IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.126/2019 AND WRIT PETITION No.1063/2019 (GM – CPC) BETWEEN:
SRI Y.V.MUNIRAJU SINCE DECEASED BY HIS LRS DR. Y.M.VENKATESH S/O LAWTE SRI Y.V.MUNIRAJU AGED ABOUT 42 YELARS RESIDING AT No.52, II MAIN GKVK LAYOUT, ALLALASANDRA YELAHANKA, BANGALORE 560 065. REP. BY GPA HOLDER SRI.S.CHETANKUMAR. ... PETITIONER [BY SRI CHANDAN.K, ADV.] AND:
1. SRI VEERASWAMAPPA DEFENDANT No.1 SINCE DEAD SURVIVED BY DEFENDANT No.3 2. SRI. Y.V.ANJANAPPA SINCE DECEASED BY HIS LRS SRI Y.M.NAGARAJ S/O LATE Y.V.ANJANAPPA MAJOR R/AT I MAIN, GANDHINAGAR, R GOPAL BUILDING, YELAHANKA BANGALORE.
3. SMT. Y.V.VIJAYALAKSHMI S/O LATE Y.V.ANJANAPPA MAJOR, RESIDING AT I MAIN, GANDHINAGAR, R GOPAL BUILDING YELAHANKA, BANGALORE.
4. SRI. Y.V.CHANDRAPPA SINCE DECEASED BY HIS LRS SMT. JAYAMMA W/O LATE SRI. Y.V.CHANDRAPPA AGED ABOUT 70 YELARS RESIDING AT No.1039, O.M.S. ROAD, NEW STREET, YELAHANKA OLD BANGALORE 560 064.
5. SRI. Y.C.HEMARAJ S/O LATE SRI.Y.V.CHANDRAPPA AGED ABOUT 45 YEARS RESIDING AT No.1039, O.M.S. ROAD, NEW STREET, YELAHANKA OLD BANGALORE 560 064.
6. SMT. KAVITHA W/O SRI. Y.C.KUMAR AGED ABOUT 40 YELARS RESIDING AT No.1039, O.M.S. ROAD, NEW STREET, YELAHANKA OLD BANGALORE 560 064. …RESPONDENTS [BY SRI R.B. SADASHIVAPPA, ADV. FOR R3(A-C); R2(A) AND (B) ARE SERVED BUT UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD: 07.12.2018 WHICH IS ANNEXED AS ANNEXURE-M TO THESE WRIT PETITIONS, PASSED BY THE LEARNED XIV ADDITIONAL CITY CIVIL JUDGE AT BANGALORE [CCH-28] IN O.S.NO.1952/1985 ON APPLICATION FILED BY PETITIONER UNDER ORDER 6 RULE 17 R/W SECTION 151 OF CPC IN O.S.NO.1952/1985 WHICH APPLICATION IS ANNEXED AS ANNEXURE-J TO THESE WRIT PETITIONS.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the order dated 07.12.2018 passed on I.A.No.9 in O.S.No.1952/1985 on the file of the XIV Additional City Civil Judge at Bengaluru [CCH-28] ['Trial Court' for short], whereby the application filed by the petitioner under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure, 1908 has been rejected.
2. The petitioner has filed I.A.No.9 in the suit proceedings claiming that due to mistake/omission the extent in each survey number i.e., Sy.Nos.87 and 88 was not mentioned. Hence, the rectification of extent of survey numbers by the proposed amendment is necessary for proper adjudication of the case.
3. It is significant to note that original suit in O.S.No.1952/1985 was filed by the petitioner/plaintiff and the matter was heard and judgment and decree was passed, which was challenged before this Court in two rounds. This Court remanded the matter twice and after the completion of the cross-examination of PW-1, this application has been filed, seeking for amendment. Learned counsel for the petitioner placing reliance on Section 26 of the Specific Relief Act, 1963 ['Act' for short] as well as the judgment of the Hon'ble Apex Court in the case of Puran Ram V/s. Bhaguram and Others reported in AIR 2008 SC 1960 would submit that the proviso to Section 26 of the Act clearly permits either party to correct and rectify the description of the suit property not only in the plaint but also in the agreement also which is beneficial to both the parties. Hence, the Trial Court ought not to have rejected the I.A.
4. Learned counsel for the respondent No.3 justifying the impugned order, would submit that the matter being remanded twice and in the third round, the amendment sought for by the petitioner to amend the measurements of the suit schedule property goes to the root of the matter and changes the nature of the suit which is not permissible and would adversely prejudice the rights of the respondents.
5. Having heard the rival submissions of the parties and perusing the material on record, it is not in dispute that originally, the petitioner has sought for declaration of 0.33 guntas in Sy.No.87 and 0.32 guntas in Sy.No.88, totally measuring 1 acre 25 guntas of Yelahanka Amanikere village and subsequently it was amended as 1 acre 13 guntas as per the order of the Trial Court dated 27.05.1988. In a suit for the relief of declaration, mandatory injunction and other consequential reliefs against the respondents filed by the petitioner, the description of the suit property places a relevant factor to determine the real controversy between the parties or adjudicate the dispute between the parties. The description of the suit property could not be altered from time to time according to the whims and fancies of the petitioner.
6. The petitioner was aware of the description of the property as well as the partition deed executed between the parties. If so, seeking amendment of the plaint in the guise of rectification of deed under Section 26 of the Act is wholly inconceivable. Neither such ground was raised by the petitioner before the Trial Court nor argued. There was no opportunity for the Trial Court to address the arguments now canvassed by the petitioner before this Court. For the first time, in these writ petitions invoking the jurisdiction under Article 227 of the Constitution of India, this argument is advanced. This Court exercising the power under Article 227 of the Constitution of India can examine the jurisdictional error if any, committed by the Trial Court but no adjudication can be made on the new grounds.
In the circumstances, no such error being found in the order impugned, the writ petitions deserve to be dismissed as devoid of merits.
Accordingly, writ petitions stand dismissed.
Sd/- JUDGE NC.