Karnataka High Court
Parvathamma vs N Pillappa on 21 June, 2010
Author: Ashok B.Hinchigeri
Bench: Ashok B.Hinchigeri
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 21° DAY OF JUNE 2010 BEFORE WRIT PETITION No. 34340 of 2903 [em-CPcy" BETWEEN: [. PARVATHAMMA Age: Bl YEARS W/O PARTHASARATHY GOWDA:. 2. SRI P SRINIVAS MURTHY Age:37 YEARS S/OPARTHASARATHY GOWDA oe] SRI SANTHOSHKL UMAR™ Age:35 YEARS «|. : : S/O PARTHASA RAT HY GOWDA -., 4, SRI KRISHNEG Ow DA' Age:51 YEARS a S/O ABBAIAH GOWDA ALL ARE R/AT. CHANHASANDRA VILLAGE, ~NEAVE VIDYA PHOTO STUD AUDUGODI POST, BANGALORE. .. PETITIONERS "(BY.SRIN BAYYA REDDY, ADVOCATE) "AND: fe oN PILLAPPA AGE 59 YEARS S/O NAGAPPA _ R/AT.NO.9, HAYES ROAD CROSS RICHMOND TOWN, BANGALORE 47. 2. SRIJ RAJESH "S70 JAYAPRAKASH "AGE 36 YEARS R/AT NO.13, 23°° CROSS, KILARI ROAD, BANGALOER 53. .. RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227. OF THE CONSTITUTION OF INDIA PRAYING TO CALL. "FOR THE, © RECORDS IN OS.NO.1242/05 PENDING ON THE FILE OF THE ADDL. © CIVIL JUDG, [JR.DN} BANGALORE RURAL DIST. BANGALORE SET ASIDE THE ORDER PASSED IN THE SAID CASEOM IA.NO.6 VIDE ANN- : D, DT.29.6.09 BY THE ISSUE OF WRIT OF CERTIORARI AND ETC. THIS WRIT PETITION COMING ON FOR | PR L. HG. THIS > _DAY, THE COURT MADE THE FOLLOWING: onpen The petitioners have cailec into | question, the order dated 29.06.2009 (Annexure- ) passed by the court of the Addi. Civil judge (Jr. Dn.), Bangalore Rut ral District Bangalore on T.A.VI in 0.5.No.1242/2005. wt 2. The respondents. filed. the suit seeking the relief of permanent injunction against the petitioners in respect of the uit schedule properties. In the said suit proceedings, they filed Laseeking leave af the Court to amend the pleadings. The sum and 'substance of the amendment sought is that the "petitioners rove created sham documents in favour of the third "parti es. The respondents also sought the incorporation of the "prayer for the relief of the specific performance of the _ cagreement/memorandum of understanding, dated 25.3.2005 in - respect of schedule property of the agreement/memorandum of *
understanding, dated 25.03.2005. On the Trial Court allowing this application vide its order, dated 29.06.2009, this petition is presentea.
3. Sri Bayya Reddy, the learned counsel for che petitioners submits that the amendment in question had changed the very nature of the suit, He further submits that the suit for iu action and suit for specific performance of the agreement are founded on the two different causes of action. On the impermissibilty of the inclusion of the relief for the: specific pert 'mance of the agreement in the suit cnstiute § for injunction , simplicitor, he has relied on the. Apex, Court's judgment. ine 'the case of BHARAT KARSONDAS » THAKKAR. Vv "KIRAN CONSTRUCTION CO., reported in AIR 2008 sc 2134. Sri Bayya Reddy's second limb of submiss ON is that the "relief of specific performance is barred by limitation. |
4. It is trite position in law that the pre-trial amendments "are to be allowed liberally. In the instant case, it is not in "dispute that the issues are not yet framed. Proviso to Order VI Rule 17 of CPC has no manner of application where the trial has not" commenced, The Trial Court has wide discretion in the ~omatter of allowing the amendment application. If the Trial Court AGH.
feels that the amendment sought is required for resolving the real controversy between the parties, it allows the amendment application. Furthermore, what is noticeable is that 'the petitioners have allegedly alienated the property on 07:11.2005 .
i.e, subsequent to the institution of the suit on 26.09.2005. The facts of the case on hand and of Bharat Karsendas Thakkar '(surpa) are entirely different.
5. As far as the second submission ig concerned, if the Trial Court comes to the conclusion'. that. the amendment is required to avoid. the multiplicity ef preceedings, it has wide discretion in allowing the amendment application, which is even said to be barred by imitation. However, based on the specific rival pleas, it may have. to frame an issue on the point of limitation. By the allowing 'of the amendment application, the petitioners are not put to any prejudice. Not finding any / 'Jurisdictional error in the Trial Court's order, I decline to set aside the order 6n LA.VI, 6 mais petition is dismissed. No order as to costs.
7. However, liberty is reserved to the petitioners' side to
- request the Trial Court to frame an issue on the point of AEM.
limitation, court fee, etc. Liberty is also reserved to the petitioners to file the additional written statement taking the necessary pleas and defences.
8. Sri Bayya Reddy requests that time-frame be' prescribed :
for the speedy disposal of the suit. he petitioners are directed to co-operate with the Trial Court in the speedy digposar of the matter. The Trial Court shalt expedite the trial and dispose of the main matter within an outer limit of one. year from the date of the production of the certified copy of today's order. bvr =