IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.19950 OF 2019 (GM-CPC) BETWEEN:
1. MR. RAVI AGARWAL AGED ABOUT 37 YEARS S/O VISHNU AGARWAL NO 256, 2ND FLOOR KARTHIKNAGAR 3RD CROSS BANGALORE - 560034 2. MR KUSHAL AGARWAL AGED ABOUT 30 YEARS S/O VISHNU AGARWAL NO 8-2-684/250 ROAD NO 12, MLA COLONY ACB HEAD QUARTERS BANJARA HILLS, KHAIRTABAD HYDERABAD, AP – 500 036 ... PETITIONERS (BY MISS.NAVYA SHEKHAR FOR SRI S.V.SRINIVAS, ADVOCATE) AND:
1. MRS D VIJAYALAKSHMI AGED ABOUT 55 YEARS W/O N VENKATESH NO. 41,1 ‘F’ MAIN 8TH CROSS, 2ND PHASE GIRINAGAR BANGALORE – 560085 2. MR. N. VENKATESH AGED ABOUT 61 YEARS S/O A.NARAYANANAPPA NO.41, 1 ‘F’ MAIN, 8TH CROSS 2ND PHASE, GIRINAGAR BANGALORE – 560 085 … RESPONDENTS (BY SRI J.S.HALASHETTI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 29.03.2019 (ANNEXURE-A) PASSED BY THE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE ON I.A.NO.3 IN O.S.NO.5128/2018 AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the plaintiffs in a declaration suit in O.S.5128/2018 are invoking the writ jurisdiction of this Court for assailing the order dated 29.03.2019, a copy whereof is at Annexure-A whereby the learned XXXIII Additional City Civil Judge, Bengaluru City, having rejected the petitioners’ application in I.A.No.3 filed under Order VI Rule 17 read with Section 151 of CPC, 1908 has denied leave to amend the plaint for introducing another property. After service of notice, respondents-defendants having entered appearance through their counsel resist the writ petition.
2. Having heard the leaned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that the impugned order is unsustainable because the amendment now sought for is pre-trial amendment, although issues have been framed; it is the consistent view of the Apex Court and of this Court that the pre-trial amendments ordinarily are to be allowed subject to exception into which the case of the petitioner does not fall.
3. The other reason for granting leave to amend the plaint is that the respondents will have an opportunity of resisting the amended plaintiff by filing their pleadings or additional pleadings as the case may be; no prejudice would be caused to the respondents-defendants and whatever little prejudice, they have been arguably put to can be made good by awarding cost; this having not been done by the Court below, there is an error apparent on the face of the record warranting the indulgence in the writ Court.
In the above circumstances, this writ petition succeeds and impugned order is set at naught; petitioners’ subject application having been favoured; leave is accrued to amend the plaint as sought for subject to the petitioners paying a sum of Rs.5,000/- to each of the defendants on or before the next date of hearing of suit, failing which the order now quashed shall stand resurrected.
All contention of the parties are kept open.
Sd/- JUDGE KTY