Mukesh S/O Lalachand Baniya vs Ganesh S/O Lalachand Baniya on 19 December, 2013

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Karnataka High Court

Mukesh S/O Lalachand Baniya vs Ganesh S/O Lalachand Baniya on 19 December, 2013

Bench: Dilip B Bhosale

                         1




         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

   DATED THIS THE 19TH DAY OF DECEMBER, 2013

                      BEFORE

      THE HON'BLE MR.JUSTICE DILIP B BHOSALE

       WRIT PETITION NO.62434/2011 (GM CPC)

BETWEEN:

MUKESH S/O LALACHAND BANIYA
AGE: 46 YEARS, OCC: BUSINESS,
R/O MAHAJAN CHAWL, OPP: WOODLAND
HOTEL CROSS, KESHWAPUR, HUBLI,
DIST: DHARWAD.
                                    ... PETITIONER
(BY SRI.: R.A.PUROHIT, ADV. FOR
SRI.DINESH M KULKARNI, ADV.)

AND

GANESH S/O LALACHAND BANIYA
AGE: 49 YEARS, OCC: BUSINESS,
R/O MAHAJAN CHAWL, OPP: WOODLAND HOTEL
CROSS, KESHWAPUR, HUBLI.
                               ... RESPONDENT

(BY SRI.: V M SHEELVANT, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH IMPUGNED ORDER PASSED ON I.A.NO.6 VIDE 2 ANNEXURE-P DATED:11/03/2011 PASSED IN R.A. NO.70/2009 BY PRINCIPAL CIVIL JUDGE (SR.DN.) HUBLI AS NULL AND VOID.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

PC:

Heard the learned Counsel for the parties.

2. By this writ petition, the petitioner seeks to challenge the order dated 11/3/2011 passed by the Principle Sr. Civil Judge, Hubli, on an application bearing IA No.VI in RA No.70/2009, whereby the said application has been allowed. By that application, the respondent plaintiff sought amendment of a decree, so as to give/mention correct description of the suit property, as mentioned in the plaint as well as the judgement dated 25/10/2004 disposing of OS No.140/2003.

3. I have perused the judgement and in particular paragraph 2 thereof and so also description of the suit property. The description of the suit property mentioned in the decree reads thus:-

"That the plaintiff is the owner of plot No.367/3-A, 1-A/2-B admeasuring 113.5/9 Sq.yards (94.41 meter.)"

4. In the decree, even plot number was wrongly typed as 367/3-A/1-A/2-3 instead of plot No.367/3-A/1- A/2-B. That correction was allowed to be made by order dated 28/10/2010 passed by the Appellate Court and confirmed by this Court vide order dated 7/2/2011 in W.P.No.60023/2011.

5. In the amendment application the respondent sought correction in respect of description of the suit property as follows:-

"Suit property is an open space and a shop including Varandha situated on Western side of the house, constructed by the plaintiff in plot No.367/3- A/1-A/2-B".

6. Though, the petitioner challenges the said order in present writ petition, whereby the amendment as 4 aforementioned has been allowed, the petitioner could not and did not demonstrate as to what is wrong in the description of the property sought to be inserted byway of amendment. In other words, there does not appear to be any dispute about identity of the suit property, as described in the decree. In the judgement the property correctly described as mentioned above so also in the plaint. The learned Counsel appearing for the respondent, on instruction, submits that the area/measurement of the suit property to remain same as reflected in the decree, i.e. 113.5/9 Sq.Yards (94.41mtrs.).

7. In this view of the matter, I do not find any reason to interfere with the order passed by the court below in writ jurisdiction under Articles 226 and 227 of the Constitution of India. Hence, petition is dismissed.

Sd/-

JUDGE Vmb

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