IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.154/2019 (GM-CPC) BETWEEN 1. SAMPANGIRAMAIAH S/O LATE ALLALAPPA AGED ABOUT 67 YEARS 2. SRI RAMACHANDRAPPA S/O LATE ALLALAPPA AGED ABOUT 62 YEARS BOTH ARE R/AT KARAKALAGHATTA VILAGE KASABA HOBLI ANEKAL TALUK BENGALURU DISTRICT-562106 ... PETITIONERS (BY SRI LEELADHAR H.P., ADVOCATE) AND 1. SRI CHIKKA PUTTAPPA S/O. LATE SIMPARI ALLALAPPA AGED ABOUT 82 YEARS 2. SRI VARADAPPA S/O. LATE SIMPARI ALLALAPPA AGED ABOUT 72 YEARS 3. SMT. YELLAMMA W/O. LATE SIMPARI ALLALAPPA AGED ABOUT 82 YEARS 4. SMT. LAKSHMAMMA W/O LATE MUNIYAPPA AGED ABOUT 67 YEARS 5. SRI ARAVIND S/O. LATE MUNIYAPPA AGED ABOUT 34 YEARS 6. SRI CHETHAN S/O. LATE MUNIYAPPA AGED ABOUT 30 YEARS 7. SRI CHINNAPPA S/O. LATE MUNIYAPPA AGED ABOUT 60 YEARS 8. SMT. SAROJAMMA D/O LATE MUNIYAPPA AGED ABOUT 46 YEARS RESPONDENT NOS.1 TO 8 ARE R/AT KARAKALAGHATTA VILLAGE KASABA HOBLI ANEKAL TALUK BENGALURU DISTRICT-562106 9. SMT. MARAKKA W/O. LATE DODDAPUTTAPPA AGED ABOUT 82 YEARS R/AT HAROHALLI VILLAGE ATTIBELE HOBLI ANEKAL TALUK BENGALURU DISTRICT-562106 SRI SHIVALINGAIAH SINCE DEAD BY HIS LRS.
10. SMT. GOWRAMMA W/O. LATE L. SHIVALINGAIAH @ LINGAIAH AGED ABOUT 71 YEARS 11. SRI UMESH S/O. LATE L. SHIVALINGAIAH @ LINAIAH AGED ABOUT 41 YEARS 12. SMT SHYALAJA D/O. LATE L. SHIVALINGAIAH @ LINGAIAH AGED ABOUT 35 YEARS 13. SRI RAMESHA S/O. LATE L. SHIVALINGAIAH @ LINGAIAH AGED ABOUT 34 YEARS 14. SMT. SAROJA D/O. LATE L. SHIVALINGAIAH @ LINGAIAH AGED ABOUT 31 YEARS 15. SRI KRISHNAPPA S/O. LATE L. SHIVALINGAIAH @ LINGAIAH AGED ABOUT 46 YEARS 16. SRI SRIDHARA S/O. LATE L. SHIVALINGAIAH @ LINGAIAH AGED ABOUT 44 YEARS 17. SMT UMA D/O. LATE L. SHIVALINGAIAH @ LINGAIAH AGED ABOUT 39 YEARS RESPONDENT NOS.10 TO 17 ARE R/AT JANATHA COLONY KARAKALAGHATTA VILLAGE KASABA HOBLI ANEKAL TALUK BENGALURU DISTRICT-562106 18. SMT. CHAMPA D/O. LATE L. SHIVALINGAIAH @ LINGAIAH AGED ABOUT 36 YEARS R/AT HOUSE NO.11 APPAJI ASHWINI MEDICAL STORE BYATARAYANAPURA MAIN ROAD MYSURU ROAD BENGALURU-560 026 19. SMT KAMALA D/O. LATE L. SHIVALINGAIAH @ LINGAIAH AGED ABOUT 34 YEARS R/AT NO.110, C.R.9 POLICE HOUSE QUARTERS VINAYAKA CINEMA MYSURU ROAD, BENGALURU-560 018 20. SRI KRISHNAPPA S/O. SHIVALINGAIAH MAJOR IN AGE 21. SRI SRIDHARA S/O. SHIVALINGAIAH MAJOR IN AGE RESPONDENT NOS.20 AND 21 ARE R/AT KARALAGHATTA VILLAGE KASABA HOBLI ANEKAL TALUK BENGALURU DISTRICT-562106 ... RESPONDENTS (BY SRI RAJAGOPALA NAIDU, ADVOCATE FOR R2;
V/O. DATED 23.07.2019, NOTICE TO R1 TO R19 IS DISPENSED WITH; R5, R15, R16, R18 AND R20 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 30.11.2018 PASSED BY THE SENIOR CIVIL JUDGE, ANEKAL, BENGALURU DISTRICT, DISMISSING THE I.A.NO.16 UNDER ORDER VI RULE 17 READ WITH SECTION 151 OF CPC FILED BY THE PETITIONER IN O.S.NO.2486/2006 UNDER ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the plaintiffs in a declaratory suit in O.S.No.2486/2006 are invoking the Writ Jurisdiction of this Court for assailing the order dated 30.11.2018, a copy whereof is at Annexure-F, whereby the learned Senior Civil Judge, Anekal having rejected their application in I.A.No.16 filed under Order VI Rule 17 read with Section 151 of CPC, 1908 has denied the leave to amend the plaint. After service of notice, the respondents having entered appearance through their counsel, resist the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants indulgence in the matter for the following reasons:
(a) the suit is inter alia for declaration and consequential injunction and prayer in the plaint is comprehensive; the petitioners have filed the subject application on 04.09.2018 seeking to introduce an additional prayer for declaration as to non-bindingness of sale deed dated 28.10.1974 which is already produced and marked in the evidence of the plaintiffs’ side; and, (b) the trial having been accomplished, the suit was posted for final judgment is true; however, the Apex Court in the case of K K VELUSAMY VS. PALANISAMY 2011 (11) SCC 275 has pointed out the grounds when Court can receive the application even when the matter was posted for judgment and one of the propositions laid down in the said case govern this case more specially, when it is a declaration suit and the prayer now sought to be introduced is more in the nature of consequential relief; and 3. The denial of leave to amend the plaint does not appear to be just and reasonable; the Court below could have granted the leave subject to cost and conditions and this having not been done there is an error apparent on the face of the record warranting indulgence of this Court.
4. In the above circumstances, this Writ Petition succeeds; the impugned order is set at naught; the subject application having been allowed, the leave is accorded to the petitioners to amend their plaint; it is open to the respondents/defendants to file their additional Written Statement if they so choose; the petitioners are liable to pay a cost of Rs.10,000/- to respondent Nos.11 and 12 within a period of two weeks failing which the impugned order now quashed will stand revived and further, the petitioners shall not be permitted to lead any further evidence.
Learned trial Judge is requested to hear and dispose off the suit within a period of two months.
Sd/- JUDGE KA