 in O.S.No.6609/2005 on the file of the Additional City Civil and Sessions Judge, Bangalore.
2. Petitioners are legal representatives of defendant No.2(a) and respondent No.2 is plaintiff No.2; respondents 3 and 4 are the legal representatives of the first plaintiff in O.S.No.6609/2005 originally filed for mandatory injunction against the first defendant directing the first defendant to re- allot the schedule site and in turn execute the absolute sale deed in respect of the suit schedule site in favour of the plaintiffs by declaring the registered sale deed dated 10-07-2003 executed in favour of the second defendant with respect to the schedule site is not binding on the plaintiffs and the same is null and void ab-initio. The defendants filed their written statement and the trial is yet to commence in the suit. At that stage, the plaintiff filed an application under 4 Order VI Rule 17 of CPC to amend the plaint to correct the typographical error with regard to age of the first plaintiff and to include one more prayer to declare the gift deed dated 02-03-2005 executed by the second defendant in favour of Mumtazunnissa is not binding on the plaintiff. It is averred in the affidavit that due to typographical mistake, the age of the original plaintiff was wrongly mentioned as 35 years instead of 67 years. It is also stated that the amendment with regard to consequential prayer would not affect the defendants in any way. The defendants resisted the said application by filing the objections, wherein they have contended that, with regard to amendment of age, the defendants have taken a specific contention in paragraph 4 of the written statement that the plaintiff No.1 was alive when the late defendant filed the written statement which was filed in the year 2007 itself. But the amendment application is filed at this belated stage i.e., after lapse of 11 years. Further, with regard to inclusion of additional prayer, it is submitted that the said prayer is also belatedly sought, 5 wherein the plaintiffs were aware of execution of gift deed and that the katha and BBMP records stand in the name of the defendants. The trial Court by its order dated 27-10-2016 allowed the application permitting the plaintiff to amend the plaint which is impugned in the present writ petition.
3. Heard the learned counsel for the petitioners as well as the respondents and perused the writ papers.
4. Learned counsel for the petitioners submits that the order passed on 27-10-2016 is without hearing the defendants and trial Court has not considered the objections filed by the defendants to the amendment application. It is their further contention that the application is filed belatedly and the plaintiffs were aware of the fact of execution of gift deed as on the date of filing of the suit. At this stage, it cannot be averred that they are not aware of the execution of the gift deed. Further, it is the contention of the petitioners that records stand in their name and the plaintiffs cannot contend that they are not aware of the fact that properties 6 stand in their names and prayed that the amendment could not be allowed at that stage of the proceedings. Learned counsel for the petitioner relies upon the judgments reported in AIR 1998 RAJASTAN 227 in the case of VAIDHYA SHYAM SUNDER JOSHI v/s JAIN VISHWA BHARTI LADNU AND OTHER and AIR 1961 KERALA 110 in the case of KRISHNASWAMY IYER v/s OUSEPH MATHAI.
5. Per contra, learned counsel appearing for the respondents/plaintiffs submits that the amendment was allowed by an order dated 27-10-2016 and subsequently by an order dated 28-11-2016, the Court has taken the additional written statement of the legal representatives of defendant No.2 as not filed and that order is not challenged. Further it is the contention of the respondents that the amendment sought with regard to age, it is only typographical error, instead of mentioning 67 years, it is mentioned as 35 years in the plaint. With regard to adding of prayer, it is his submission that the amendment does not change the nature 7 of the suit and it does not introduce new cause of action. The fact of execution of gift deed came to the knowledge of the plaintiffs only in the evidence in O.S.No.2191/2006, wherein both of them are parties to the said suit. On 19-01-2016, when the evidence was recorded, it disclosed the fact of execution of the gift deed dated 02-03-2005 and immediately thereafter, they have taken steps to file the amendment application. Learned counsel for the respondents No.3 and 4 relies upon a judgment of the Hon'ble Supreme Court in (2004) 6 SCC 415 in the case of PANKAJA AND ANOTHER v/s YELLAPPA (DEAD) BY LRs. AND OTHERS to contend that the amendment is to be allowed with a view to minimize the litigation and therefore, prays for dismissal of the writ petition.
6. The suit is one for declaration that the plaintiffs are entitled to suit schedule property and for mandatory injunction in respect of the suit schedule property. The plaintiff filed an application under order VI Rule 17 of CPC 8 instead of 67 years which according to the plaintiffs is a typographical error. Since it is a typographical error, the amendment allowed in that regard is proper and correct. With regard to adding of the prayer to declare that the gift deed dated 02-03-2005 as null and void ab-initio, it is the contention of the plaintiffs that they were not aware of the same till the evidence is adduced in OS.No.2191/2006 wherein both of them are parties. The said evidence is recorded on 19-01-2016 and immediately thereafter, they have filed an application for amendment. The amendment sought to add that prayer is a consequential relief in the suit and it would not change the nature of the suit. As submitted by the learned counsel for both the parties, the trial has not yet been commenced in the suit. The purpose of allowing the amendment is to minimize the litigation and to avoid multiplicity of proceedings. The decision relied upon by the parties would not help them, as the case on hand is pre-trial amendment. In the instant case, the trial Court has rightly allowed the amendment application filed by the plaintiffs and 9 has not committed any error or illegality in allowing the application. No prejudice would be caused to the defendants, if the amendment is allowed. The defendants are at liberty to file additional written statement even though the trial Court has taken that the additional written statement of the legal representatives of defendant No.2 as not filed. Counsel for the petitioners undertakes that they would file the additional written statement, if they are given four weeks time to file additional written statement. As prayed by the petitioners four weeks time is granted from the date of the order to file additional written statement.
7. With the above observations, the writ petition is disposed of.
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JUDGE mpk/-* CT:SK