IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION No.27306/2019 (GM-CPC) BETWEEN SMT BABY SAVITHRI AGED 52 YEARS D/O LATE SRI VENKATARAMAIAH W/O SRI VENKATESH R/AT NO.218, ‘B’ MAIN ROAD OLD MADRAS ROAD, CHIKKABANASAWADI (BEHIND CMR COLLEGE) BENGALURU – 560 043 ... PETITIONER (BY SRI R.KRISHNA MURTHY, ADVOCATE) AND 1. SRI YOGIRAJ AGED ABOUT 63 YEARS S/O LATE SRI YELLAPPA & LATE HANUMAKKA 2. SMT SAVITHRI @ SAVITRAMMA W/O YOGIRAJ AGED ABOUT 54 YEARS BOTH (1) & (2) RESIDENTS OF NO.29 A.K. COLONY, 9TH MAIN (OLD No.l-109) PALACE GUTTAHALLI BENGALURU – 566 003 3. SRI MUNIKRISHNAPPA S/O NINGAPPA AGED ABOUT 65 YEARS 4. SMT JANAKI W/O MUNIKRISHNAPPA AGED ABOUT 56 YEARS (3) & (4) RESPONDENTS ARE R/AT NO.38, 2ND MAIN ROAD,NHCS LAYOUT PRASHANTHANAGAR BENGALURU – 560 079 5. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE HUDSOL CIRCLE (BBMP) BENGALURU 560 002 6. THE DEPUTY COMMISSIONER (REVENUE) BRUHATH BANGALORE MAHANAGARA PALIKE HUDSOL CIRCLE (BBMP) BENGALURU – 560 002 (DEFENDANTS 7 AND 6 ARE ADDED AS PER COURT ORDER DATED 30.01.2017) ... RESPONDENTS (BY SRI G.S.RAVISHANKAR, ADVOCATE FOR C/R1) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 28.05.2019 PASSED BY LEARNED XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH NO.27), BENGALURU ON I.A.NO.26 FILED BY THE PLAINTIFF UNDER ORDER VI RULE 17 OF THE CODE OF CIVIL PROCEDURE, 1908 IN O.S.NO.6500/2010 WHICH IS SUBMTTED AS ANNEXURE-‘A’ TO THIS WRIT PETITON AND ALLOW THE SAID I.A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner being the plaintiff in the Civil Suit in O.S.No.6500/2010 is invoking the writ jurisdiction of this Court for assailing the order dated 28.05.2019 made by the learned XII Additional City Civil Judge, Bengaluru, whereby his application in I.A.No.26 filed under Order VI Rule 19 of the Code of Civil Procedure, 1908 seeking leave for amendment of the plaint, has been rejected. After service of notice, respondent No.1 having entered caveat through his counsel, opposes this writ petition.
2. Learned counsel for the petitioner argues that the impugned order is bereft of law and justice; for the explanation offered in the affidavit supporting the application for amendment, the court below ought to have granted leave; the grant of leave would not have caused any prejudice to the other side which will have the right to file the Additional Pleadings to resist the averment sought to be introduced by amendment; delay alone is not a ground for denying leave. So arguing, he seeks allowing of the writ petition.
3. Learned counsel for the Caveator-respondents opposes the writ petition contending that the amendment now sought to be made is highly belated and the explanation offered is not plausible to a mind legally trained; the amendment if allowed would change the structure of the suit to the disadvantage of the respondents; the petitioner has been dragging on the suit proceedings with one or the other application and therefore, his conduct lacks bonafide; not only he amended the Plaint without the leave of the court in the guise of amending the cause title but he refused to strike off the said amendment despite direction by the trial court and consequently, the Registry struck the same off; there is no error in the impugned order. So contending, he seeks for the dismissal of the suit.
4. Having heard the learned counsel on either side and having perused the petition papers, I am of the considered opinion that the matter does not merit indulgence of the writ Court for the following reasons:
a) The suit is of the year 2010 and the application for amendment of the Plaint nearly after eight years; the explanation offered for the delay brooked is not convincing; this apart, the amendment is founded on a 1993 sale deed obtained on the ground of fraud; thus, the very claim itself is highly time barred going by the text of Section 17 of the Limitation Act, 1963; this apart, once the trial begins, the proviso to Order VI Rule 17 of CPC, 1908 bars such applications being made, subject to exceptions into which case of the petitioner does not fit;
b) the conduct of the petitioner in amending the Plaint without the leave of the court, in the guise of amending only the cause title in the plaint and further, not striking off such unauthorized amendment despite direction of the trial court, comes in the way of granting as sought for by the petitioner; however, it is open to the trial court and also to the petitioner to complain against the conduct of his counsel to the State Bar Council for the alleged unauthorized interpolation made to the pleadings that are properties of the court;
In the above circumstances, this writ petition being devoid of merits, stands rejected.
Sd/- JUDGE KLV