IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.10487/2017 (GM- CPC) BETWEEN:
Sri S.Shivashankar S/o Late C.Subbegowda Aged about 67 years R/at # 378, Neethi Marg Siddarthanagar Mysore – 570 011 …Petitioner (By Sri Mohan B.K., Advocate) AND:
1. Smt. R.Jamuna W/o D.K.Girish Aged about 47 years 2. Sri D.K.Girish S/o Kushalappa Aged about 54 years Both R/at ‘Mallikarjuna Nilaya’ # 5636, 1st Cross, 13th Main Vijayanagar, II Stage Mysore – 570 017 3. State Bank of Mysore Vijayanagar, 2nd Stage Near Water Tank Mysore – 570 017 Rep. by its Br. Manager 4. Smt. B.P.Vimala W/o H.B.Nagaraj Aged about 41 years R/at # 3807/A, 9th Cross 2nd Stage, Vijayanagar Devaraja Mohalla Mysore – 570 017 5. Smt. Dakshayani W/o S.Shivashankar Aged about 63 years 6. Sri S.S.Shyamsundar S/o S.Shivashankar Aged about 37 years R-5 and R-6 are R/at # 378 Neethi Marg, Siddarthanagar Mysore – 570 011 …Respondents THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE ORDER OF ALLOWING THE INTERLOCUTORY APPLICATION NO.3 DATED 19.01.2017 BY THE II ADDITIONAL SENIOR CIVIL JUDGE AT MYSURU IN O.S.NO.1079/2013 VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri B.K.Mohan, learned counsel appearing for petitioner. Perused the records.
2. Petitioner has filed the suit O.S.No.1079/2013 seeking relief of specific performance of agreement of sale dated 20.12.2010. Defendants have appeared and filed their written statement.
3. When the matter was at the stage of trial, an application under Order VI Rule 17 CPC came to be filed by first defendant seeking amendment of written statement namely to incorporate additional paragraph as morefully indicated therein. It was contended that facts sought to be added are the developments which took place during pendency of the suit and also contending that certain amounts have been paid by first defendant to fourth defendant. Trial Court by order under challenge allowed the application which is assailed by the plaintiff contending inter-alia that said application is filed with an intention to drag on the proceedings and same had been filed after commencement of trial and it is impermissible; it was also contended that no cause has been shown for the delay in filing application for amendment at the earlier point of time.
4. Amendment of written statement stands on a different footing than that of amendment of plaint. While considering an application for amendment of written statement, Court should adopt a very liberal approach, until and unless it would cause injustice to the other side or by virtue of the proposed amendment or it would take away the vested right of the opposite side or in other words, the proposed amendment would wipe out the admitted facts, then such amendment is to be allowed.
5. In the instant case, first defendant has sought for incorporating certain additional facts which are said to have been taken place during course of the proceedings. As such, trial Court has rightly allowed the said application, though trial had commenced. Since the suit in question relates to specific performance of agreement of sale and under the proposed amendment, first defendant had sought to plead that there were talks between parties, pursuant to which fourth defendant has received amount from first defendant which was due to her and fourth defendant has handed over vacant possession of the suit schedule property to the first defendant and an amount of Rs.12,50,000/- has been refunded to plaintiff by demand drafts, amongst other pleas were sought to put forward under the proposed amendment. The fact that first defendant has repaid the said amount and that too by Demand Drafts as pleaded in the proposed amendment is said to have taken place during June 2015 i.e., after filing of the suit and during the course of trial. These events having been taken place during pendency of the suit, allowing of application for amendment of written statement sought for by first defendant cannot be found fault with. No grounds are made out. Hence, writ petition is rejected as devoid of merits.
SD/- JUDGE KMV/MR*