IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION No.26965/2017 (GM-CPC) BETWEEN M.KALAVATHI D/O LATE S.MUNISWAMY AGED ABOUT 40 YEARS R/AT NO.38, 15TH CROSS I BLOCK, R.T.NAGAR BENGALURU – 560 032 ... PETITIONER (BY SRI NATARAJ G., ADVOCATE) AND M. RAVIKUMAR D/O LATE S.MUNISWAMY SINCE DEAD BY HIS LR SMT.DHANALAKSHMI AGED ABUT 48 YEARS R/AT NO.648/C, 3RD MAIN ROAD MANJUNATHANAGAR, RAJAJI NAGAR BENGALURU – 560 010 ... RESPONDENT (BY SRI RAMACHANDRA R.NAIK, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY XXIV ADDITIONAL CITY CIVIL & SESSIONS JUDGE AT BENGALURU (CCH-7), ON I.A.NO.3 FILED UNDER ORDER VI RULE 17 R/W SECTION 151 OF CPC IN O.S.NO.6527/2012 VIDE ITS ORDER DATED 31.05.2017 (ANNEXURE-‘A’) AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner being the plaintiff in a partition suit in O.S.No.6527/2012 is knocking at the doors of Writ Court for assailing the order dated 31.05.2017, a copy whereof is at Annexure-‘A’ whereby the learned XXIV Additional City Civil Judge, Bengaluru (CCH-7) having rejected her application in I.A.No.3 filed under Order VI Rule 17 of Code of Civil Procedure, 1908 has denied leave to amend the plaint. After service of notice, the respondent having entered appearance through his counsel resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers this Court is of the considered opinion that the reprieve has to be granted to the petitioner for the following reasons:
a) the suit in O.S.No.6527/2012 seeking decree for partition and separate possession of the subject property was filed on 10.09.2012; after service of notice the respondent-defendant has filed his Written Statement on 06.03.2014 mentioning about the subject Release Deed dated 29.03.2012; the petitioner had filed the application for seeking leave to amend the plaint way back on 13.06.2014 when the trial was yet to commence; thus the application is filed bonafide and before the trial began, although the impugned order is made long thereafter;
b) the petitioner wants to avoid the subject Release and therefore she seeks to introduce the grounds for avoiding the same by way of amendment; the Court below has gone into the very validity of Release Deed which was not permissible at the stage when the application for amendment was being considered; and, c) the reasoning of the Court below that allowing such amendment would result into change in nature of suit and further it would take away the valuable right that has accrued to the defendant appears to be too farfetched; any amendment would result into some change in the nature of the proceedings is true; what the Court has to see is not just the change but its enormity to the disadvantage of the other side; this having not been done, there is an error apparent on the face of the record.
In the above circumstances, this writ petition succeeds; impugned order is set at naught; petitioner’s application in I.A.No.3 filed under Order VI Rule 17 of CPC, 1908 having been favoured, leave is accorded to amend the plaint as sought for. Petitioner to file the amended plaint within four weeks whereupon it is open to the respondent to file his additional Written Statement if any, within the next four weeks.
The petitioner shall pay a cost of Rs,.3,000/- (Rupees Three Thousand) only to the respondent within one month or on the next date of hearing of the suit, whichever is later, failing which the impugned order now quashed shall stand resurrected.
Sd/- JUDGE KLV