IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 42253 OF 2017 (GM-CPC) BETWEEN:
K.H.SOMASHEKARAPPA, S/O SRI KESARAMADU HUCHANNA, AGED ABOUT 51 YEARS, ADMINISTRATOR, R/A SOMEKATTE MUTT, B H ROAD, TUMAKURU-572102.
… PETITIONER (BY SRI. UMESH MOOLIMANI, FOR SRI. S V PRAKASH, ADVOCATE) AND:
SRI. SRI CHIDGHANASWAMYGALU AGED ABOUT64 YEARS S/O LATE SRI NANJUNDARADHYA LEGAL REPRESENTATIVE OF LATE GURUBASAWARAJASWAMY GANJAM MUTT NO.5/6, 3RD CROSS, BELI BASAVANA LANE, MAMULPET, BENGALURU-560053 … RESPONDENT (BY SRI. N K SIDDESWARA, ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 01.09.2017 PASSED BY THE COURT OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU ALLOWING THE APPLICATION SEEKING AMENDMENT OF PLAINT IN O.S.NO. 32/2010 PRODUCED AS ANNEXURE –E TO THE W.P. AND ETC., THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner being the defendant in a declaration suit in O.S.No.32/2010 is invoking the writ jurisdiction of this Court for assailing the order dated 01.09.2017 a copy whereof is at Annexure-E whereby the learned First Additional Senior Civil Judge, Tumakuru, having allowed application filed under Order VI Rule 17 of CPC, 1908, read with section 151 of CPC, 1908 has granted leave to amend the plaint. After service of notice, the respondent – plaintiff having entered appearance through his counsel, resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, this Court declines to grant indulgence because:
(a) the amendment now allowed is a pre-trial amendment of the pleadings and it is open to the respondent to resist the amended pleadings by filing additional Written Statement, if any;
(b) the other reason for not granting indulgence in the matter is that the petitioner has got a deferred alternative remedy under Section 105 read with Order XLIII Rule 1A of the amended Code, in the sense, that he can make the impugned order a ground for laying a challenge to the decree if & when made adverse to his interest.
Writ petition is disposed off with the above observations.
No costs.
Sd/- JUDGE Bsv