IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 23389 OF 2017 (GM-CPC) BETWEEN:
SRI. RATHAN KUMAR AGED ABOUT 56 YEARS, S/O. SRI. SEETHARAM NAIK, SHARADA NILAYA, BANNUR VILLAGE-574202, PUTTUR TALUK, D.K.
… PETITIONER (BY SRI. K CHANDRANATH ARIGA, ADVOCATE) AND:
MR. LOKESH SHETTY K S/O. MR. NARAYANA SHETTY K, AGED ABOUT 37 YEARS, KALLANDAKA HOUSE, KULA VILLAGE, BUNTWAL TALUK 574201, D.K.
… RESPONDENT (BY SRI. PAVANA CHANDRA SHETTY, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 01.02.2017 ON I.A. NO. 13 IN O.S.NO. 18/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & ACJM, PUTTUR (ANNEXURE-F) AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner being the second defendant in a specific performance suit in O.S.No.18/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 01.03.2017 a copy whereof is at Annexure-F whereby the learned Principal Senior Civil Judge, Puttur having favoured his application field under order VI Rule 17 of CPC, 1908 has granted leave to amend the plaint inter alia, for introducing an averment as to “readiness and willingness” to perform his part of the agreement dated 17.05.2010. After service of notice, the contesting respondent having entered appearance through his counsel resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, this Court declines to grant indulgence in the matter inasmuch as, the Court below having exercised due discretion has granted leave to the respondent-plaintiff to amend the pleadings; ordinarily, the discretionary orders are not susceptible to challenge in writ jurisdiction vide SADHANA LODH VS. NATIONAL INSURANCE COMPANY, AIR 2003 (3) SCC 524.
3. Even otherwise, no prejudice would be caused to the petitioner inasmuch as, regardless of the pleadings, the Court below vide order dated 23.06.2014 has already framed all the issues that would ordinarily arise in a suit for specific performance and thus, the due adjudication of the suit requires the impugned order granting leave to amend the plaint to be sustained, of course, subject to payment of cost.
In the above circumstances, this writ petition is disposed off sustaining the impugned order subject to the condition that the respondent shall pay a cost of Rs.5,000/- to the petitioner within a period of one month or on the next date of hearing, whichever is later, failing which the impugned order now shall stand quashed.
All other contentions are kept open.
Sd/- JUDGE Bsv