Karnataka High Court
Sri Parthasarathy vs Smt D T Sridevi on 19 January, 2016
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
WRIT PETITION No.7570/2014 (GM-CPC)
BETWEEN:
Sri Parthasarathy
Aged 63 years
S/o Krishna Rao
R/o Flat Nos.A1 and A2
"Sumangala Apartments"
Constructed upon composite property
Bearing No.12 situated at
HAL III Stage Extension
Bangalore-560 038. ... PETITIONER
(By Sri Manjunath K V, Adv)
AND:
Sri D T Sridevi
Aged 45 years
W/o Ravishankar
Proprietrix
M/s Sridevi Constructions
No.139/B, 10th Main Road
RMV Extension
Sadashivanagar
Bangalore-560 080. ....RESPONDENT
(By Sri B S Raghu Prasad, Adv)
This Writ Petition is are filed under Articles 226 & 227
of the Constitution of India praying to quash the Annex-E
impugned order dated 25.01.2014 on I.A. under Order 6
Rule 17 read with Section 151 of CPC dated 07.02.2013 in
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O.S.No.8354/2012 on the file of the XXXIX Addl. City Civil
Judge, Bangalore.
This Writ Petition coming on for Preliminary Hearing in
'B' Group this day, the Court made the following:
ORDER
Heard learned counsel appearing for the petitioner- plaintiff and learned counsel appearing for the respondent- defendant.
2. Petitioner has filed this writ petition challenging order dated 25.1.2014 passed on the application filed under Order VI Rule 17 read with Section 151 of CPC in O.S. No.8354/2012 on the file of the XXXIX Additional City Civil Judge, Bengaluru.
3. The petitioner-plaintiff has filed the said suit seeking the relief of injunction against the respondent defendant in respect of the suit schedule property. During the pendency of the said suit, the petitioner filed an application seeking amendment of plaint so as to claim the relief of specific performance as against the respondent defendant in respect of the said property. The said 3 application was opposed by the respondent by filing objection statement contending that the said application would change the nature of the suit converting the one for bare injunction into the one for specific performance which is not permissible in law. The respondent has also contended that the said amendment is barred by Section 41(h) of the Specific Relief Act so also she has contended that the proposed amendment is vague and inconsistent as there is no contract between the parties for the relief of execution of the sale deed. Hence, she sought for rejection of the amendment application. The trial Court after considering the merits of the application, ultimately, rejected the application holding that it goes to change the nature of the suit from converting the suit for injunction into the suit for specific performance. It is also observed by the trial Court that when there is efficacious remedy available under Section 41(h) of the Specific Relief Act, the suit for bare injunction is also not maintainable. Therefore, the trial Court has, ultimately, rejected the amendment application. Being aggrieved by the said order, the petitioner-plaintiff is before this Court.
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4. I have perused the grounds urged in the writ petition, copies of the plaint, written statement, application seeking amendment, objection statement to the said application and also the impugned order passed by the trial Court.
5. It is no doubt true that looking to the prayer column in the said suit, the petitioner-plaintiff has sought for injunction as against the defendant in respect of the suit schedule property. But considering the averments made in the plaint, the plaintiff has made an averment that there was a contract between himself and the defendant in respect of the sale of the suit schedule property and he has paid the entire sale consideration amount of Rs.73.00 lac to the defendant as the defendant had promised that she will execute the registered sale deed in favour of the plaintiff. In para No.4 of the plaint, it is contended that consequent of the above sale deed, khatha has been effected for the entire schedule property with distinct identity in the name of the defendant and in view of the good relationship that she was having with the plaintiff and also owing to her urgent financial necessities, the defendant had offered the schedule 5 property for sale at Rs.73.00 lac and in turn, the plaintiff having accepted the offer, paid the entire sale consideration of Rs.73.00 lac on 3.1.2011 purely on the promise made by the defendant that an appropriate sale deed will be registered in due course before 31.3.2011 in the name of the plaintiff or any nominated person. The defendant executed a receipt cum sale agreement on receiving the above sale consideration. It is further averred in the plaint at para No.6 that number of times, the plaintiff requested the defendant to execute the sale deed and even he made correspondences through e-mail requesting for execution of the sale deed. Even then, the sale deed was not executed in his favour. Considering these averments made in the plaint, they clearly show that the plaintiff has pleaded about the transaction of he entering into an agreement with the defendant for consideration amount of Rs.73.00 lac. While filing the suit, the plaintiff claimed injunction against the defendant on the ground that the defendant started to cause obstruction to the plaintiff's peaceful possession and enjoyment of the suit schedule property and subsequently, he also filed the present amendment application seeking the relief of specific performance against the defendant. The trial Court 6 considering the amendment application and objection statement filed on the application, opined that it is going to change the nature of the suit for injunction and it is also barred under Section 41(h) of the Act. Observing like this, ultimately, the trial Court rejected the amendment application. When there is a pleading in the original plaint about the transaction of agreement of sale, now the present application for insertion of the prayer column of specific enforcement of the agreement is not available. But those aspects will be considered by the trial Court while trying the main suit. If there is no sufficient material, it is the risk of the plaintiff and if he is not able to establish the burden placed on him, he may not succeed in the suit.
6. But looking to the amendment application seeking the relief of specific performance, as there is a foundation in the original suit filed and also in the pleading, I am of the clear opinion that it will not change the nature of the suit as observed by the trial Court.
7. I have also perused the decision relied upon by the learned counsel for the respondent defendant in case of K. 7 RAHEJA CONSTRUCTIONS LTD. Vs. ALLIANCE MINISTRIES AND OTHERS reported in AIR 1995 SC 1768(1). Perusing the facts and circumstances in the said reported decision and the facts and circumstances involved in the case on hand, they are not one and the same and the said decision will not help the respondent to oppose the said application. Accordingly, the petition is allowed and the order assed by the trial Court rejecting the amendment application is hereby rejected and the said application is allowed. The petitioner is permitted to carry out the amendment before the trial Court.
Sd/-
JUDGE Cs/-
Ct-Sg/-