IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NOS.57388/2016 & 57389/2016 (GM-CPC) BETWEEN:
B. MAHADEVAIAH, S/O LATE BASAPPA, AGED ABOUT 66 YEARS, R/AT GANIGARAPALYA VILLAGE, UTTARAHALLI HOBLI, TALAGHATTAPURA POST, BANGALORE SOUTH TALUK , BANGALORE DISTRICT-560109. ... PETITIONER (BY SRI. S.K.V.CHALAPATHY SENIOR COUNSEL FOR SRI.V.RAMESH BABU ADV., FOR PETITIONER) AND:
SMT.B.S.LEELAVATHI, SINCE DEAD BY HER LR B.S.NARAHARI (B.S.N.HARI), S/O LATE B.N.SATHYANNA, AGED ABOUT 61 YEARS, R/AT NO.473, 9TH CROSS, 1ST BLOCK, JAYANAGAR, BANGALORE-560011. ... RESPONDENT (BY SMT.KIMAYA KULKARNI A/W SMT.S.R.ANURADHA ADV. FOR RESPONDENT) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDER DATED 05.11.2016 PASSED ON I.A.S. 19 AND 20 IN O.S.1455/2006 ON THE FILE OF THE PRL.SR.CIVIL JUDGE, BANGALORE RURAL DISTRICT AT ANNEX-A.
THESE WRIT PETITIONS COMING ON FOR ‘PRELIMINARY HEARING’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff filed these present writ petitions against the order dated 05.11.2016 on I.A.Nos.19&20 in O.S.No.1455/2006, rejecting the applications filed under Order VI Rule 17 of Civil Procedure Code for amendment of plaint and I.A.No.20 filed under Order 1 Rule 10 of Civil Procedure Code for impleading some third parties as proposed defendants.
2. The plaintiff has filed a suit for declaration of title in respect of suit schedule property, to declare that the survey No. 25 is the property of plaintiff and survey No.26 is the property of the defendant and sub-number if any assigned to the same as per the possession of the property held by the plaintiff’s predecessor Siddappa and defendant predecessor Narasappa and for permanent injunction in respect of suit schedule property, restrain the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the schedule property from alienating or encumbering or creating any charges over the schedule property by way of permanent injunction and further declare that plaintiff is the absolute owner of the suit schedule property having all right, title and interest and possession over the same.
3. The defendant has filed written statement contending that the suit of the plaintiff is not maintainable as plaintiff has not sought for appropriate reliefs and same is imaginary. The plaintiff has no legal right to file the present suit hence, sought for dismissal of the suit.
4. When the matter was posted for arguments, the plaintiff has filed I.A.Nos.19 under Order VI Rule 17 of Civil Procedure Code for amendment of plaint that to add para 27(a) i.e., due to the mistake of the parties in the sale deed dated 16.01.1975 executed by Smt.Akkamma in favour Muni Bathappa, in the schedule, the survey number of the land is shown as 26 instead of survey number 25. Said mistake has already been corrected in the earlier sale deed executed in favour of Smt.Akkamma and I.A.No.20 filed under Order 1 Rule 10 of Civil Procedure Code for impleading proposed defendants who are necessary and proper parties because the sale deed which they have executed in favour of the plaintiff will have to be rectified. Said applications were opposed by the defendants. On 05.11.2016 the trial Court rejected both I.A.Nos.19 and 20. Hence, petitioner filed these writ petitions.
5. I have heard learned counsel for the parties to the lis.
6. Sri.S.K.V.Chalapathy, learned senior counsel for the petitioner has contended that the rejection of I.A.Nos.19 and 20 is erroneous and contrary to the material on record. He would further contend that absolutely there is no reason assigned to reject the application. Therefore, impugned order cannot be sustained.
7. Per contra, Mrs.Kimaya Kulkarni along with Mrs.Anuradha vehemently contended that I.A.NO.19 filed under Order VI Rule 17 of Civil Procedure Code for amendment of plaint and I.A.No.20 filed under Order 1 Rule 10 of Civil Procedure Code for impleading proposed defendants are not maintainable when the matter was posted for arguments, plaintiff filed these applications which are not maintainable. Therefore, they sought to dismissed the writ petitions.
8. Having heard the learned counsel for both the parties, it is undisputed facts that the plaintiff filed a suit for permanent injunction. Defendant filed written statement denying the plaint averments. When the matter was posted for arguments, I.A.Nos.19 and 20 were filed by the plaintiff and same were opposed by the defendant. Unfortunately, the trial Court without assigning any reason, rejected both the applications only on the ground that after taking several adjournment for arguments, these applications are filed. The trial Court without assigning proper reason rejected both the application which is not sustainable in Law.
9. Therefore, writ petitions filed by the petitioner are allowed and the impugned order dated 05.11.2016 on I.A.Nos.19 and 20 are set-aside and matter is remitted back to trial Court for fresh consideration.
10. The Trial Court is directed to pass appropriate orders on I.A.Nos.19 and 20 in accordance with law after considering objections of defendant within a period of one month from the date of receipt of copy of this order.
11. The trial Court shall take into consideration that the suit is of the year-2006 and shall expedite with the suit in accordance with Law .
Sd/- JUDGE JS