IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.13885 OF 2018 (GM-CPC) BETWEEN:
1. SMT.SEEMA GAJARIA, W/O LATE BHARATH R.GAJARIA, AGED ABOUT 79 YEARS, 2. SRI.MANISH B.GAJARIA, S/O LATE BHARATH R.GAJARIA, AGED ABOUT 56 YEARS, 3. SRI.GIRISH B.GAJARIA, S/O LATE BHARATH R.GAJARIA, AGED ABOUT 47 YEARS, ALL ARE RESIDING AT NO.403, “SHANTINIKETAN APARTMENTS”, 39TH CROSS, 8TH BLOCK, BANGALORE – 560070. ... PETITIONERS (BY SRI.M.SHIVAPRAKASH, ADVOCATE) AND:
1. SRI.M.KRISHNA SWAMY, S/O LATE D.M.MUNIYAPPA, AGED ABOUT 76 YEARS, RESIDING AT NO.907, 6TH MAIN, VIJAYANAGAR, BANGALORE – 560040.
2. SRI.M.VENKATA SWAMY, S/O LATE D.M.MUNIYAPPA, AGED ABOUT 78 YEARS, RESIDING AT NO 250, 2ND BLOCK, R.T.NAGAR, BANGALORE - 560032.
3. SRI.GANESHA, S/O CHANNAPPA, MAJOR, RESIDING AT T.BEGUR VILLAGE, KASABA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT - 562123.
4. SMT.GOWRAMMA, W/O ANJINAPPA, MAJOR, RESIDING AT SARAKKI VILLAGE, NEAR INDIRA GANDHI CIRCLE, J.P.NAGAR, BANGALORE - 560078. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS IN OS NO.76/1997 ON THE FILE OF ADDL. CIVIL JUDGE & JMFC AT NELAMANGALA AND ETC.
THIS WRIT PETITION COMING ON PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners being the defendant Nos.3, 4 & 5 in a declaration suit filed by the respondent Nos.1 & 2 herein in O.S.No.76/1997, are invoking the writ jurisdiction of this court for assailing the order dated 29.01.2018, a copy whereof is at Annexure – F, whereby the learned Addl. Civil Judge at Nelamangala having been allowed respondents’ I.A.No.16 filed under Order VI Rule 17 r/w section 151 of CPC and thereby permitting them to introduce description of the suit property.
2. The learned counsel for the petitioners argues that this amendment could not have been granted at the fag end of the matter; even otherwise also, the application did not deserve consideration on merits; therefore, he submits, there is an error apparent on the face of the record which warrants indulgence of this court for setting the same at naught.
3. Having heard the learned counsel for the petitioners and having perused the Petition Papers, this court declines to grant indulgence in the matter because:
(a) in the Written Statement, there is no contention taken up by the petitioners as to the identity or description of the property in question; what is now sought to be introduced is amplification of the description earlier made and that does not result into introduction of a new property to the suit schedule; and (b) petitioners in their Written Statement at para 9 have admitted the description of the property and further, it is not their case that some other property is being introduced by way of this amendment; thus, the amendment now permitted to be made is virtually innocuous and therefore, the bar contained under proviso to Order VI Rule 17 of CPC is not invocable as held by the Apex Court in the case of Rajkumar Bhatia Vs. Subhash Chander Bhatia, AIR 2018 SC 100.
Since the suit is of the year 1997, a request is made to the learned Judge to try and dispose off the same, within a period of nine months and report compliance to the Registrar General of this Court.
Accordingly, the Writ Petition is disposed off. No costs.
Sd/- JUDGE cbc