Karnataka High Court
Sri Papanna vs Sri K Tyagaraju on 8 November, 2024
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NC: 2024:KHC:45420
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.-4-
NC: 2024:KHC:45420 WP No. 35214 of 2018
(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 -5- NC: 2024:KHC:45420 WP No. 35214 of 2018 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 -6- NC: 2024:KHC:45420 WP No. 35214 of 2018 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 -7- NC: 2024:KHC:45420 WP No. 35214 of 2018 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 -9- NC: 2024:KHC:45420 WP No. 35214 of 2018 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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NC: 2024:KHC:45420 WP No. 35214 of 2018 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 List No.: 1 Sl No.: 53