Karnataka High Court
Sri B L Y S Prasad vs Sri S G Joshi on 7 September, 2009
. IN THE HEGH CUURT OF KARNATAKA AT BANGALORE Dated this the 7"' day of September, 2009 Before THE HON'BLE MR JUSTICE H B1LLAr>zi%l" 'f if *' Arm » Writ Petiti0nA 13803 / ZQOQ Between: L' Sri B L Y S Prasad, 61 yrs . S/o late B K Lakshmi Narasimha Iyeiigzii R/a # D--57, KVAFSU Quarters Veterinary College, Hebbal _ _ = * Bangalore 560 024 V '_ y_ _ A V' Petitioner (By E S Dwarakanath, Adv.) V} And: sa s G Joshi, styrs V1a:a1'c:g:;--',:oshl:.l . Proprietor of Garrison E'ngin_eerying Entergjrises # 3-26, 1~E_Sta__gc, Peeiiya lii<lu'svtriéti..l3:;ta.te Bangalore,56Q 058 Respondent (By Sri Basayaraju' Bel2;_v:a;n.gle1la-,"lll}\dv.) Writ l5etition.A1s filed under Art.226/227 of the Constitution ll l'pre.ylii:g t"c:qu_ash annexure A dated 26.5.2008 on IA 6 in OS 2278/1998 by ' the 'Aaai;..c'::yV'C;vi;Judge, Bangalore. Th§slWriti:: Petition coming on for Preliminary Hearing this day, the Coiirtmatle the following: ORDER
Heard the learned counsel for the petitioner. There is no ll representation on behalf of the respondent.
L/.
2 In this writ petition under Articles 226 & 227 of the Constitution of India, petitioner has called in question, the order dated 26.5.2008, vyipassed by the Trial court on IA:g in OS No. 2278/1998.
L 3 By the impugned order, the Trial a«1lowcdj:the_ application I T filed by the respondent for amendment of the 'plainti 4 Aggrieved by that, the petiti.oneriihasi filed this writipetitifrgan. 5 In brief, the facts are: ii The respon.dent--. _ 1998 for permanent injunction rest'rainii_t1_g the suit schedule property and peac.ejfu.1i§I9ossession and enjoyment of the suit schedule -» :Tirerearftei*, the respondent filed IA No.6 under 0 6 R 17 r/w S.ldl" him to amend the plaint by adding the reliefiot; specific performance, which has been allowed. Therefore, this writ .p'eti,tion._i -- ll 6 The learned counsel for the petitioner contended that the Trial court wagnot justified in allowing the application. He also submitted that the suit I filed on 19.3.1998 for bare injunction and thereafter, the application for .....:trnendment of the plaint has been filed on 9.9.2007, after the lapse of L/ several years and therefore, the Trial court was not justified in allowing the application. Further, inviting my attention to para 7 of the pl'a'.i---mp, he submitted that the respondent has pleaded that during FebruaryM1._99:8Vi'wihenhe approached the petitioner and demanded execution of sale tl1er.petition_e'r i V was reluctant to perform his part of the contract' and thereforejii 't-he tr.ialfcoiirt was not justified in allowing the application.-s_upporti'ofil1isv sub'i1iis.sjion, he placed reliance on the decision of Ho.n'b!e Supreme Court repo'r'i;ed'1n AIR= "V 1995 SC page 1768.
7 I have carefully ,_consi'dered:thei's.tibmisis'io1isVinade by the learned counsel for the . ' 8 1 find considerable"force_ii'rtv..t_he Submission of the learned counsel for the petitioners. it is not itt"'dIi'eptite the suit in os No.2278/1998 has been f.iled bare injuiictiflh ii Thereafter, the respondent has filed application for 'the plaint/ttliiaddiiig the relief of specific performance' on A "17. the plaint, the respondent has pleaded that during first week-aof 1998 when he approached the petitioner and demanded i"e>gecutionvofi'sale deed, the petitioner was reluctant to perform his part of the if-3_()iI'tt:,3"21_iACii.i. The application for amendment of the plaint has been filed on or Wl2i.9.20O7, after the lapse of several years. The Hon'ble Supreme Court in l/ the case of K Raheja Constructions Ltd Vs Vs Alliance Ministers & Ors - AIR 1995 SC 1768 has held, the plaintiff having expressly adrnitteldeyin the plaint that defendant refused to abide by the terms of contr;aC't.4l'~of specific performance ought to have been asked in the _o1figuinal suit itself 'and cannot be allowed to be added after Severallyearai being barred viirnitvation. ' Therefore. in my considered view, , the Trial 'Court was not ljustified in allowing the application. The applicatioiifor lfiled on 12.9.2007. The suit has been "mad on':'§.3.iti'99é;'--.1p paraiiiofithe plaint. it is pleaded that the petitioner was' re.luctlanf'lito part of the contract during February when sale deed. Therefore in my conside;.redli'b_v.iew;the :w:a:--:__iiot justified in allowing the application;t----'aTh;e' of viéupreme Court reported in AIR 1995 SC:l*l?age" to the facts of the present case. Therefore. the impugned order cannot be sustained in law}, i "
Acficordingly. thelwlrit petition is allowed and the impugned order N6' ipaésed bylthe Iclourt on IA No. 6 in O§'2278/1998 is hereby set aside. 5 gal ' 113993