Karnataka High Court
Sri. C. Lakshminarayana vs Sri. N. Narasimhaiah on 17 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1306, 2020 (3) AKR 80
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.40094 OF 2019 (GM-CPC)
Between:
SRI.C.LAKSHMINARAYANA
S/O. CHIKANARASAIAH @ CHIKKANNA
AGED ABOUT 56 YEARS
RESIDING AT NO.557
12TH CROSS, 12TH MAIN
BHARATHNAGAR, 2ND STAGE
BANGALORE-560 091.
... PETITIONER
(BY SRI.INDU SHEKAR B.T., ADVOCATE)
AND:
1. SRI. N. NARASIMHAIAH
S/O. NARASIMHAIAH
AGED ABOUT 70 YEARS
2. SRI. RAMAKRISHNAPPA.N.
S/O. NARASIMHAIAH
AGED ABOUT 47 YEARS
3. SRI. CHANDRASHEKAR.N.
S/O. NARASIMHAIAH
AGED ABOUT 44 YEARS
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4. SRI. PRAKASH.N.
S/O. NARASIMHAIAH
AGED ABOUT 39 YEARS
5. SRI. NARASIMHAMURTHY.N.
S/O. NARASIMHAIAH
AGED ABOUT 40 YEARS
6. SRI. VIJAYAKUMAR.N.
S/O. NARASIMHAIAH
AGED ABUT 35 YEARS
RESPONDENT NOS. 1 TO 6 ARE RESIDING
AT NO.84, CHIKKANNASWAMY NILAYA
SEA COLLEGE ROAD, KODAGEHALLI
MAIN ROAD, 4TH CROSS, MUNESHWARA
BADAVANE, BANGALORE-560 036.
7. SRI CHIKKANARASIMHAIAH @ RAJU
S/O. LATE GANGANARASAIAH
AGED ABOUT 56 YEARS
8. SMT. KARIYAMMA
W/O. LATE GANGANARASAIAH
AGED ABOUT 74 YEARS
RESPONDENT NOS. 7 AND 8 ARE
RESIDENTS OF ALAMMANAPALYA VILLAGE
HAMLET OF AJJANAHALLI
THAVAREKERE HOBLI
BANGALORE SOUTH TALUK
PIN: 562 120.
... RESPONDENTS
(BY SRI. SHASHIDHARA.H.N., ADVOCATE FOR
CAVEAT R7 & R8)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS IN O.S.NO.327/2015 PENDING ON THE
FILE OF LEARNED II ADDITIONAL CIVIL JUDGE AT MAGADI
AND SET ASIDE/QUASH THE ORDER DTD. 18.07.2019 FOR
HAVING DISMISSED THE I.A.NO.3 FILED BY THE
PETITIONER PRODUCED UNDER ANNEXURE-A AND
THEREBY ALLOW THE APPLICATION AT I.ANO.3 FILED
BEFORE THE TRIAL COURT BY THE PETITIONERS HEREIN
AND PERMIT THE PETITIONER TO AMEND THE PLAINT AND
ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present writ petition is filed by the plaintiff aggrieved by the order passed on I.A.No.3 by II Additional Civil Judge & JMFC, Magadi dated 18.07.2015 on an application filed under Order VI Rule 17 read with Section 151 of CPC to incorporate certain amendment in the plaint. After the objections were filed to the said application and having heard the parties, the Trial Court rejected the application for amendment.
2. The learned counsel for the petitioner submits that he is seeking amendment only with regard to the 4 boundaries in the schedule of the plaint wherein he wants to bring new insertions with regard to the subsequent purchaser and to delete part of the boundaries.
3. The learned counsel for the petitioner submits that the Trial Court has not considered the entire facts of the case and has dismissed the application by an illegal, frivolous and perverse order.
4. It is also the case of petitioner that the said amendment would not change the nature of the suit nor the cause of action and it will not also take away the rights of the parties and therefore, he strenuously argues that the impugned order dismissing his application for amendment is not sustainable in law.
5. Per contra, the learned counsel for caveat respondent Nos. 7 and 8 submits that the petitioner has not brought the true facts before the Court and has filed this application at belated stage pursuant to the recording of evidence of PW.1 and cross examination of PW.1. He 5 also submits that it is admitted by PW.1 that at no point of time, the respondent Nos.7 and 8 interfered with the peaceful possession and enjoyment of the suit schedule properties. However, the learned counsel for caveat respondent Nos. 7 and 8 stated the provisions of Order VI Rule 17 read with Section 151 of CPC including the proviso to Order VI Rule 17, does not give scope for entertaining amendment once the trial commences which reads as under:
"17. Amendment of pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
6The above provision is clear that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that the party could not have raised the matter before the commencement of trial.
6. The learned counsel for caveat respondent Nos. 7 and 8 relies on the judgment in case of J.Samuel and Others Versus Gattu Mahesh and Others reported in (2012) 2 Supreme Court Cases 300 wherein the Hon'ble Supreme Court has categorically stated in paragraph Nos. 20, 21 and 22 which reads as under:
"20. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.
21. In the given facts, there is a clear lack of "due diligence" and the mistake committed certainly does not come within 7 the preview of a typographical error. The term "typographical error" is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
22. The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed 8 by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.
7. It is a specific case of the petitioner that the amendment i.e. sought for is due to the typographical error. The learned counsel for the caveat respondent Nos. 7 and 8 has distinguished the definition of typographical error so sought to be brought about by the petitioner saying that there was no typographical error in the present case as the petitioner has shown clear lack of due diligence and has not incorporated the said amendment which was available to him at the time of filing of the suit and he submits that the name of subsequent purchaser so sought to be brought in the boundary had purchased somewhere in the year 2014 which is prior to the filing of the suit. Therefore, he seeks for dismissal of the writ petition. 9
8. As could be seen, the Trial Court has rejected the application based on a reasoned order after considering all the aspects canvassed by the learned counsel for the petitioner, which is apparent on the face of record that the petitioner has not substantiated any reason or cause for delay in filing the application seeking amendment.
9. It is relevant to note that in agricultural properties, the boundaries to the schedule plays a major role in survey number of the property and therefore, in view of the provisions of Order VI Rule 17 where there is an embargo that no application shall be allowed after the trial is commenced unless there is due diligence which is shown by the parties seeking for such amendment and it is also to be noted that such prayer for amendment should be taken into consideration having regard to any prejudice that could be caused to the other side. The petitioner cannot seek amendment as a matter of right and nor does 10 the Court have absolute discretion of amendment in view of the proviso to Order VI Rule 17.
10. It is also necessary to note here that any belated application for amendment if allowed, would change the nature and character in the suit and the same would lead to prejudice to the other side.
11. Therefore, in my view since this is only a suit for injunction and no comprehensive relief is sought. The petitioner should have been more careful and more diligent in incorporating the correct schedule of the boundaries to the suit schedule properties at the time of filing the suit or prior to commencement of trial. Moreover, the petitioner has not provided satisfactory explanation with regard to delay in filing the application for amendment.
12. In view of the above finding, I do not find any cogent reasons to interfere with the order passed by the Trial Court.
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Accordingly, the writ petition is dismissed.
Sd/-
JUDGE SSD