IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.20037 OF 2019 (GM-CPC) BETWEEN:
A N.SUBBANNA, S/O A.N.NARAYANAPPA, AGED ABOUT 54 YEARS, RESIDENT OF ATTURU VILLAGE, KAIWARA HOBLI, CHINTAMANI TALUK-563 125, CHIKKABALLAPURA DISTRICT. ... PETITIONER (BY SRI.B.N.ANANTHANARAYANA, ADVOCATE) AND:
A.MANJUNATH, S/O APPAJAPPA, AGED ABOUT 46 YEARS, RESIDING AT NO.328, THOOBARAHALLIPALYA, BEML LAYOUT, WHITEFIELD POST, VARTHUR MAIN ROAD, BANGALORE-560 066. ... RESPONDENT (BY SRI.R.R.DEVENDRA GOWDA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:8.4.2019 PASSED ON IA NO.14 IN O.S.NO.288/2014 PENDING ON THE FILE OF THE COURT OF THE II ADDL. SENIOR CIVIL JUDGE AND JMFC, KOLAR AS PER ANNEXURE-E TO THE W.P. AND THE SAID APPLICATION BE ORDERED TO BE DISMISSED BY ISSUE OF A WRIT AND ETC.
THIS WRIT PETITION COMING ON PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the defendant in a suit filed by the respondent herein in O.S.No.288/2014 for a decree for cancellation of sale deed is invoking the writ jurisdiction of this Court seeking to lay a challenge to the order dated 08.04.2019, a copy whereof is at Annexure-E, whereby the learned II Addl. Sr. Civil Judge, Kolar having favoured respondent’s application in I.A.No.14 filed under Order VI Rule 17 of CPC, 1908 has granted the leave to amend the plaint. The respondent having entered the caveat through his counsel, opposes the writ petition.
2. Learned counsel for the petitioner submits that the impugned order has error apparent on its face inasmuch as the leave is accorded for amending the plaint long after the trial has been accomplished contrary to mandatory prohibition enacted in the proviso to Order VI Rule 17; the application for amendment lacks bona fide; even otherwise also the amendment to introduce the Reconveyance Agreement is legally impermissible in view of the provisions of Sec.58 of the Transfer of Property Act, 1882; the learned counsel for the Caveator makes submission in justification of the impugned order.
3. Having heard the learned counsel for the petitioner and the learned counsel for the respondent and having perused the petition papers, this Court grants indulgence in the matter because:
(i) the suit of the respondent in O.S.No.288/2014; it is for a decree of cancellation of the sale deed on the assertion that it was only a mortgage by conditional sale or the like; when the matter is posted for argument, the application is moved only on the ground that liberty was accorded during the course of recording of evidence; this is too far fetched an argument advanced in justification of the impugned order; the amendment could not have been allowed after the trial of the suit had begun;
(ii) the application for amendment lacks in bona fide; no reasonable person would buy the version of the respondent that he had forgotten about the Reconveyance Agreement that is stated to be contemporaneous with the sale transaction; no prudent person in the shoes of the petitioner can be believed to have forgotten such an important transaction; and, (iii) proviso to Sec.58(c) of the Transfer of Property Act,1882 shuts out an enquiry as to whether a sale with a stipulation to reconvey the property is in fact a mortgage when such stipulation is not embodied in the same document which comprises the transaction in question; if the sale and agreement to reconvey are embodied in separate documents, then the transaction cannot amount to mortgage, whether or not the documents are executed contemporaneously as held by this Court in the case of AMIR BEE vs. THE SUB DIVISIONAL MAGISTRATE, AIR 1980 KARNATAKA 154 and by the Bombay High Court in the case of HASAM NURANI MALAK vs. MOHANSINGH, AIR 1974 BOM 136.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; application in I.A.No.14 filed by respondent under Order VI Rule 17 r/w Sec.151 of CPC,1908 stands dismissed. The observations made herein above do not influence the decision making in the suit, nor will it bar other remedy available in law to the respondent.
No costs.
Sd/- JUDGE cbc