IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.56281 OF 2017 (GM-CPC) BETWEEN Smt. Jayamma, W/o. Late R.Ramanna, Aged about 65 years, R/at No.9, 3rd Cross, Papanna Block, Ganganagar, Bengaluru-560032.
…Petitioner (By Sri. Vijaya Kumar K., Advocate) AND 1. Sri. Munendranath, Since dead by his LRs., 1(a) Sri. Kumar, S/o. Late Munendranath, Aged about 37 years, 1(b) Sri. Satish, S/o. Late Munendranath, Aged about 35 years, Respondent No.1(a) & 1(b) Are residents of Amruthalli Village, Yalahanka Hobli, Bengaluru-560092.
2. Sri. Rajanna, Since dead by his LRs., 2(a) Smt. Leelavathi, D/o. Late Rajanna, W/o. Shivalingaiah, Major, 2(b) Smt. Mangala D/o. Late Rajanna, W/o. Anjanappa, Major, 2(c) Sri. Shivalingaiah, Son-in-Law of Late Rajanna, Major.
Respondents 2(a) to 2(c) are R/at No.2, Amruthalli Village, Sreerampura Main Road, Hoysala Layout, Yelahanka Hobli, Bengaluru-560092.
3. Sri. C.S.Nagendra, S/o. C.S.Sathyanarayana Shetty, Aged about 38 years, R/at No.2, Amruthalli Village, Sreerampura Main Road, Hoysala Layout, Yelahanka Hobli, Bengaluru-560092.
4. Sri. Anjanappa, Fathers name not know to petitioner, Major, R/at No.2/1, 17th Cross, Hoysala Layout, Sreerampura Main Road, Amruthalli Village, Yelahanka Hobli, Bengaluru-560092.
(By Sri. S.Nagesh, Advocate for R2(a & b), R1(a), R1(b), R2(c), R3 & R4 - served) …Respondents This Writ Petition is filed under Article 227 of the Constitution of India praying to call for records in O.S.No.1957/2002 pending on the file of the III Additional City Civil and Sessions Judge, (CCH-25) and set aside the order dated 21.11.2017 passed on I.A.No.27 filed by the petitioner under Order VI Rule 17 of the Code of Civil Procedure (impugned as Annx-A) and allow the said IA No.27.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the court made the following:
ORDER Heard the petitioner’s counsel and the counsel for respondents 2(a) and (b).
2. Petitioner sought amendment to the plaint by filing an application under Order VI Rule 17 CPC as per I.A.27. Plaintiff’s suit is to declare the sale deed executed by the first defendant in favour of second defendant on 30.4.1999 is invalid and for permanent injunction. At a stage when the case was posted for cross-examination of DW1, the plaintiff came up with this application to claim the relief of specific performance based on an agreement dated 8.8.1990 and to clear certain facts as mentioned in the proposed paragraphs 9(a), 9(b) and 9(c). The trial court dismissed this application mainly observing that the proposed amendment will divest the right accrued to the defendant and it will have the effect of recalling her own pleading.
3. I do not think that the trial court has committed an error in dismissing the application. Actually, at the inception the plaintiff should have filed a suit for specific performance. If the amendment is granted, the nature of the suit will totally change. The plaintiff can file a separate suit. Therefore, this Writ Petition deserves to be dismissed and accordingly it is dismissed. At this stage, the petitioner’s counsel seeks permission to withdraw the suit to enable the plaintiff to file another suit. If an application under Order XXIII Rule 1 CPC is made by the plaintiff in the trial court, the same may be considered by the trial court in accordance with law.
Sd/- JUDGE ckl