IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.23330-23331 OF 2018 (GM-CPC) BETWEEN:
Smt.G.H.Rangaswamy, S/o.Late H.Halappa, Aged about 35 years, Residing at Gunderi Village, Holalkere Taluk-577 526, Chitradurga District. … Petitioner (By Sri. Siddappa.B.M, Advocate) AND:
1. Smt.R.M.Shivamma, W/o. Late Jayappa, Aged about 56 years.
2. Sri.Ashok @ Ashok Kumar, S/o. Late Jayappa, Aged about 34 years.
Both are residing at K.H.B.Colony, P&T Quarters, Holalkere Road, Chitradurga-577 501.
3. Sri.H.Halaswamy @ Halappa, S/o. Late H.Halappa, Aged about 44 years, Residing at Gunderi Village, Holalkere Taluk-577 526, Chitradurga District. … Respondents (By Sri.K.Rama Bhat, Advocate for R1 & R2 R3 served and unrepresented) - - -
These Writ Petitions are filed under Article 227 of the Constitution of India praying to quash the order passed by the Learned Additional Civil Judge, Holalkere on I.A.Nos.13 and 14 in O.S.No.38 of 2012 dated 12.03.2018 and 19.04.2018, respectively vide Annexure-E & H.
These Writ Petitions coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER Sri. Siddappa B.M., learned counsel for the petitioner.
Sri. K. Rama Bhat, learned counsel for respondent Nos.1 and 2.
2. The petitions are admitted for hearing. With the consent of learned Counsel for the parties, the matters are heard finally.
3. In these writ petitions filed under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 19.4.2018 by which the applications preferred by the petitioner for amendment of the written statement as well as for framing of additional issues have been rejected by the trial Court.
4. Facts giving rise to filing of these writ petitions briefly stated are that respondent Nos.1 and 2 have filed a suit for declaration and possession on the ground that agreement of sale was executed in favour of the petitioner on 15.7.2006 and the petitioner did not get the sale deed registered in his favour. Respondent Nos.1 and 2, after execution of the sale deed, took possession of the property and taking undue advantage of the same, got changed the katha in their favour. The petitioner filed a suit for declaration and possession. After the plaintiffs had adduced their evidence, the petitioner filed an application for amendment of the written statement by which counter claim was sought to be introduced. Along with that, an application for framing additional issue that civil suit is barred by limitation was also filed. The trial Court by the impugned orders dated 12.3.2018 and 19.4.2018 has rejected both the applications.
5. Learned counsel for the petitioner has submitted that the impugned order is bad in law insofar as it relates to the application for framing of additional issues. It is further submitted that while dealing with the application for framing additional issues, the trial Court has recorded the finding that the suit is not barred by limitation. Therefore, the impugned order in so far as rejecting the application for additional issues cannot be sustained in law.
6. Learned counsel for respondent Nos.1 and 2 have supported the impugned order passed by the trial Court.
7. I have considered the submissions made by learned counsel for the parties and have perused the records.
8. Admittedly, after the plaintiffs had closed their evidence, an application for amendment was filed by which the counter claim was sought to be set up. No reasons are assigned in the affidavit accompanying the application as to why notwithstanding exercise of the due diligence, the said application for amendment was not filed at an earlier point of time. Therefore, the trial Court rejected the application for amendment of the written statement filed by the petitioner herein.
9. However, the order of the trial Court dated 12.3.2018 insofar as it pertains to the application for framing issues is concerned, it suffers an error apparent on the face of the record. While dealing with the application for framing issues, the trial Court has recorded the finding on merits of the case that the suit is not barred by limitation. Therefore, the impugned order insofar as it relates to framing of additional issues suffers from an error apparent on the face of the record and the same is accordingly quashed. To the aforesaid extent, the trial Court is directed to frame additional issue, with regard to the limitation, and proceed with the trial expeditiously.
Accordingly, the petitions are disposed of.
Sd/- JUDGE Cs/- ct:rg