® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.45228/2014(GM-CPC) BETWEEN SMT SUGUNA W/O LATE HARISH, D/O MUNIVENKATAPPA, AGED ABOUT 35 YEARS, R/O AVALAHALLI VILALGE, VIRGONAGAR POST, BIDARAHALLI HOBLI, BANGALORE EAST TALUK. ... PETITIONER (BY SRI K S NARAYANA SWAMY, ADVOCATE) AND 1. SMT VENKATALAKSHMAMMA W/O MUNIVENKATAPA, AGED ABOUT 66 YEARS, R/O KORALUR VILLAGE, NADAVATHI POST, HOSKOTE TALUK, BANGALORE RURAL DISTRICT-562 114.
2. SRI.MUNJUNATH S/O MUNIVENKATAPA, AGED ABOUT 40 YEARS, R/O KORALUR VILLAGE, NADAVATHI POST, HOSKOTE TALUK, BANGALORE RURAL DISTRICT-562 114.
3. SRI. SRIDHARA S/O MUNIVENKATAPA, AGED ABOUT 38 YEARS, R/O KORALUR VILLAGE, NADAVATHI POST, HOSKOTE TALUK, BANGALORE RURAL DISTRICT.
4. SMT.ANITHA D/O MUNIVENKATAPA, W/O NAGARAJ, AGED ABOUT 31 YEARS, R/O GAJALA DINNE, KNS POST, KOLAR-563 101.
5. MS.SHANTHA SWETHA D/O MUNIVENKATAPPA, AGED ABOUT 28 YEARS, R/O KORALUR VILLAGE, NADAVATHI POST, HOSKOTE TALUK, BANGALORE RURAL DISTRICT- 562 114.
6. SRI.C.S.NAGARAJ S/O LATE SIDDAPPA, AGED ABOUT 44 YEARS, R/O CHEEMASANDRA VILLAGE, BIDARAHALLI HOBLI, VIRGONNAGAR POST, BANGALORE EAST TALUK, BANGALORE-560 049.
7. VENKATESH S/O LATE SIDDAPPA, AGE ABOUT 36 YEARS, CHEEMASANDRA VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK, BANGALORE-560 049. ... RESPONDENTS (BY SRI B.ROOPESH, ADVOCATE FOR R4, R1 TO R3, R5 TO R7 ARE SERVED BUT UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 19.7.2014 PASSED BY THE LEARNED DISTRICT & SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE ON THE APPLICATION FILED BY THE PETITIONER UNDER ORDER VI RULE 17 R/W SECTION 152 OF THE CODE OF CIVIL PROCEDURE IN R.A. NO.3/2014 VIDE ANNEXURE-J AND CONSEQUENTLY ALLOW THE SAID APPLICATION BY GRANTING THE RELIEF AS SOUGHT THEREIN.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Plaintiff in OS.No.234/2006 on the file of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, has come up in this writ petition impugning the order dated 19.7.2014 passed by the Principal District and Sessions Judge, Bengaluru Rural District, Bengaluru, on an application filed under Order 6 Rule 17 r/w Section 152 of CPC in a disposed of appeal in RA.No.3/2014, which arose from the judgment and decree passed in OS.No.234/2006.
2. The grievance of the petitioner is that the suit for partition filed by him was decreed by judgment and decree dated 27.9.2013 which was subject matter of appeal in RA.No.3/2014 on the file of Principal District and Sessions Judge, Bengaluru Rural District, wherein the matter was referred to mediation. In the said mediation, dispute between the parties is amicably settled and in terms of the compromise entered in to between the parties, the suit of the plaintiff is decreed. It is thereafter, the application seeking amendment to the schedule of the decree, so far as it pertains to item No.2 of Schedule – F, which is with reference to Sy.No.27/2 of Cheemasandra village, Bidarahalli Hobli, Hosakote Taluk, Bengaluru Rural District, measuring to an extent of 1 acre 16 guntas with boundaries as shown therein, is filed.
3. The grievance of the petitioner is not with reference to the extent or boundary. It is with reference to Sy.No.27/2 which was subsequent to filing of the suit being renumbered and given as Sy.No.27/7. According to him, the said fact was not known to the petitioner until he approached the authorities with a request for registration of decree passed in FDP proceedings. It is after coming to know the change that has taken place in the survey number, the same was sought to be inserted in the decree. In that behalf, the aforesaid application was filed.
4. The learned counsel for the petitioner as well as contesting respondent would submit that whatever that was stated in the application for amendment being just and proper, the respondents also did not oppose the same because the rights of any of the parties was not disturbed by the aforesaid amendment. Instead, it would be in aid of giving full effect to the settlement arrived at between the parties. However, the lower appellate court has looked at it in a different manner and has proceeded to consider the application on the premise as if a new item of property is introduced in to the decree which is already passed after negotiated settlement between the parties. Hence, it has been rejected.
5. When this writ petition is taken up for consideration, learned counsel for the petitioner as well as contesting respondent together would submit that it is in the interest of all the parties the amendment sought in the application is required to be considered. In that behalf, they also relied upon the judgment of the Apex Court in the matter of Peethani Suryanarayana and Anr., -vs- Repaka Venkata Ramana Kishore and Ors., reported in AIR 2009 SC 2141, where under similar circumstances amendment to the decree sought is considered by the Apex Court. They have also relied upon one more judgment of the Apex Court in the matter of Niyamat Ali Molla – vs- Sonargon Housing Co-operative Society Ltd., & Ors., reported in AIR 208 SC 225, where the correction of decree under Sections 152 and 151 of CPC is considered under similar circumstances.
6. On going through the aforesaid two judgments of the Apex Court, this Court is of the considered opinion that the lower appellate court has not appreciated the material on record and not applied its mind to see whether there would be any change in the nature of settlement arrived at between the parties when amendment is considered resulting in grave injustice being caused to the parties.
7. Accordingly, by allowing this writ petition, the order dated 19.7.2014 passed in disposed of RA.No.3/2014 on the file of the Principal District and Sessions Court, Bengaluru Rural District, Bengaluru, is hereby set aside, consequently the application which was filed in the said matter under Order 6 Rule 17 r/w Section 152 of CPC is allowed with a direction to the registry of lower appellate court to amend the decree in terms of the application filed by the plaintiff in original suit.
Sd/- JUDGE nd/-