IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.Nos.16378-16382/2018 (GM-CPC) BETWEEN:
1. Smt.Lakshmamma Aged about 65 years, W/o. late Rajanna 2. Sri.Jaiprakash.R Aged about 49 years, S/o. late Rajanna 3. Sri.Nagaraj Aged about 44years, S/o. late Rajanna 4. Smt.Uma Aged about 42 years, S/o. late Rajanna 5. Smt.Varmalakshmi Aged about 40 years, D/o. late Rajanna 6. Sri.Satish Aged about 38 years, S/o. late Rajanna 7. Sri.Manjunath Aged about 38 years, S/o. late Rajanna 8. Sri.Raghu Aged about 31 years, S/o. late Rajanna 9. Smt.Geetha Aged about 29 years, D/o. late Rajanna All are residing at No.276,Peenya 1st Block, 1st Stage, B.B.M.P.
Ward No.28, 1st Cross, KIADB, Bengaluru – 560 058 …Petitioners (By Sri.C.Krishnegowda, Advocate) AND:
Smt.Kanthabai W/o.Sri.Srichand Banadi, Aged about 61 years, R/at No.11/2, 26th Cross, Cubbonpete, Chamarajapete Post, Bengaluru – 560 002 …Respondent (By Sri.V.N.Shankare Gowda, Advocate) These Writ Petitions are filed under Article 227 of the Constitution of India praying to call for records in O.S.No.9/2015 pending on the file of the 41st Additional City Civil and Sessions Judge, Bengaluru; quash the impugned order dated 19.03.2018 passed by the 41st Additional City Civil and Sessions Judge Court, Bengaluru in O.S.No.9/2015 on the application of the petitioners filed under Order VI Rule 17 read with Section 151 of CPC vide Annexure-A and consequently allow the application of the petitioners for amendment of their written statement and etc., These Writ Petitions coming on for Orders, this day, the Court made the following:
O R D E R The defendants filed these writ petitions against the order dated 19.03.2018 on I.A. under Order VI Rule 17 read with Section 151 of CPC made in O.S.No.9/2015 rejecting the application filed by the defendants for amendment of written statement.
2. The respondent who is the plaintiff before the trial Court filed suit for recovery of Rs.17,83,315/- contending that the plaintiff agreed to purchase the schedule property for total sale consideration amount of Rs.15,50,000/- and paid Rs.1,00,000/- as advance to the defendants on 15.03.2010. Thereafter, the defendants executed the written sale agreement dated 06.05.2010 in favour of the plaintiff. Further, in the agreement defendant No.1 signed as 1st party of the agreement and rest of the defendants signed as consent persons and on the date of the agreement, they have received sale consideration amount of Rs.3,00,000/-. Thereafter, the plaintiff has approached the defendants expressing his willingness to get registered sale deed and ultimately the defendant No.1 issued a cheque bearing No.147024 for Rs.15,00,000/- drawn on Vijaya Bank, Peenya Branch, Bengaluru, towards repayment of received post sale consideration amount under the said written sale agreement by way of terminating the said agreement and requested the plaintiff to accept the same. The plaintiff considered the same, accepted the said cheque and presented the same through his banker, viz., Allahabad Bank, Bengaluru, on 02.01.2014, for its encashment, but it was dishonoured by the defendants’ banker on 03.01.2014 with an endorsement of “insufficient funds” and etc., Therefore, suit filed for recovery of money.
3. The defendant No.1 filed the written statement denied the plaint averments and contended that he has not issued the said cheque and sought for dismissal of the suit. The defendant Nos.2 to 9 have adopted the statement made by the defendant No.1 on 27.02.2015.
4. Thereafter when the matter was posted for cross examination of PW1, at that stage the defendants filed an application under Order VI Rule 17 read with Section 151 of CPC to amend paragraph 14(a) after paragraph 14 to the effect that defendant No.1 has not at all issued the cheque bearing No.147024 drawn on Vijaya Bank, Peenya Branch, Bengaluru on 02.12.2013 to the plaintiff for Rs.15,00,000/- towards repayment of received post sale consideration amount by terminating the agreement as stated by the plaintiff, the said cheque along with other cheques which belonged to the defendant No.1 were lost long back and after coming to the knowledge of the same, defendant No.1 gave police complaint to the jurisdictional Peenya Police on 08.02.2014 and made paper publication in Hosa Digantha on 25.03.2014, till today the said cheques were not ascertained and plaintiff misused one of the cheque with an intention to give unwanted trouble to the defendant No.1. The said application was opposed by the plaintiff and contended that the application is filed at a belated stage after lapse of two years seven months and sought for dismissal of the application.
5. The trail Court considering the application and objections by the impugned order dated 19.03.2018 rejected the application. Hence, the present writ petitions are filed.
6. I have heard the learned counsel for the parties.
7. Sri.C.Krishnegowda, learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the application filed by the defendants for amendment of written statement is erroneous and contrary to law and liable to be quashed. He further contended that the defendant No.1 who is aged about 65 years as on the date of filing the original written statement, she has forgotten the fact that she has lost the cheque bearing No. 147024 along with other cheques, the same was not brought to the notice of the learned counsel while filing the written statement on 07.02.2015, the trial Court ought to allow the application. He would further contend that merely allowing the application will not prejudice the case of the plaintiff, nor change the character of the suit and the application filed for amendment sought is only to the narrate the facts. Therefore, he sought to allow these writ petitions.
8. Per contra, Sri.V.N.Shankare Gowda, learned counsel for the respondent sought to justify the impugned order and contended that the application filed after commencement of the Trial is not permissible and amendment is virtually to withdraw the admissions made in the original written statement. The cheque issued by the defendant No.1 on 02.01.2014 for its encashment which came to be dishonoured on 03.01.2014 and legal notice was issued on 09.01.2014, no reply filed even though the written statement came to be filed on 07.02.2015, there was not even a whisper about the missing of the disputed cheque and other cheques, even though it was specifically contended by the plaintiff that the cheque issued by the defendant No.1 was dishonoured, having totally denied the plaint averments in the written statement by way of amendment, the defendants are introducing altogether new case. Therefore, he sought to dismiss these writ petitions.
9. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff filed the suit for recovery of Rs.17,83,315/- based on the alleged agreement entered into between the parties and on the basis of the cheque issued by the defendant No.1 for repayment of received post sale consideration, the cheque presented by the plaintiff bearing No.147024 for Rs.15,00,000/- came to be dishonoured by the defendants’ banker on 03.01.2014 with an endorsement of “insufficient funds”, the same is disputed by the defendant’s in the written statement and by way of amendment the defendants want to assert that the alleged cheque was not issued in favour of the plaintiff at any time but the disputed cheque and other cheques were lost and therefore, a police complaint was lodged on 08.02.2014.
10. The trial Court considering the application and objections by the impugned order recorded a finding that the suit is filed for recovery of money and when the case was posted for cross examination, the present application came to be filed for amendment which is not permissible after commencement of the trial. It is further recorded a finding that it is the case of the plaintiff that the defendants are the absolute owners of the suit schedule property and had entered into an agreement of sale where the defendants agreed to sell the suit schedule property for Rs.15,50,000/- and received the advance sale consideration of Rs.1,00,000/- and again received the amount of Rs.8,00,000/- by way of cheque. However, the case of the plaintiff that on 02.12.2013 the defendants expressed their unwillingness to execute the sale deed with an intention to retain the suit schedule property and issued a cheque bearing No.147024 for Rs.15,00,000/- drawn on Vijaya Bank, Peenya Branch, Bengaluru. The plaintiff accepted the said cheque and presented the same through his banker and the same was dishonoured as “insufficient funds”. The defendant No.1 in the written statement simply denied all the averments including issuance of cheque and dishonour of cheque by way of application for amendment they want to introduce altogether a new case that defendant No.1 lost the disputed cheque alongwith other cheques and lodged a police complaint, if the application is allowed it is nothing but introducing a new case, withdrawing the admission made in the original written statement. Therefore, the application came to be rejected.
11. The material on record clearly depicts that according to the plaintiff the defendant No.1 issued a cheque on 02.01.2014 which came to be dishonoured on 03.01.2014 and legal notice was issued by the plaintiff on 09.01.2014 and no reply was given. Therefore, a suit came to be filed. The defendants filed the written statement on 07.02.2015, in the entire written statement except their denial of issuance and dishonour of cheque by defendant No.1 has not taken any defence. By way of amendment, now the defendants disputed the cheque and other cheques which are said to be issued in the year 2013 are lost, therefore, complaint has been lodged on 08.02.2014 and the present application filed clearly indicates that it is only after thought and the amendment sought is altogether new case which is impermissible, the trial Court considering the entire material on record rightly rejected the application and the same is in accordance with law.
12. In view of the aforesaid reasons, the impugned order passed by the trial Court in rejecting the application filed by the defendants-petitioners herein is just and proper. Petitioners have not made out any good ground to interfere with the same in exercise of power under Article 227 of Constitution of India.
Accordingly, these writ petitions are dismissed.
Sd/- JUDGE KPS