IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.49412 OF 2015 (GM-CPC) BETWEEN 1. K.S.Dasappa, Aged about 84 years, (Wrongly shown his age As 58 years in cause title Of O.S.No.184/2009) S/o. Late Kenjadiyappa 2. Sri. Jaganmurthy, Aged about 50 years, S/o. K.S.Dasappa, Both are residing at Vijayanagar Extension, Ushadevi-Hanumantha Reddy- Building, Near Railway Cross, Chitradurga-577501.
(By Sri. K.K.Vasanth, Advocate) AND Smt. Lakshmakka, Aged about 56 years, W/o. Sri. Siddappa, R/o. Ayitholu, G.R.Hally Mujure, …Petitioners Chitradurga Taluk, Pin-577501.
(By Sri. M.T.Jagan Mohan, Advocate) …Respondent This Writ Petition is filed under article 227 of the Constitution of India, praying to call for records in O.S.No.184/2009 on the file of II Additional Civil Judge and JMFC at Chitradurga and etc.
This Writ Petition coming on for orders, this day, the Court made the following :
ORDER Heard the petitioners’ counsel and the respondent’s counsel on merits of this petition at the stage of considering I.A.1/18.
2. The petitioners are the defendants in the suit O.S.No.184/2005 on the file of 2nd Addl. Civil Judge, Jr.Dn., at Chitradurga. It is a suit for specific performance filed by the respondent. The petitioners filed the written statement and thereafter they made an application I.A.No.7 for amending the written statement to plead certain facts. The trial court dismissed the said application assigning the reasons that in written statement the defendants have already stated that they are ready to return the earnest money with interest and therefore there was need to amend the written statement by pleading new set of facts.
3. The learned counsel for the petitioners submits that the petitioners might have pleaded in the written statement that they are ready to return the earnest money to the respondent. They want to plead further by amending the written statement for the purpose of explaining the hardship that they are going to face in case suit for specific performance is decreed. The respondents being the defendants in the suit for specific performance have the right to plead with regard to hardship and therefore the trial court should have granted the amendment.
4. The learned counsel for the respondent submits that the petitioners have already pleaded about hardship in the written statement and rightly the trial court has come to conclusion to deny permission to amend the written statement.
5. Having gone through the proposed amendment it has to be stated that all that the petitioners want to say is that the children of 1st petitioner are also co-parceners in the joint family property, that the 1st petitioner is aged about 84 years and is not in a position to move about because of physical disability and weakness due to old age and all the lands are being looked after by the 2nd petitioner. The entire agricultural income is being shared by the 2nd defendant and his two sisters. He has no other source of income and therefore in case suit for specific performance is decreed, they will be put to lot of hardship. If this proposed amendment is seen, I do not think that the interest of the respondent/plaintiff will be affected in any way. In a suit for specific performance, if the court comes to conclusion that execution of the agreement is proved and the plaintiff has proved his readiness and willingness, it cannot grant the decree for specific performance without examining the entire case within the scope of Section 20 of the Act. The hardship that the defendant faces in case suit is decreed has to be considered by the trial court. This being the position, I do not think that the interest of the plaintiff will be affected if written statement is amended, rather they can cross- examine the defendants on the proposed amendment. Without assigning proper reasons, the trial court simply rejected the application which in my opinion is illegal and therefore it needs to be set aside. Hence the following order:
i. Writ petition is allowed.
ii. The order dated 30th September, 2015 on I.A.No.7 in O.S.No.184/2009 is set aside. The said application is allowed.
iii. The petitioners are permitted to carry out amendment to the written statement.
Sd/- JUDGE sd