IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 46630 OF 2019 (GM-CPC) BETWEEN:
1. SMT. SUSHEELA, W/O LATE K SOMASHEKAR RAO, AGED ABOUT 71 YEARS, R/AT NO.93,1ST STAGE, KHB COLONY, KUVEMPUNAGAR, MYSORE-23.
2. SRI. S KIRAN RAO, S/O LATE K SOMASHEKAR RAO, AGED ABOUT 50 YEARS, R/AT NO.4, 3A CROSS, 22ND BLOCK, SHAKTINAGAR, MYSORE.
… PETITIONERS (BY SRI. NAGARAJA S, ADVOCATE) AND:
1. SMT. JYOTHI S URAL W/O SRIDHAR URAL AGED ABOUT 48 YEARS, R/AT GAVANAHALLI, RAMAPURA POST, CHIKKAMANGALORE.
2. SMT. ROOPA S RAO, W/O B P SRINIVAS, AGED ABOUT 45 YEARS, R/AT NO.12/B, 1ST STAGE, INDUSTRIAL SUB-URB, MYSROE – 570023.
3. SMT BHARATHI RAO, D/O LATE K SOMASHEKAR RAO, W/O B S SHARATH, AGED ABOUT 43 YEARS, R/AT NO.1120, LALITHADRI ROAD 1ST CROSS, G & H BLOCK, KUVEMPUNAGAR, MYSORE … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 29.08.2019 PASSED BY THE III ADDL. SENIOR CIVIL JUDGE AND CJM, MYSURU ON IA-IX IN O.S.NO.946/2012 VIDE ANX-E AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the plaintiff in a partition suit in O.S.No.946/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 29.08.2019, a copy whereof is at Annexure-E, whereby the learned III Additional Senior Civil Judge, Mysuru, having rejected his application in IA No.9 filed under Order VI Rule 17 read with Section 151 of CPC, 1908, has denied leave to amend the plaint as sought for.
2. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court declines to grant indulgence in the matter agreeing with the contents of paragraph Nos. 8, 9 & 10 of the impugned order which read as under:
“8. As per the plaintiffs in respect of Khemnahally property the suit was filed by deceased Somashekara Rao and one Subramanya Bhat in O.S.No.484/1997, 485/1997 and 486/1997 before the Prl. Civil Judge, Mysuru to declare that the plaintiffs are the absolute owner of the property. In the said suit judgment was passed on 14.02.2006 by allowing the plaintiffs claim in partly. But the plaintiff or the defendants in the said suit have no right, title over the said property. Hence, the execution of gift deed is not valid. Now recently they have changed their advocate and they have came to know about amending the plaint. Hence, they have filed this application.
9. The defendant No.3 filed objection to I.A.No.9 and opposed for allowing the I.A. on the ground that the application is filed at belated stage. Further they contend that at the time of filing the suit itself the plaintiffs know about the judgment passed in the suits which are claimed in the I.A. filed by the plaintiffs.
10. Even though as per Order VI Rule 17 of CPC the amendment cab be allowed at any stage, but as per the Proviso to Order VI Rule 17 of CPC, no application for amendment shall be allowed, after trial has commenced, unless the Court come to the conclusion that inspite of due diligence, the party could not have raised the matter before commencement of the trial. So in this case also the fact regarding the amendment sought is pertaining to the judgment passed in the year 2006. But the suit is filed in the year 2012. Hence, it clearly goes to show that before filing of the suit, the fact of amendment now sought was taken place. Hence, the amendment sought in I.A.No.9 by the plaintiff is not maintainable. Hence, the plaintiffs have not made out grounds to allow the I.A.No.9. Therefore, point No.1 is answered in the Negative.”
In the above circumstances, writ petition is disposed off reserving liberty to the petitioner to make the impugned order a ground for assailing the judgment & decree if rendered adverse to his interest, as provided under Section 105 read with Order 43 Rule 1A of the amended Code.
All contentions of the parties are kept open.
Sd/- JUDGE Bsv