Karnataka High Court
Sri K Ramakrishna Bhat vs Smt Saraswathi V on 26 February, 2015
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
W.P.16888/13
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY 2015
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 16888 OF 2013 (GM-CPC)
BETWEEN:
SRI K RAMAKRISHNA BHAT
S/O K.VENKATRAMANA BHAT,
AGED ABOUT 50 YEARS,
R/AT "INCHARA", MUDIPU,
P.O.KURNADU-574 153.
BANTWAL TALUK, (D.K.)
... PETITIONER
(BY SRI. M SUDHAKAR PAI, ADV.)
AND
1. SMT SARASWATHI V
W/O V.NARAYANA BHAT,
AGED ABOUT 68 YEARS,
2. MRS. DEEPTHI.K.
W/O KRISHNA KUMAR.V.,
AGED ABOUT 27 YEARS,
BOTH ARE R/AT SRI SKANDA
ALAPE, KEMBAR ROAD, PADIL
MANGALORE-575007 (D.K.)
... RESPONDENTS
(BY SRI. K RAMABHAT, ADV.)
W.P.16888/13
-2-
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DT.1.4.2013, ON I.A.NO.XIII, IN O.S.NO.11/2009, ON
THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, BANTWAL,
D.K. (VIDE ANNX-K) TO THE WRIT PETITION; AND ETC.
THIS WRIT PETITION IS COMING ON FOR PRL.HEARING
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Defendant in O.S.No.11/2009 on the file of Sr. Civil Judge & JMFC, Bantwal, D.K., aggrieved by the order dated 1/4/2013 allowing I.A.No.13 under Order VI Rule 17 of Code of Civil Procedure, 1908, filed by the plaintiff, to amend the plaint schedule by incorporating boundaries of the suit schedule property, has presented this petition.
2. Respondents instituted the suit for specific performance of the agreement of sale dated 30/6/2006 without setting out the boundaries of the immovable property in the schedule to the plaint since in the agreement of sale, boundaries of the immovable property to be sold, was kept blank. The case of the W.P.16888/13 -3- plaintiffs was that the defendant executed the agreement of sale without disclosing the boundaries, nevertheless had agreed to convey 40 out of 50 cents of his immovable property excluding the built up house, in the balance 10 cents, for a valuable consideration of Rs.6,00,000/- and received the entire sale consideration. That suit was opposed by filing written statement interalia not denying the factum of execution of the agreement, and contending that the defendant was ready and willing to execute the sale deed and perform his part of the contract. In the premise of pleadings of parties, the Trial Court framed issues and parties entered trial. On conclusion of the trial and at the stage of arguments, plaintiffs filed I.A.No.13 under Order VI Rule 17 CPC to amend the schedule to the plaint by incorporating the boundaries, which application was opposed by filings statement of objections, contending, that in paragraph-6 of the examination in chief of DW-1, there is a specific dispute W.P.16888/13 -4- over the location of the plaint schedule property and therefore the proposed amendment would amount to a new and fresh claim; the application though filed belatedly, is with malafide motive and intention, to get over the admissions elicited in the evidence of PW-1 & PW-2 and to patch up the lacuna in the case and; that it would amount to entertaining a time barred plea. The Trial Court having regard to the pleadings of the parties and the fact that there was no denial over the execution of the agreement of sale, the suit document, coupled, with the fact that in the said agreement the boundaries of the property were kept blank and what was promised to be sold was 40 cents out of 50 cents while retaining the 10 cents where the house is located and boundaries furnished by the plaintiff, as set out in the amendment, if not correct, it is open for the defendant to furnish the correct boundaries, if any, and therefore in order to ensure complete adjudication of the dispute, allowed the I.A. by order dated 1/4/2013.
W.P.16888/13-5-
3. To a query of this Court learned counsel for the petitioner read over the averments in paragraph-7 of the written statement that the defendant was ready to execute the sale deed and perform his part of the contract, and stated that it was for the defendant to furnish the boundaries of the suit schedule property which he proposed to convey under the sale deed. Learned counsel submits that he has no instructions in that regard. If the defendant, as set out in paragraph-7 of the written statement, was ready and willing to perform his part of the contract by executing the sale deed to convey the suit schedule property with its boundaries, then it was for the defendant to furnish the boundaries and having not done so, cannot oppose the application for amendment to incorporate boundaries of the suit schedule property. If boundaries are not mentioned and if a decree is passed, it would be an unexecutable decree. It is in this context, the court below, in my considered opinion, was fully justified in W.P.16888/13 -6- allowing the application for amendment of the plaint schedule to furnish the boundaries of the plaint schedule property, by the impugned order.
Petition devoid of merit, rejected.
Sd/-
JUDGE Rd/-