IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.36509 OF 2017 (GM CPC) BETWEEN:
1. Smt.Rudrambha, W/o Late S. Shivarudra Swamy, Aged about 70 years, R/at, 7/2301, 3rd Cross, Southern Extension, Kollegala Town-571 440, Chamarajanagar District.
2. Sri.H.S.Dinesh Babu, S/o late S.Shivarudra Swamy, Aged about 55 years, R/at 7/2301, 3rd Cross, Southern Extension, Kollegala Town-571440, Chamrajnagar District.
(By Sri. G.S.Naveen Kumar, Advocate for Sri.Mukkannappa B, Advocate) AND:
Smt.Vathsala Mahadev, W/o Dr.S.Mahadevaswamy, Aged about 50 years, R/at Dr.No.7/466, 4th Cross, Southern Extension, ... Petitioners Kollegala Town-571440, Chamarajnagar District.
… Respondent This Writ Petition is filed under Article 227 of the Constitution of India, praying to quash the impugned order dated 10.07.2017 passed by Hon’ble Senior Civil Judge and JMFC at Kollegal in I.A.No.10 in O.S.No.13/2015 vide annx-E to the W.P and consequently allow the application filed by the petitioner.
This Petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER The defendants have filed the present writ petition against the order dated 10.07.2017 on IA.No.10 made in OS.No.13/2015 rejecting the application filed by the defendants under Order VI Rule 17 of Code of Civil Procedure.
2. The respondent who is the plaintiff in O.S.No.13/2015 filed suit for recovery of a sum of Rs.18,85,000/- with 2% interest per month on principal amount of Rs.10,00,000/- from the date of suit and till realization of the suit and direct the defendants not to alienate the suit schedule property till the disposal of the suit, contending that the defendant Nos.1 and 2 are the owners of the of the suit schedule property. For the purpose of developing an Educational Institution which is situated in the suit schedule property, defendants approached the plaintiff and borrowed a sum of Rs.10,00,000/-in the presence of the witnesses and executed the simple mortgage deed dated 02.11.2011 and agreed to pay the interest at the rate of 2% per month to the said amount. In spite of repeated requests, the defendants failed to repay the mortgage amount with interest. Therefore, the plaintiff has filed the suit for the relief sought for.
3. The defendant Nos.1 and 2 have filed the written statement admitting the loan transaction and also execution of simple mortgage deed and denied the other averments made in the plaint and sought for dismissal of the suit. When the matter was posted for cross-examination of PW1, at that stage, defendant No.2 has filed application under Order VI Rule 17 of Code of Civil Procedure to amend the written statement stating that typographical error of the word, where it was typed as ‘it is true’ at page No.1, para 3, line 8 and the same has to be read as ‘false’ and also at page No.3 para 11 the words true has to be read as false reiterating the averments made in the written statement.
4. The same was opposed by the plaintiff by filing the objections contending that application for amendment is highly belated and the admissions made in the written statement cannot be withdrawn by filing the application for amendment. It was further contended that the defendants have admitted that they have borrowed the loan amount from the plaintiff on 02.11.2011 and now the defendants have changed the version by denying that they have not received any amount from the plaintiff is not at all correct and not believable one. If the application for amendment is allowed, it will change the entire nature of the suit and prejudice will be caused to the plaintiff. Therefore, plaintiff has sought for dismissal of the application.
5. After considering the application and objections, the trial Court by the impugned order rejected the application filed by the defendants under Order VI Rule 17 of Code of Civil Procedure. Hence, the present writ petition is filed.
6. I have heard the learned counsel for the petitioners.
7. Sri.G.S.Naveen Kumar, learned counsel on behalf of Sri.Mukkannappa B, learned counsel for the petitioners contended that the impugned order passed by the trial Court in rejecting the application is erroneous and contrary to the material on record. He would further contend that mere amendment of pleadings/written statement only an additional defence to correct the typographical error in the original written statement and it will not change or alter the nature of the suit. He would further contend that at any stage the amendment can be allowed if the same is not caused any prejudice to the other side. Mere correction of typographical error by way of amendment will not introduce any new case all together. The trial Court while considering the application has proceeded on wrong notion. Therefore, he sought to quash the impugned order passed by the trial Court by allowing the present writ petition.
8. Having heard the learned counsel for the petitioners, it is undisputed fact that the plaintiff filed suit for recovery of Rs.18,85,000/-, based on the transaction between the parties, stating that the defendants have borrowed Rs.10,00,000/- loan and executed simple mortgage deed dated 02.11.2017. The same is not disputed and transaction is admitted, the interest on the principal amount was denied by way of amendment, the defendants want to incorporate the words ‘it is false’ (“Sullagiruttdae”) in the place of ‘it is true’ (“Nijavagiruttade”).
9. The trial Court after considering the entire material on record has recorded the specific finding that the plaintiff has filed suit for suit for recovery of amount on the ground that defendants have borrowed Rs.10,00,000/- by creating simple mortgage deed in respect of suit schedule property under the registered mortgage deed dated 02.11.2011. The defendants have categorically admitted the execution and registration of mortgage deed but have denied that the rate of interest claimed by the plaintiff. At para-15 of the written statement, the defendants have admitted the loan transaction and stated that they have paid interest for the said principal amount till 2014. When the said case adjourned for cross- examination of PW1, defendants have filed application for amendment of written statement under Order VI Rule 17 of Code of Civil Procedure. On perusal of application it is noted that it is nothing that the defendants are intending to deny the execution of simple mortgage deed dated 02.11.2011. The defendants have not proposed to introduce or alternate or additional defence but they are trying to withdraw the admission made in the written statement. If the proposed amendment is allowed, it would destroy the right that has been accrued to the plaintiff. Once the defendants admitted the execution of simple mortgage deed and by way of amendment if they intend to withdrawn admission made in the written statement it will definitely cause prejudice the right of the plaintiff.
10. So far as the contention of the learned counsel for the petitioners that at any this stage, amendment can be allowed unless no prejudice cause to the case of the plaintiff. Admittedly in the present case, the defendants have admitted the loan transaction by way of executing simple mortgage deed in the original written statement, by way of amendment he wants to withdraw the transaction.
Though it is impermissible under Order VI Rule 17 of Code of Civil Procedure, by taking into consideration the entire facts of the case, the trial Court has held that the present application for amendment is nothing but withdrawing the admission of written statement. The same cannot be allowed. Therefore, the trial Court dismissed the application and the same is in accordance with law.
The petitioners have not made out any ground to interfere with the impugned order passed by the trial Court exercising the supervisory jurisdiction of this Court under Article 227 of Constitution of India.
Accordingly, writ petition is dismissed.
Sd/- JUDGE SB