IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION No.42969/2018 (GM - CPC) BETWEEN:
A.S.SRINIVASAN AGED ABOUT 78 YEARS, S/O LATE A SINGA IYENGAR, C/O MR.A.S.MOHAN, NO.110/A, “MYTRI ENCLAVE”, F.NO.302, 6TH MAIN, NANDAKUMAR LAYOUT, RAMANJANEYANAGARA, BENGALURU – 560 061.
... PETITIONER (BY SRI A.S.SRINIVASAN, PARTY-IN-PERSON) AND:
1. STATE BANK OF INDIA, CORPORATE CENTRE, 4TH FLOOR, STATE BANK BHAVAN, MADAM CAMA ROAD, MUMBAI – 400 021.
REPRESENTED BY ITS MANAGING DIRECTOR.
2. STATE BANK OF INDIA, PEENYA INDUSTRIAL ESTATE BRANCH, PEENYA, BENGALURU – 560 058. REPRESENTED BY ITS BRANCH MANAGER.
3. SHRI. ASDHAR HOSSAIN, C/O KARNATAKA FOOTWEAR 21, SHOPPING COMPLEX, 4TH BLOCK, JAYANAGAR, BENGALURU – 560 011.
…RESP0NDENTS (NOTICE TO R1 TO R3 IS DISPENSED WITH V/O DTD: 04.12.2018) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 16.07.2018 ORDERED ON I.A.NO.IV IN O.S.NO.2114/2014 A CERTIFIED COPY OF THE COMBINED ORDER IS HEREWITH PRODUCED AS ANNEXURE – J AND FURTHER ALLOW IA NO.IV AND PERMIT THE PLAINTIFF – PETITIONER TO AMEND THE PLAINT AND PROSECUTE THE SUIT.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Sri A.S.Srinivasan, party-in-person.
2. Petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 16.07.2018 passed by the trial Court, by which, application filed by the petitioner under Order VI Rule 17 r/w Section 151of Code of Civil Procedure as well as the application under Sections 5 and 17 of the Limitation Act read with Section 151 of Code of Civil Procedure have been rejected.
4. Facts giving raise to filing of this writ petition briefly stated are that, the petitioner has filed a suit against the respondents seeking cancellation of judgment and decree dated 16.12.1995 passed in O.S.No.10130/1985 and to award damages of Rs.1 crore.
5. The petitioner during the course of suit filed I.A.No.IV under Order VI Rule 17 read with Section 151 of Code of Civil Procedure for amendment of the plaint and also I.A.No.V under Sections 5 and 17 of the Limitation Act for condonation of delay. The aforesaid applications came to be rejected by impugned order dated 16.07.2018. In view of the above factual background, the present writ petition is filed by the petitioner.
6. The petitioner/party-in-person submitted that the trial Court has grossly rejected the applications i.e., I.A.Nos.IV and V.
7. I have considered the submission made by the petitioner/party-in-person and perused the records.
8. On perusal of the order passed by the trial Court, the trial Court after perusal of the averments made in the application for amendment has recorded the finding that in case the proposed amendment is allowed, definitely it will change the nature of suit or cause of action, because plaintiff is intending to plead defendants had filed earlier suit deliberately by concealing the facts and with mala fide intention. It is further held that the plaintiff’s averment in the application for proposed amendment in respect of money matters have no bearing on the controversy involved in the suit. It is also further held that the plaintiff has failed to prove due diligence while making the application for amendment and no application for amendment can be allowed after the trial has commenced. Similarly, the application filed by the petitioner under Sections 5 and 17 of the Limitation Act, 1963, has been rejected by the trial Court on the ground that the prayer for condonation of delay in filing the suit cannot be entertained. It is well settled in law that the provision of Section 5 of the Limitation Act, 1963, apply either to the application or an appeal and not to an original proceeding like civil suit. Therefore, the trial Court has rightly rejected the application preferred by the petitioner.
9. Even otherwise, it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423]. In the instant case, the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
10. In view of the preceding analysis, I do not find any merit in the petition. Accordingly, the same fails and is hereby dismissed.
Sd/- JUDGE PB