IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.56792/2014 (GM-CPC) Between:
Sri. Sannathammaiah S/o. Late Basappa @ Basavaiah, Aged about 69 years, Residing at Mudalakoppalu Village, Halebeedu Post, Bilekere Hobli, Hunsur Taluk, Mysore District 571 103.
(By Sri. N. Nanjunda Swamy, Adv.) And:
Sri. Sheshegowda S/o. Late Muddegowda, Aged about 61 years, R/at Devarahalli Village, Bilikere Hobli, Hunsur Taluk, Mysore District 571 103. (By Sri. B. S. Nagaraj, Adv.) … Petitioner …Respondent This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to set aside the order dated 02.12.2014 passed on I.A.6 filed under Order VI Rule 17 of CPC in O.S.No.89/2011 by the Civil Judge and JMFC, at Hunsur as per Annexure-F and dismiss the said application produced at Annexure-C.
This writ petition coming on for preliminary hearing in ‘B’ group this day, the Court, made the following:
ORDER Petitioner who is the plaintiff before the trial Court has challenged the order passed on I.A.No.VI, whereby the trial Court has allowed the application permitting defendant No.9 to amend the written statement. The suit has been filed seeking the relief of declaration and permanent injunction.
2. The defendant No.9 has contended in his defense that he has purchased the property through a registered sale deed. The written statement came to be filed by the 9th defendant in which at paragraph No.3 the defendant has stated that he purchased plaint ‘B’ schedule property from the husband of defendant No.2 and father of defendants 3 and 4 for a valuable consideration through a registered sale deed. The 9th defendant has filed an application under Order 6 Rule 17 of CPC at a subsequent point of time whereby an amendment was sought to be made to the written statement which reads as follows:
“1. To add the following in para 3 of the statement – To add ‘a portion’ of A i.e., Sy. No.75/4 measuring 1 acre 24 guntas in plaint A schedule property and 16G in plaint B Schedule in Sy. No.75/5”. Infact, both the above properties have been purchased on 6.3.2003 through a registered sale deed.
2. To add in para 5 line No.6 after the word ‘the’ to incorporate portion of plaint B & A schedule in 8th line and last line of para 5”.
3. The said application was objected to.
However, the trial Court has allowed the application while observing that the evidence is yet to commence and that the proposed amendment does not amount to withdrawal of any admission.
4. Learned counsel for the petitioner has challenged the said order and submits that the averments made in the written statement refers to purchase of property only in ‘B’ schedule and ‘B’ schedule property refers to Sy. Nos. 75/3, 75/2 and 75/5, and does not refer to Sy. No. 75/4. Hence, it is contended that when the defendant has specifically stated he has purchased ‘B’ schedule property, by the proposed amendment, defendant is seeking to include an extent in Sy. No.75/4 measuring 1 acre 24 guntas and accordingly, the effect of amendment is to take away the admission made at an earlier point of time. Similarly, it is stated that in paragraph 5 of the written statement the reference is made only to plaint ‘B’ schedule property, whereas by the proposed amendment the defendant is seeking to include ‘A’ schedule property also.
5. Learned counsel for the respondent who is defendant No.9 submits that the sale deed is a documentary evidence and includes the extent of 1 acre 24 guntas in Sy. No.75/4 and 16 guntas in Sy. No.75/5 and hence, in light of recitals in the sale deed, averment made in the written statement was merely by oversight and must not be construed to be an admission as regards purchase of only ‘B’ schedule property.
6. It is to be noted that the suit is at the stage of evidence and evidence has not commenced. The defendant by virtue of the proposed amendment is seeking to clarify the extent purchased under the sale deed. It is clear that defendant is seeking to make an amendment which is clarificatory. Question as to what has been conveyed under the sale deed is a matter that rests on proof of sale deed. If it is the contention of the petitioner that what has been conveyed is only ‘B’ schedule property under the sale deed, it is open for the petitioner who is the plaintiff to prove the said contention in trial. Prima facie the reading of the written statement as a whole would not in any way give an impression that the averment made in the original statement amounted to admission that the defendant had purchased the property only in ‘B’ schedule.
Further, it is the settled position of law as is observed in the case of SUSHIL KUMAR JAIN V. MANOJ KUMAR & ANR (AIR 2009) SC 2544 that the amendment in the case of written statement ought to be considered more liberally than that of plaint. Further, the court has observed at paragraph 12 that even an admission may be withdrawn or explained away. The question as to what has been conveyed under the sale deed and as to whether the vendor had rights etc. are matters to be proved during trial.
Accordingly and Subject to above observations, petition is dismissed. It is clarified that the observation made above are not to be treated by the trial Court to be conclusive and are made for the limited purpose of the present proceedings.
Sd/- JUDGE VP