IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.33170/2019 (GM-CPC) BETWEEN:
1. Sri.N.Ramaiah S/o Late Narayanappa.S Aged about 70 years, 2. Sri.N.Suresh S/o Late Narayanappa.S Aged about 58 years, 3. Sri.N.Venkatesh S/o Late Narayanappa.S Aged about 55 years, The petitioner No.1 to 3 Are all R/at No.140, 1st ‘K’ Block, Dr.Rajkumar Road, Rajajingar, Bengaluru – 10.
4(a). Smt.Shanthamma W/o late Krishnappa Aged about 68 years, R/at No.945, 4th Main Road, D Block, Gayathrinagar, Bengaluru – 10.
5. Sri.M.Govinda Reddy S/o Late Muniswamappa, Aged about 58 years, 6. Sri.M.Manjunath S/o Late Muniswamappa, Aged about 55 years, All R/at No.141, 1st ‘K’ Block, Dr.Rajkumar Road, Bengaluru – 10.
(By Sri.Harish Kumar M.S, Advocate) AND 1. Smt.Chennamma W/o Byrappa @ Annaiah, Aged about 73 years, 2. Sri.Manjunath S/o Byrappa @ Annaiah, Aged about 56 years, Both are R/at Sunkadakatte Srigandadakaval Dhakale, Viswaneedam Post, Yeshwanthapura Hobli, Bengaluru North Taluk.
3. Lakshmamma W/o Late Muniswamy @ Appaiah, Aged about 99 years, 4. Muniyappa S/o Late Muniswamy @ Appaiah, Aged about 68 years, ... Petitioners 5. Lalithamma D/o Late Muniswamy @ Appaiah, No.144, Gowri Nilaya, 2nd Block, Rajajinagar, Bengaluru – 10.
6. Bhagyamma D/o Late Muniswamy @ Appaiah, R/at No.120, Old No.106, 1st Block, Rajajinagar, Bengaluru – 10.
7. Shoba D/o Late Muniswamy @ Appaiah, Aged about 58 years, R/at No.63, 2nd Stage, Rajajinagar, Bengaluru – 10.
8. Rajani S/o Late Muniswamy @ Appaiah, Aged about 58 years, R/at No.24, 5th Main Road, Kurubarahalli, Bengaluru – 79.
... Respondents This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order dated 16.02.2019 passed by the XXIX Additional City Civil Judge in O.S.No.9792/2005 on I.A.No.21 vide Annexure -E and etc.
This Writ Petition is coming on for Orders this day, the Court made the following:
ORDER Petitioners being the plaintiffs in the partition suit in O.S.No.9792/2005 are invoking the writ jurisdiction of this Court for assailing the order dated 16.02.2019 a copy whereof is at Annexure – E whereby the learned XXIX Additional City Civil Judge, Bengaluru having rejected their application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 has denied the leave to amend the plaint for introducing the additional prayer for invalidation of sale deed dated 03.11.1995.
2. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court declines to grant indulgence in the matter since the Court has given the following reason at paragraph 6 below which this Court is in complete agreement:
“It is pertinent to note that, it is a suit for partition and separate possession. The plaint pleading itself shows, the plaintiffs are aware of this deed during the filing of the suit as well as during the proceedings of the suit. The evidence is already recorded. The objection reveals the matter also adjudicated in the cross- examination. So, it clearly shows, if the application is appreciated, it takes away the right accrued to the defendants, which is strictly prohibited under the proviso. Moreover, after the amendment to the Order VI, Rule 17 of CPC, it is also strictly prohibits the amendment of the pleadings after recording the evidence. Moreover, herein it is in the stage of arguments. It is also pertinent to note that, there is also objection raised on limitation. The objection raised by the defendant was not replied on this aspect. If the proposed amendment objected in respect of limitation shows the valid defence, such amendment cannot be appreciated. In Ajay Batur vs. Y.P.Batur & others order dated 05.07.2012, Delhi High Court (India Kanoon) held, time barred amendment cannot be allowed.”
However, this order shall not come in the way of petitioners getting the said relief in the suit, as framed ab inceptio, if it is otherwise legally permissible.
Writ petition is disposed of.
Sd/- JUDGE UN