Karnataka High Court
Sri M Manoharan vs Sri M Govindaraju on 11 August, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 11TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.51201-51202 OF 2013 (GM-CPC)
BETWEEN:
1. Sri. M. Manoharan,
Son of Muniswamy,
Aged about 48 years,
Residing at No.12,
Balaiah Naidu Street,
Vannarpet, Viveknagar,
Bangalore - 560 047.
2. Smt. M. Shashikala,
Wife of M.Manoharan,
Aged about 35 years,
Residing at No.12,
Balaiah Naidu Street,
Vannarpet, Viveknagar,
Bangalore - 560 047.
...PETITIONERS
(By Shri. M.C.Ravi Kumar, Advocate)
AND:
1. Sri. M. Govindaraju,
2
Son of Late M. Munirathnam,
Aged about 49 years,
Residing at No.528,
Railway Quarters,
East Colony, Yelahanka,
Bangalore - 560 043.
2. Sri. N. Muralikrishna,
Son of Narayanappa,
Aged about 45 years,
Residing at No.11,
Balaiah Naidu Street,
Vannarpet, Viveknagar,
Bangalore - 560 047.
...RESPONDENTS
(By Shri. J. Imayan and Shri. M. Shivappa, Advocates)
*****
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India praying to call for the entire records on
the file of the Additional City Civil Judge on I.A.No.25 in
O.S.No.2088/2009 and also to set aside the order dated
12.8.2013 passed in O.S.No.2088/2009 vide Annexure-A in the
above suit holding that such as amendment was impermissible
in law and should not be allowed and thereby direct the court
below to delete whatever has been incorporated to the original
plaint.
These Writ Petitions coming on for Preliminary Hearing
in 'B' Group this day, the court made the following:
3
ORDER
Heard the learned Counsel for the petitioners and the learned Counsel for the respondents.
2. The petition is filed on behalf of defendants 2 and 3. Defendants 2 and 3 were originally arraigned as parties. The suit was directed against the defendant no.2 seeking the relief of specific performance of contract. It is later, on learning that the property had been sold in favour of defendants 2 and 3, that an amendment application was filed by the respondent - plaintiff seeking to incorporate an additional pleading to the effect that defendants 2 and 3 were later impleaded and the sale deed, if any, in favour of defendants 2 and 3, is not binding on the plaintiff. It is candidly admitted by the learned Counsel for the petitioners that though time was sought to file objections to the said application, there was an inadvertent statement made before the court below that there would be no objection for the application to be allowed. Consequently, the 4 application having been allowed, the amendments have been incorporated. It is that which is sought to be questioned in the present petition.
3. The learned Counsel for the petitioners would seek to canvass a legal aspect, namely, that as on the date of the application seeking amendment, any prayer as regards the sale deed in favour of defendants 2 and 3 was clearly barred by time. Therefore, even if the petitioners had indicated that they have no objections for the application being allowed, there was duty cast on the court to examine whether such relief could be permitted to be claimed, if it was, on the face of it, barred by limitation. That exercise not having been carried out, the learned Counsel would submit that the order is clearly illegal and would have to be set at naught.
4. Though the learned Counsel for the respondents would seek to justify the order on the footing that admittedly, the counsel for the petitioners had no objection to the application being allowed and therefore, the court having allowed it, on 5 examination of the merits of the application, cannot now be questioned by the petitioners.
It goes without saying that a Civil Court does not grant relief for the asking. Any relief prayed for before it would have to be examined on its merits. Even if the defendants had no objection to the application being allowed, the court was bound to examine the legality or otherwise of such a prayer made, as contended by the learned Counsel for the petitioners. Therefore, the application now having been allowed and the amendment having been incorporated, it would be necessary for the court below even now to frame an issue as regards the maintainability of such a relief insofar as the sale deed in favour of defendants 2 and 3 being set at naught or to hold that the same would not bind the plaintiff. This is necessary for the reason that as on the date of the application for amendment, the suit may have been barred in respect of such relief and hence, proceeding on the principle that any amendment allowed would date back to the suit may not apply in such cases and therefore, 6 the court would have to frame an issue and address the same notwithstanding the stage of the suit, as the law permits the court to frame and reframe issues in order to completely adjudicate the matter in dispute. Therefore, this being a legal issue, it would require the court to frame an issue specifically on this point whether the relief claimed by way of amendment by the plaintiff was barred by limitation as it does not date back to the date of the suit and the amendment application having been allowed, would not condone the delay as it were in seeking such a direction.
5. Therefore, with that observation, that there be an additional issue framed, if there is no such issue already framed, the petition is dismissed.
While the learned Counsel would also state that he has made an application before the court below even during the pendency of this writ petition seeking the recall of the order permitting amendment. That application would now be 7 redundant and need not be considered by the Trial Court in the light of the above order.
Sd/-
JUDGE nv