IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.36181 OF 2017 (GM – CPC) BETWEEN:
SRI. V.K. RAJASHEKARAN AGED ABOUT 70 YEARS S/O LATE V.K. KUMARASWAMY R/A 51/27, OSBORNE ROAD CROSS KOTHANDARAMA LAYOUT BANGALORE – 560 042 …PETITIONER (BY SMT. SANGEETHA MOTILAL, ADV. FOR SRI. HEERALAL.R, ADV.) AND:
SRI. D.R. MURTHY AGED ABOUT 62 YEARS S/O LATE V.G. DORAISWAMY #303, 3RD ‘B’ MAIN CROSS (BEHIND GANESHA TEMPLE) NEAR JALAVAYU VIHAR KAMMANAHALLI BANGALORE – 560 084 …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYNG TO QUASH THE IMPUGNED ORDER VIDE ANNEXURE – A PASSED BY THE HON’BLE CITY CIVIL COURT, BANGALORE, DATED 30.06.2017 ON I.A.NO.9 IN O.S.NO.3523/2012 PENDING BEFORE IT AND ALLOW I.A.NO.9.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING ORDER The defendant filed the present writ petition against the order dated 30.06.2017 on IA No.9 made in O.S.No.3523/2012 rejecting the application filed by the defendant under Order VI Rule 17 r/w Section 151 of CPC to amend the written statement.
2. The respondent who is the plaintiff in O.S.No.3523/2012 filed the suit for specific performance to enforce the agreement of Sale dated 27.01.1998 directing the defendant to execute the Sale Deed in favour of the plaintiff and in case of failure on the part of the defendant to execute the sale deed, the Hon’ble Court may pleased to have the sale deed executed in accordance with law and for grant of alternative relief of refund of sale consideration amount of Rs.3,00,000/- and improvement expenses of Rs.32,400/- in all totaling Rs.3,32,400/- together with 24% p.a. interest contending that the defendant is the owner of the property who entered into an agreement of Sale dated 27.01.1998 in favour of the plaintiff for total sale consideration of Rs.3,00,000/-. As the defendant requested the plaintiff to pay full sale consideration on the date of the agreement for necessity of the family, the plaintiff paid the sale consideration of Rs.3,00,000/- on the condition that physical possession of the property should be handed over to the plaintiff immediately on the date of Agreement of Sale. Accordingly, plaintiff was put in possession of the suit property. Inspite of the repeated requests, the defendants have not executed sale deed in terms of the agreement. Therefore, plaintiff issued legal notice on 6.2.2012 and filed the suit.
3. The defendant filed the written statement denied the plaint averments and contended that the very suit filed by the plaintiff to enforce the agreement is not maintainable and defendant never executed any agreement as alleged. It is further contended that the defendant earlier filed HRRP No.65/2012 and sought for dismissal of the suit.
4. Based on the pleadings, the trial Court framed the issues on 2.02.2013 . One of the issue was “Whether the defendants to prove that he was put the plaintiff in occupation of only a portion of premises bearing No.51/26 on lease basis and now the plaintiff is liable to be vacate and deliver the vacant possession of the property in view of the orders passed in HRRP 65/2012?”
5. When the matter was posted for further evidence of the plaintiff, at that stage, the defendant filed application under Order 6 Rule 17 r/w Section 151 of CPC for amendment of the written statement dated 5.7.2012 by adding paragraph No.2(a), 8(a), 8(b), 8(c), 8(d), 8(e), 8(f) and 8(g). It was contended that the proposed amendment is necessary to dissolve the dispute between the parties. The said application was resisted by the plaintiff by fling objections and contended that the application was not maintainable. The suit was filed in the year 2012 and plaintiff already entered into witness box and his evidence was completed on 2.2.2017 and the present application is filed at a belated stage after coming to know the real facts from the evidence of the plaintiff. He further contended that the amendment sought is not permissible and it will change the nature of the suit and sought for dismissal of the suit.
6. The Trial Court after considering the application and objections by the impugned order dated 30.06.2017 rejected the application filed by the defendant under Order 6 Rule 17 r/w section 151 of CPC. Hence, the present writ petition is filed.
7. I have heard the learned counsel for the petitioner.
8. Smt. Sangeethaa Motilal, learned counsel appearing for Sri Heeralal.R, learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court rejecting the application for amendment is erroneous and contrary to the materials on record. She further contended that the impugned order passed by the trial Court rejecting the application amounts to resjudicata. She further submitted that when the plaintiff has suppressed the material fact and he has not come to the Court with clean hands, the amendment is necessary and proper. She further contended that the trial Court failed to appreciate that the matter was at the stage of further evidence of the plaintiff and after completion of the evidence, amendment of the written statement shall be allowed as such it will help the Court for adjudicating the matter. She further contended that the impugned order rejecting the application for amendment to add certain paragraphs in the written statement is erroneous and liable to be quashed. Therefore, she sought to allow the present writ petition.
9. Having heard the learned counsel for the petitioner, it is not in dispute that the respondent who is the plaintiff before the Court filed the suit for specific performance to enforce the agreement dated 27.01.1998 alleged to have been executed by the defendant and for refund of sale consideration and expenses. The same is disputed by the defendant filing the written statement and specifically contended that the defendant never executed any agreement as alleged. The plaintiff was only a tenant under the respondent, question of execution or refund of the amount does not arise. Therefore, sought for dismissal of the suit. It is also not in dispute that when the matter was posted for further evidence of the plaintiff, at that stage present application is filed for amendment of the written statement to incorporate certain paragraphs.
10. The trial Court considering the application and objections and the material on record by the impugned order has recorded a finding that admittedly the suit filed by the plaintiff against the defendant for specific performance of the contract. Looking to the facts and circumstances of the case, the trial Court is of the opinion that the proposed amendment is not necessary for the simple reason that whatever the issues that were raised in HRC and HRRP have no consequences and moreover, earlier proceedings had nothing to do with the present case and apart from that, since suit is one for specific performance of contract and it is for the plaintiff to prove whether the defendant has executed sale deed in respect of the suit property or not and also he has paid amount to the defendant and he is ready and willing to perform his part of contract under agreement will have to be considered. Therefore, the trial Court was of the opinion that the application was not maintainable. Accordingly, dismissed.
11. The material on record clearly depicts that the respondent filed the suit for specific performance against the present petitioner/defendant to enforce the agreement set to have been executed by the defendant on 27.01.1998, the same is disputed by the defendant it is for the plaintiff to establish his case for specific performance based on the oral and documentary evidence, a specific stand was made in the written statement with regard to the HRC proceedings filed earlier before this Court in HRRP No.65/2012 and accordingly it was entered into compromise. The same is suppressed by the plaintiff, it is always open for the defendant to cross-examine the PW1. Any how, the matter was posted for further evidence of PW1, the defendant can very well cross-examine the subsequent events, there is no necessity to amend the written statement by incorporating the subsequent events in the HRC which is nothing to do with the present suit. Ultimately, it is burden on the plaintiff to prove the alleged agreement is set to have been entered by the defendant on 27.1.1998. In those circumstances, the proposed amendment is unnecessary and which is not necessary to dissolve the controversy between the parties.
12. The trial Court considering the entire material on record by the impugned order dismissed the application filed under Order VI Rule 17 r/w Section 151 of CPC. The same is in accordance with law. The Petitioner has not made out any case to interfere with the impugned order under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed. However, all the contentions raised in the present petition are left open to be raised in the suit pending adjudicate between the parties.
KLY/ SD/- JUDGE