K S Rama Nayak vs M/S Navajeeva Ashram on 29 September, 2010

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Karnataka High Court

K S Rama Nayak vs M/S Navajeeva Ashram on 29 September, 2010

Bench: A.N.Venugopala Gowda

IN THE HIGH COURT" OF KARNATAKA AT BANGALORE
DATED THIS THE 29" DAY OF SEPTEMBER, 
BEFORE 3   'A

THE HON'Bi_E MR. JUSTICE A.N;.,.yENuGOPA«LAv "' V

WRIT PETITION NO.2171(2O,;1ot i:O'M{c.réC),%   

BETWEEN:

K.S.Rama Nayak

S/o.Sré Sevanayak _ y   --.  
Aged 59 years, R/at    V .. " '
Ashtha Grama Layout   1 
Magadi Road, Kamaksh-éeaiyia   '

Bangalore -- 55OA.Ttoy;'?9.  g 

__ 2      H ...PETITIONER
(By Sri S.i\i2._VSr§:_ra,wm R'ed4dy;V'1AAdvr.A;)  '
  . . T . ..   V.   

1. W5. rx|.ava}eev_a .As~.hyr"am"
Rept. by its Pr"esrde'r»:.t
Sr: 3o'h.n 'Tha;--2Ic!'<_a| 
 S;'o.Late"3ohn, aged about 80 years
" No.24, Huchiso-n'Road
V  H"e':murA_Ma:n Road
  Ban*ga«!ro"re_-- 560 084.

. *--.VTheCjorrrmissioner,

 Ba.:a~g_ayE.Ore Development Authority
K;'Pa.West, T. Chowdaiah Road
Ba_n'ga|Ore -- 560 020.

    4'";The Deputy Secretary

H No.IV, Bangalore Development Authority
K.P.West, T. Chowdalah Road



ix.)

Bangalore -- 560 020.

...RESPON.£1ENTS
(By Sri S.Shiva Prasad, Adv. for R1;   
Sri iVi.S.Chandrashekar Babu, Adv. for R2 & R3)   

This petition is filed under Articles   
the Constitution of India praying to call for««t.h"e,records in ..

O.S.No.9676/O5 on the file of XVE-A'dd.l, C'ity_,Ci"vil'4'Judg'e at
Bangalore and quash the order', datedj.14.'1.2;--20'O9._v.id.e

Annexure v- E passed on LA. under"Order'6__Ruie. 
Section 151 of CPC in O.S.N,o._9676/2095 onthevfiie of the 
XVI Additional City Civil Judge " at r_Ba-ng'aio"re " and "

consequently dismiss the said"LA. under'-Order  Rule 17
r/w Section 151 of CPC.    

This petition cornin«'g..o'n..prel.ifmiriary hearing in 'B'
group this day, the Court madelthe .follo\}y:in.g.

15* respclneénly lpi;e;ﬁ'tiffCl.--he'e instituted O.S.9676/O5
in the:':__Cit_y' Cliyii.fCo'urt;'i~..:i3a.ngaiore, against the petitioner
and respondents"'2_  to set aside the allotment made

in fa_§\&/'our: of th'e.._3'd defendant by the defendant No.1 and

V:Afowr_,Vcon_sequentiai reliefs. The petitioner / defendant No.3

"ha's'.__filie"d7ygrit't.en statement on 9.6.05. The plaintiff filed

 _ I.A."':Jnd..er 036 R 17 CPC on 13.2.09 seeking permission of

,:'the._.4Cou'rt to amend the piaint and to incorporate the

i~__'D.tVo'po'sed additional plea and additional prayers.

if -Defendant No.3 fiied objections on 16.3.O9.KThe Trial

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Court, upon hearing the learned counsel and considering

the record, has ailowed the application on 14.12.Qs"},,:4""This

writ petition by the 3"' defendant Is directed

said order.

2. Sri S.M.Sriram Re.ddy{,=..:'iea»rn'ed" 

appearing for the petitioner»*wo..uid firstiy corii't'eo,iq.,.th,a1§, they,"

proposed amendment wiil change_ the subjecvt matter and
takes away the accrued_zrigh't_s  vth'e.',;petit'ioner. Secondiy,
the application was fI|edv--after'--fou_r  the institution

of the suit   d.ue:_4V<i:i.!iijeun'ce' on the part of the

plaintiff';"'*'Thi'ij?diy,:'f1:the"*proposed""aVmendment is barred by
limitation and  of action. Fourthiy, the

proposed 'amendm_en~r, is7irreievant and unnecessary for

 adj_LJli'.iCEEi:At.iDg the""ree..!...question in controversy between the

'.7,'pa'rt--!eAs*;.._cLastiy, the impugned order is perverse and

irrational'.  1 

1' Sri N. Vasudevan, learned advocate appearing

rfo'r*».t.he respondent / plaintiff on the other hand wouid

...Contend that, during the pendency of theﬂit, taking

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advantage of the order dated 16.09.09 passed on--._LA.1,

the defendants high--handediy put up the con's'ts"u"ct:i"on,

which acts necessitated the filing of the appiicationi,:Vsee'ki,'n'g 

amendment. The cause of actionon the which;.the it

suit was instituted being a continiuinﬁio'neii'an'd..ivri,,v'iiew.:"of._

the subsequent events thatiitovoicpiace rafterthéfi'n'stit'ution''' '

of the suit, in order to avoid muiiti'Lpiicit_y oi' p'roc.eet§iings and
to decide the real qvu"estion'~ between the
Parties, the aPPii.;?ti€'ii"wasifi!éti,,:3i'feVV-suihimits that there is
no deiay   soon after the
defendants  order on I.A.1 dated
16.O9.:'QA9  ii'ie'da'i--. construction on the property,
the appiiiication_'s'eei{i.n.g~ 'amendment was filed. He submits

that,§the.piaintiffis diiigentiy prosecuting the suit in terms

 v:'of._thejtidgrnient dated 17.3.10 passed in MFA 168/10.

timed submits that, the Triai Court by taking

into""*conusideration the facts and circumstances of the case,

gin': .e;<erci"se of the discretion vested in it, has passed the

 a.j_i'mp'u'g:ned order which being neither irratiﬁi nor iilegal,

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no interference in exercise of supervisory jurisdiction is
called for.

4. Keeping in View the rival contentions arildékthe

record, which I have perused, the point for 

is:

"Whether the impugned order 

illegal?
5. The petitioner  lslhreslpondgent are
claiming right to the --s_ufrt_A;::_Vro;:g_ert\/._"on'~the basis of the

allotment made by respo.nd_ent§._;:_andx3V§"VThe petitioner has

been al_lot--tedithe'fsu'it_'p'rop--erty by 2"" and 3"" respondents
on 8.9.OA3~--_and_  an absolute sale deed has

beert executed-..w:hichv has been registered as document

  The relief sought in the suit is, for setting

 the"_"_va_|lo;t'ment made in favour of the petitioner on

s.9;'o3.gs'i;:§er absolute sale deed No.2558/O3~O4. The

 proposed amendment is with regard to the alleged events

"'corn'mencing from 15.12.05 till the applicatiﬁrwas filed.

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In view of the alleged events after the institution of the

suit and the 3'" defendant putting up construction .ove:'r..lthe

suit property, two consequential prayers have  i.

i.e., (i) to declare the sale deed d_a.ted_13i-CV6'.'G3'_';Va${eculteéV_V 

by defendants 1 and 2 in favourof theL3"»defendVa:ni:_a?s.i

null and void and not l3lndll'l't_'J'v.aC.lj1 the'~p:lai.n_tilfflllaijd-..(.ii)3 for 

mandatory injunction__. to  or.' "d.ernoVllsh the
construction. Encic£entVa"l'l.\.,l«~l',the_peti.ti'o--n'e.rl:stated before this
Court in MFA 15_:3--,/lo   put up as per
sanctioned   islonbthte  completion. He
has  the Court that in the
event  he will not claim any equity

and will also deniolilsh thetstructure put up at his own cost.

 «fa ranH2'O"'"o'fthe plaint reads as follows:

 'Viila.iVié.~tiff submit that the defendant No.3 has
  Obft'c'..i.'i'1"l"f;:':lV: an Absolute Sale Deed in the harried manner
it zirilaSlte bearing No.l024, I-I.B.R. 1.5' Stage, 4"' Block,

Bangalore, which is contrary to law and also by

it  misusing the official power by the brother of P.R.O.

B.D.A these kind of illegal act has been committed and
obtained an alternate site in the Ashrarrgs allotted





property, thereby utter violation created by the
defendant No.1 and 2 with the instigation of defendant

No.3 and Absolute Sale Deed also obtained.§vithiens.Vthe

limited period in the harried manner on 

Book--I, Volume No.839, Vide Cl0Cll1"i'.»'t°.,I:"l:ii3.v:N(0.255$/"~ 

2003-04, at pages 232 to f£"h34,b°before ~'th-e:_"Adr1itiona:i

District Registrar, Bangalore ll>'D_istrict," 

situated at B.D.A C--o_mple;».:. 0' at 

Kumarapark West, Banga'£.ore j--  forta sum of
Rs.90,234/--. The i.n1pugn"edl_sale"s.deed obtained by the
defendant No.3  to  plaintiff and to its
children. The certi.fie_d--.Co'pyi,oflirtiptigned sale deed
dated 08.'O9§i2--O0C tis §produced:"l1e1h'_ejiVith and marked as

  aforesaid impugned

s,altes.d'e'ed' isi:;deserve_s to"*be.vset--aside by this Hon'ble
Court fee is herewith paid by the
plaintiﬂ; for."s_:eel§'iné'setting aside the absolute sale
deediinhwhich obtained by the defendant No.3 illegally

_  in uharrieVd~nf1anner".

  written statement dated 06.01.2006

"§'0iEed--..tb3/tiliepi«.3'f'?lV'defendant, it has been stated at para 6(b)

0 as f'o'EEovtsV:""

" "Thereafter it was noticed that some litigation was
0   ..5goir1.g on in respect of the immovable property in which
the above described Site 1'.e, Site No.8? has been

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allotted in favour of this Defendant and therefore vide
letter dated 29.11.2001 this defendantﬂ had
approached the BDA with the request for al'tet'_'ii_atiye

site; pursuant to which by a letter  

this defendant was intimated that he  wlithy  

a site bearing No.i024 ofv.HBR.'I éistagejjtli'-ill' Block,

measuring 50 feet X 80 '~..,feet"r£ii§e.§*._the" 
Property). Thereafter: _on I0_"i' Junedt  
Cancellation Deed registered. as N0._25iV13/03304' dated

06.09.2003 the earlier...Lease--qcum--Saie Elgreement
executed on  of earlier site
No.885 has been Cancelled;and..the.fV_*a:b_solute sale deed
dated 13,00300:3'"'h:aa~;}Laad?teaeeuztad by the BDA in

favour" at  d~efendant  document No.2558/03-

04.i..da£ed"'0e:;;o9.2003' at No.232 to 234. Volume
i:3v39__of1 in the Office of the Additional
District Regist1*ar;'~._i3'atigaiore Urban District and by
issuin-glav E?0s.ses.sbion':Certificate dated 13.00.2003 this
y._§;ldefendant" put in actual physical possession of the

V   andwthe Bytarayanapura City Municipal
   registered the Khatha of the said site in

0.  ' fayo   this defendant".

8!}. In para 5 of the affidavit in support of

  i.:if"alpt)lI'i"eation seeking amendment, it has beig stated as

   follows: //

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"I submit that after came to know that the alleged sale

deed executed by the defendant No.1 & 2 in_4vfa$io't:tivof

the defendant No.3 is not valid and the  %1_._I_1"ii.

and Void and also the same is not  V'

plaintiff and hence the_J...sa,i'd  _'_;g1so it

incor orated in the laint iniaccordeinee with 1é{'.ii?'?.., 

9. Indisputedly, the""--trialidofi a_  not'-it

commenced on 13.02.2009___ii:.ue;:,_   atiplication
seeking amendment of"~t.h'e.,D"i.a_in.t An apﬁlication
for amendmentcan bgaiihoivfved where there
has been  the dominant
purposewofi  is to minimize the

iitigation, __u.niAe's-'s--t._h"eicI'aiirn--.is« ex-facie barred by limitation

_and takeszaway'  rights of the opponent causing

irrenjediable.Vp're_j:u'd'iceV"to the opponent. The jurisdiction to

V'a!i_o\}'v orfnot"«t.o aliow an amendment being discretionary,

A'theI'__siamiegw.i.iivivi*"'have to be exercised on a judicious

evaitiation ofthe facts and circumstances due to which the

:"amVendri:~e'.nt is sought. If the granting of an amendment

 _ 'i*eVa*ii~,r"subserves the ultimate cause of justic and avoids



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further litigation, the same should be allowed depending

upon the factual background of the case.

10. Keeping in view the events  take-n*«~. 

place after the institution of the suit Katha. mate' partieaiaa;

the undertaking given ping MFA._""No.16<'§.f.2(j;O,':3 

amendment proposed after  as  to 31(c)
and the relief at (iii-aj:nn,'~~..r;anr_iot§_ tlovvvever, the
amendment proposed  prayer (iii-b)
requires to   to the bar of

limitation ri§ise:d"'_by"the jleajrned:.cou§nsel for the petitioner.

 _ Alrteaawhg  piamt shows that, the plaintiff
was awarecnoif   of the suit property having

beengexecuted' the defendants 1 & 2 in favour of

   Still the plaintiff did not seek the

AideCl'aratioﬁ_~vn.,v_thet".the sale deed is illegal. The alleged

 _ subseque:nt'v'events can be with regard to construction

 Dmaadce bydefendant No.3 and for the inclusion of prayer for

 a._'m.ar"iu"atory injunction being justified. As noted supra, in

if  the plaint as it stood before the amendmennkihe prayer

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with regard to the declaratory relief in respect of the_._sale

deed by defendants 1 & 2 in favour of defendant l\lo;3f'«vy'as

not there. The said prayer is sought to be  *

the proposed amendment. If, in». law  is,

required to have the sale deed s'e,t--a_sid'e before 

any claim in respect of the's_ui't._property'. a|l'ilott'e,d"--iby*';the * if

defendants 1 & 2 iri'__.favovl,.J,.r._u:'of_'defendanl:_  and
subsequently conveyed',-.w:"thei*n__vf~th.e""s'ui.té;without such a
prayer was of'_i1.p__  Realizing the
difficulty,  for amendment
of  additional prayer of
declaration "sale deed. The suit having

been instit'ut_ed_oru'  the application was filed on

 13.02.2809 i.e'.,ubeyon:d the three years period. From the

  -ri:*iad_e in the plaint, it cannot be said that, all

the.-nyecessawiayerments for granting declaratory relief in

V . respect sale deed are contained in the plaint and

.,,.:that.," addiltion of subsequent prayer for declaratory relief in

.' respect of the sale deed, is a mere formality. By

T "iriltrodiicing the prayer of declaration regaiﬁng the sale

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deed, the basis of the suit has been changed Vt-0, one

seeking the sale deed dated 13.06.2003 as iilegal.Va'n.d-.gn'u.ll

8: void and not binding on the plaintiff.::"  

circumstances, the suit with regard-.to a4'dd.iVt'i0rialprayer

(iii-b) "to declare that the il;'liega'l.A'l"sale"_deed. 

13.05.2003 executed by thle:Vg4"'defenda.nt'  "12 in"?

favour of the third defendantggis---ng'uvll  void'0-nd-ltihe same
is not binding on the v»:ta.l'<:s.=:n to have been
filed on 13.02..;'OQ9 i:."e".',"'  ..on«v:.V'i.?ai"hich application
seeking  a'ndv_'not'earlier i.e., with the
institution'Vof"=tiie;:'s;uit'   In other words, the
amendrnent Athlovugihipro'pe:rlyinade, cannot relate back to
date of   to the date of filing of the

appliiidtiean. Thetrial court has not kept in view the facts

 Vnoticedsupra"-and the impugned order being unconditional

ca!  r"  on.

Intine result, I pass the following: 

f I



ORDER

Writ petition stands allowed in part andlhthe impugned order stands modified.

I.A filed by the plaintiff under' Order '* dated 13.02.2009 stands:'»al|o§rVec:i «SiJ_l:)j.e"Ct'"ti§.-,,._t|*ie_'f condition that, plailntiff ism Vpayhii-co;Vt..h: oi Rs.;l.0,000/-- to the _V:d"efendvant."ltlo.:3/petitioner within a periodVoftwo".wee!»t.s"*frorn~today. Upon dep'o.sit/p'a'yrne'gitV_" the plaintiff be perm~itte4d5l§o_*;'.in'co:po--rate' the arnendment sought in {the to the condition that, the relief pwithiifredalrd---..t:o'4proposed prayer at para iii(b) _..shallioeueffectlivezllfrom 13.02.2009 and shall not i*e!ate.é_bacitWt'oédate of institution of the suit i.e., '_Fh~e_Edfefendants are entitled to fiie additional " written statement within 15 days from the date the copy of the amended plaint is served on their learned advocate.

f .14 v. Additionat issues, including one retating to héz*.Tof Vi.

iimitation, which arise for consideration,d,...b_e_A»téis:sed"

and the suit be tried and disposed K V' practicabie, keeping in viev§;'tim'e_ iimit_"speei'fied in the judgment passedin M4FA:i\!o.168i'/.;3,Q'1'01 it it No costs in this writ petivtien.

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