IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.55421 OF 2015 [GM-CPC] BETWEEN:
SRI A. PAPANNA S/O LATE ANNAIAH AGED ABOUT 67 YEARS, R/AT HINAKAL VILLAGE, KASABA HOBLI, MYSORE TALUK-571 017. ... PETITIONER (By SRI. ANANDA K., ADVOCATE) AND:
1. SRI MOJJAIAH @ BACHAIAH S/O LATE BOLAIAH, MAJOR 2. SRI. NAGARAJU S/O MOJJAIAH, MAJOR, 3. SRI. SWAMY S/O MOJJAIAH, SINCE DEAD BY HIS LRs [A] SMT. PAVITRA W/O. LATE SWAMY, MAJOR [B] MR. AMSHIKH S/O. LATE SWAMY MINOR, REP. BY HIS MOTHER & NATURAL GUARDIAN SMT. PAVITHRA [AMENDED VIDE COURT ORDER DATED 6.2.2019] 4. SMT. TAYAMMA W/O. MOJJAIAH D/O. LATE NANJAIAH AGED ABOUT 59 YEARS ALL ARE R/AT HINAKAL VILLAGE, KASABA HOBLI, MYSORE TALUK-571 017. ... RESPONDENTS (By SRI. M. KRISHNAPPA, ADVOCATE FOR R1, R2, R4 & R3[A] & [B] THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORD, PERUSE THE SAME AND SET ASIDE THE ORDERS DT.1.12.2015, PASSED ON I.A NOs.23, 24 & 25 IN O.S.62/2002 BY THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES, MYSORE AT ANNX-L & M AND ALLOW THE APPLICATIONS FILED BY THE PETITIONER AT ANNX-D, G & J .
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition has come up for consideration of applications in I.A. Nos. 1 to 3 of 2016. At the request of learned counsel for the parties, the same are taken up for final disposal.
2. Admittedly, the present writ petition is filed by the plaintiff in O.S. No.62/2002 which is filed for the relief of specific performance. When the said suit was at the stage of arguments, it is stated that three applications were filed. The first of the applications is under Order VI Rule 17 read with Section 151 of CPC, seeking amendment to the pleadings so far as it pertains to the pleadings with reference to date of the agreement of sale as well as issuance of legal notice by the plaintiff prior to filing of the suit for specific performance. The second application is for reopening of the proceedings which had reached stage of arguments to enable the parties to adduce further evidence and the third application is seeking condonation of delay for reopening of the proceedings before trial Court. All these three applications are rejected by Order dated 1.12.2015.
3. It is seen that said three applications are disposed of by two orders passed on the said applications. One order is with reference to application seeking amendment and another order is in respect of the applications which are filed seeking reopening of the case and for condoning delay in seeking reopening of the proceedings and consequential reliefs. It is seen that all the three applications are dismissed by the said two separate orders. The plaintiff in the Court below has filed the present writ petition impugning the orders passed on all the three applications, namely, I.A. Nos.23, 24 and 25. When this matter was heard for admission, at the initial stage, this court has refused to consider the prayer for challenging the order passed on I.A. Nos. 24 and 25 which are with reference to seeking reopening of the case and also to condone the delay in filing the application seeking for reopening the case and receiving list of witnesses and granting an opportunity for adducing further evidence. So far as order on I.A. No.23 which is with reference to rejection of the prayer for amendment is concerned, this writ petition is admitted.
4. When this writ petition is heard for final disposal in the presence of learned counsel for the petitioner and learned counsel for the respondents, it is noticed that agreement of sale is said to be dated 2.2.1996. However, while preparing the petition, it is stated that there is typographical error in showing the year of agreement as 1996, instead of 1998. When it comes to date and month is concerned, it is referred to as 2nd of February, which is said to be the correct date. So far as date of issuing legal notice is concerned, the legal notice is said to have been referred to as 31.01.2002 whereas notice is said to be issued on 31.01.2001. These two mistakes are with reference to the year of the agreement as well as year on which legal notice is issued. The same requires reconsideration by the Court below.
5. Therefore, learned counsel for the respondents submits that this application may be allowed and liberty may be given to him to demonstrate the correct date of the agreement and legal notice before the Court when the same is raised by the plaintiff for the relief of specific performance in the court below.
With such liberty to both the parties, writ petition is allowed so far as order pertaining to I.A. No.23 in setting aside the same and consequentially allowing the said application and permitting the petitioner to carry out amendment in the original suit. In the light of the writ petition being allowed application for amendment, this Court directs the Court below to conclude the matter, within sixty days from the date of receipt of certified copy of this order.
Sd/- JUDGE AN/-