Karnataka High Court
O C Krishnappa vs Smt Asha Prakash on 14 March, 2017
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.8613/2017 (GM-CPC)
BETWEEN:
1. O.C. Krishnappa,
S/o. Late Chikkarangaiah,
Aged about 56 years,
2. Miss Lavanya,
D/o. O.C. Krishnappa,
Aged about 24 years,
3. Master Purushothama,
S/o. O.C. Krishnappa,
Aged about 23 years,
All are residents of Oorukere,
Kasaba Hobli, Tumakuru Taluk
and District-572 101.
... PETITIONERS
(By Sri. Ravishankar G., Adv.)
AND:
1. Smt. Asha Prakash,
W/o. L. Prakash,
Aged about 44 years,
Residing at Vinayaka Building,
Railway Station Road,
Tumkur City-572 101.
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2. Smt. Lakshmamma,
W/o. Late Chikkarangaiah,
Aged about 70 years,
3. Srirangaiah,
S/o. Late Chikkarangaiah,
Aged about 60 years,
4. Smt. Parvathamma,
D/o. Srirangaiah,
Aged about 33 years,
5. Rangaswamy,
S/o. Srirangaiah,
Aged about 25 years,
6. Jayanna,
S/o. Srirangaiah,
Aged about 20 years,
7. Smt. Shanthamma,
D/o. Late Chikkarangaiah,
Aged about 55 years,
8. Smt. Rajamma,
D/o. Late Chikkarangaiah,
Aged about 53 years,
9. Jagadheesh,
S/o. Late Chikkarangaiah,
Aged about 50 years,
10. Miss Ramya,
D/o. Jagadheesh,
Aged about 19 years,
11. Miss Amulya,
D/o. Jagadheesha,
Aged about 21 years,
12. Miss Akshaya,
D/o. Jagadheesha,
Aged about 22 years,
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13. Manjunatha,
S/o. Late Chikkarangaiah,
Aged about 48 years,
14. Miss Rajeshwari,
D/o. Manjunatha,
Aged about 20 years,
15. Master Raghu,
S/o. Manjunatha,
Aged about 19 years,
Respondent Nos.2 to 15 are residents of
Oorukere, Kasaba Hobli, Tumakuru
Taluk and District - 572 101.
... RESPONDENTS
(By Sri. Renukaradhya, Adv. for C/R-1, Notice to R-2 to R-15
dispensed with)
This Writ Petition is filed under Article 227 of the
Constitution of India praying to quash the Order dated
23.01.2017 passed by the Court of the Prl. Sr. Civil Judge at
Tumkur in O.S. No.303/2007 on the application filed by R-1
under Order 6 Rule 17 of CPC certified extract of the relevant
portion of the Order sheet is produced as Annexure-E, etc.,
This writ petition coming on for Preliminary Hearing
this day, the court made the following:
ORDER
The defendant Nos.5, 5 (a) and 5(b) have filed the present writ petition against the Order dated 23.01.2017 on I.A., allowing the application filed by the plaintiff under Order 6 Rule 17 of Code of Civil Procedure, to amend the plaint.
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2. The 1st respondent who is the plaintiff before the trial court filed O.S. No.303/2007 to direct the defendants to execute sale deed in favour of the plaintiff as per the terms of the registered sale agreement in respect of the suit schedule property accepting the balance sale consideration amount and directing the defendants to execute the registered sale deed within specific time failing which the sale deed be executed and registered according to the provisions of Order 21 Rule 34 (4) of Code of Civil Procedure, contending that the suit schedule property bearing Sy.No.72/1 of Arekere Village, Kasaba Hobli, Tumakuru Taluk and District was purchased by the 1st defendant, under a registered sale deed dated 25.11.1995 and the Defendant No.1 was in possession and enjoyment of the suit schedule property. The Defendant No.1 being the absolute owner in possession of the suit schedule property has proposed to sell the suit schedule property along with Defendant Nos.2 to 9 and also on behalf of minor defendants 4(a), 5(a) and 5(b) and defendant Nos.8(a) to 8(c) and Defendant Nos.9(a) and 9(b) through their natural 5 guardians i.e. defendants 4, 5, 8 and 9 who are sons and grand children of Defendant No.1. Accordingly, the defendants have entered into an agreement to sell on 15.04.2006 in favour of the plaintiff for a consideration of Rs.6,00,000/-. The said agreement was registered before the Sub-Registrar, Tumkur on 18.04.2006. On that date, the defendants have received a sum of Rs.4,98,000/- out of the sale consideration of Rs.6 Lakhs and agreed to execute regular sale deed after receipt of the balance sale consideration of Rs.1,02,000/- and the plaintiff was put in possession of the suit schedule property. It is further case of the plaintiff that in spite of repeated demands, the defendants failed to execute the sale deed in terms of the agreement. Therefore, she filed the suit for specific performance to enforce the agreement against the defendants.
4. The defendants have filed the written statement denying the plaint averments and contended that they never executed any registered agreement as alleged by the plaintiff and the defendant No.1 is not the 6 sole owner in possession of the suit schedule property etc., and prays for dismissal of the suit.
5. When the matter was posted for cross-
examination of PW-1, at that stage, the plaintiff filed application under Order 6 Rule 17 of the Code of Civil Procedure to amend the plaint schedule, after the word bearing add old and after Sy.No.72/1 add New Sy.No.72/3 measuring 3.04.00 guntas and Sy.No.72/4 measuring 01.36.00 guntas and after the word Taluk add common, contending that the plaintiff filed the suit for specific performance and the said case is set down for evidence. The defendant No.5 has made the phody of the suit schedule property without the knowledge of the plaintiff and recently has obtained the RTC's in respect of the suit schedule property and came to know that the said survey number was newly phoded and katha and pahani of the new survey numbers also changed to the names of the LRs of the defendant Nos.1, 5 and 5(b). Therefore, the application is just and necessary to amend the plaint. The said application was 7 resisted by the defendants by filing objections. After hearing both the parties, the trial court by the impugned order dated 23.01.2017, allowed the application for amendment filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure. Hence, the present writ petition is filed by Defendant Nos.5, 5(a) and 5(b).
6. I have heard the learned counsel for the parties to the lis.
7. Sri. Ravishankar G. appearing for Sri. Gangadharappa, learned counsel for the petitioner, vehemently contended that originally the suit was filed by the plaintiff for enforcement of an agreement of sale dated 15.04.2006 in respect of Sy.No.72/1 measuring 5-00 Acres. By way of amendment, he wants to introduce new survey numbers i.e., Sy.No.72/3 measuring 3 acres 04 guntas and Sy.No.72/4 measuring 1 acre 36 guntas in the plaint schedule property which will introduce altogether a new case and will introduce new cause of action. Therefore, the present application cannot be allowed which will take away the nature of the suit. He 8 further contended that when the amendment sought is altogether new survey numbers, the amendment cannot be allowed. Therefore, he sought to set aside the order passed by the trial court by allowing the writ petition.
8. Per contra, Sri. Renukaradhya, learned counsel for C/R-1 sought to justify the impugned order and specifically contended that the suit schedule property bearing Sy.No.72/1 subsequently phoded and given new numbers as Sy.No.72/3 measuring 3 acres 04 guntas and Sy.No.72/3 measuring 1 acre 36 guntas. In view of the subsequent phodi done by the revenue authorities at the instance of the defendants, the present application is filed for amendment of new survey numbers in the place of old survey number, the measurement is same. He further contended that it is not disputed by the defendants that Sy.No.72/1 subsequently phoded and given new numbers as Sy.Nos.72/3 and 72/4. Therefore, he sought to justify the impugned order.
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9. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present writ petition is :
"Whether the impugned order passed by the trial court allowing the application filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, to amend the plaint schedule is justified in the facts and circumstances of the present case?"
10. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
11. It is an undisputed fact that the defendants are the owners of suit schedule property. The same has been purchased by Defendant No.1 under a registered sale deed dated 25.11.1995. It is the specific case of the plaintiff that the defendants have executed a registered sale agreement dated 15.04.2006 for sale consideration of Rs.6 Lakhs and received a sum of Rs.4,98,000/- on 10 the date of the registration of the sale agreement and the plaintiff was put in possession of the same. Though the defendants denied the entire plaint averments, they have not disputed the fact that they are the owners of the suit schedule property and contended that they never executed a sale agreement as alleged.
12. It is the specific case of the plaintiff that during the pendancy of the proceedings, at the instance of Defendant No.5, Sy.No.72/1 (suit schedule property) was phoded and given new numbers as Sy.Nos.72/3 and 72/4 totally measuring 5-00 acres. Therefore, he sought for amendment of the plaint schedule and he has not sought for any pleadings in the plaint. Though the defendants filed objections, in the statement of objection, they never disputed the fact that the suit schedule property bearing Sy.No.72/1 subsequently phoded and given new numbers as Sy.Nos.72/3 and 72/4 at the instance of the defendants. The only objection filed for amendment was that the application filed is belated one, at this stage, if the application is allowed, it amounts to 11 change the identity of the property and it will lead to multiplicity of proceedings. They never whispered and disputed that the suit schedule property subsequently phoded and given new survey numbers as stated supra. Therefore it is clear that the Sy.No.72/1 measuring 5-00 acres subsequently phoded and given new numbers as Sy.Nos.72/3 and 72/4, totally measuring 5-00 acres. The phodi work took place as per MR T4/2015-2016 which was done in accordance with the partition between the parties. Therefore, the defendants have no grievance to amend the plaint schedule in view of the subsequent phodi work took place at the instance of the defendants made by the Revenue Authorities phoded the old Sy.No.72/1 and assigning new survey number as Sy.Nos.72/3 and 72/4.
13. It is also not in dispute that only the defendant Nos.5, 5(a) and 5(b) have filed the present writ petition, the other defendants have not filed the present writ petition which clearly indicates that they are not disputing the fact that old Sy.No.72/1 subsequently 12 phoded and assigned new numbers as Sy.Nos.72/3 and 72/4.
14. The trial court after considering the entire material on record, recorded a specific finding that it is seen that the schedule property bearing Sy.No.72/1, measuring 5-00 acres situated at Arekere Village, Kasaba Hobli, Tumakuru Taluk has been phoded and new numbers were assigned to Sy.No.72/1 as Sy.Nos.72/3 and 72/4 and the said phodi work was taken place as per MR T4/2015-2016 which was done in accordance with the partition between the parties. Therefore, in order to include the property in question, the new survey numbers, this amendment is sought and establish the same is on the plaintiff. Therefore, the defendants if at all they are having any objection, they are entitled to file additional written statement to defend themselves. Therefore, the trial court held that no prejudice would be caused to the defendants if the amendment is allowed. Accordingly, the trial court 13 allowed the present application and permitted the plaintiff to amend the plaint.
15. In view of the above, the point raised in the present writ petition has to be answered in 'affirmative', holding that the trial court is justified in passing the impugned order allowing the application under Order 6 Rule 17 of the Code of Civil Procedure.
16. For the reasons stated supra, the plaintiff has not made out any ground to interfere with the impugned order passed by the trial court in exercise of power under the supervisory writ jurisdiction. Accordingly, the writ petition is dismissed.
Sd/-
JUDGE snc