Writ Petition No. 16411 of 2025 · The High Court
Case Details
1 Reserved on : 09.06.2025 Pronounced on : 08.07.2025 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.16411 OF 2025 (GM - CPC) BETWEEN: SMT. VENKATAMMA NAMASIVAYAM SINCE DEAD BY LRS 1. SRI N D SADHAKA S/O LATE DR. M.NAMASSIVAYA AGED ABOUT 78 YEARS R/AT NO.4, OBALAPPA GARDENS K.R.ROAD, YEDIYUR POST BENGALURU – 560 082. 2 . SRI N.SHREY ARTHY S/O LATE DR. M.NAMASSIVAYA AGED ABOUT 76 YEARS R/AT NO.40, GARDEN BOYLEVARD MONA HEIGHTS, KINGSTON-6 JEMEICA, WEST INIDES. 3 . SRI N.SUMITHRA S/O LATE DR. M.NAMASSIVAYA AGED ABOUT 74 YEARS R/AT NO.103, CRESCENT VILLAGE APARTMENTS CLIFTON PARK, N. Y. 12065, USA. 2 4 . SMT. N.VIDYA D/O LATE DR. M.NAMASSIVAYA AGED ABOUT 71 YEARS R/AT NO.1337, 21ST AVENUE ROCK ISLAND ILLINOIS 61201, USA. 5 . SMT. N.BHARTHI D/O LATE DR. M.NAMASSIVAYA AGED ABOUT 69 YEARS R/AT NO.9, GLOUCESTER ST. CLIFTON PARK N. Y. 12065, USA. 6 . SRI N.SUCHINTHAKA S/O LATE DR. M.NAMASSIVAYA AGED ABOUT 66 YEARS R/AT NO.103, CRESCENT VILLAGE APARTMENTS CLIFTON PARK, N. Y. 12065, USA. 7 . SMT. N.NAGARANI D/O LATE DR. M.NAMASSIVAYA AGED ABOUT 65 YEARS R/AT NO.501, CRESCENT VILLAGE APARTMENTS CLIFTON PARK, N. Y. 12065, USA. 8 . SMT. N.SUJATHA D/O LATE DR. M.NAMASSIVAYA AGED ABOUT 62 YEARS R/AT NO.9, GLOUCESTER ST. CLIFTON PARK, N. Y. 12065, USA. 9 . SMT. N.NALINI JAYANTHI D/O LATE DR. M.NAMASSIVAYA AGED ABOUT 60 YEARS R/AT NO.103, CRESCENT VILLAGE APARTMENTS CLIFTON PARK, N. Y. 12065, USA. 3 10 . SRI N.NAGARAJ S/O LATE DR. M.NAMASSIVAYA AGED ABOUT 57 YEARS R/AT NO.103, CRESCENT VILLAGE APARTMENTS CLIFTON PARK, N. Y. 12065, USA. 11 . SMT. N.ARUNDATHI D/O LATE DR. M.NAMASSIVAYA AGED ABOUT 56 YEARS R/AT NO.103, CRESCENT VILLAGE APARTMENTS CLIFTON PARK, N. Y. 12065, USA. 12 . SMT. N.DEVAYANI D/O LATE DR. M.NAMASSIVAYA AGED ABOUT 54 YEARS R/AT NO.9, CLOUCESTER ST. CLIFTON PARK, N. Y. 12065, USA. 13 . SMT. N.NITHYA NANDINI D/O LATE DR. M.NAMASSIVAYA AGED ABOUT 52 YEARS R/AT NO.9. GLOUCESTER ST. CLIFTON PARK, N. Y. 12065, USA. 14 . NAMASHIVAYYA ASSOCIATES HAVING ITS OFFICE AT NO.4 OBALAPPA GARDENS, K.R.ROAD YEDIYUR POST, BENGALURU – 560 082 REPRESENTED BY ITS AUTHORIZED SIGNATORY N.D.SADHAKA (PETITIONER NO.1) UNREGISTERED ASSOCIATES.
Legal Reasoning
15 . M/S. ADARSH DEVELOPERS A PARTNERSHIP FIRM AT NO. 10, VITTAL MALYA ROAD BENGALURU – 560 001 REPRESENTED BY ITS PARTNER SRI B.M.KARUNESH 4 REGISTERED UNDER INDIAN PARTNESHIP ACT. PETITIONER NOS. 1 TO 14 ARE REPRESENTED BY GPA HOLDER FOR PETITIONER NO. 15. ... PETITIONERS
Legal Reasoning
(BY SRI D.L.JAGADEESHA, SENIOR ADVOCATE A/W., SMT. RAKSHITHA D. J., ADVOCATE) AND: 1 . SRI K.ANIL KUMAR S/O LATE K.DASHARATHARAMIAH AGED ABOUT 55 YEARS R/AT ‘TRILOKESH’ NO.98/40 30TH CROSS, 7TH BLOCK JAYANAGAR, BENGALURU – 560 082. 2 . SRI K.M.MANJUNATH S/O LATE MAKAM NARAYANA SHETTY AGED ABOUT 58 YEARS R/AT 11/006, IHFD APARTMENTS VASAVI TEMPLE ROAD V.V.PURAM, BENGALURU - 560 004. 3 . SRI K.G.NARASIMHAIAH S/O LATE K.R.GOVINDIAH SHETTY AGED ABOUT 71 YEARS R/AT NO.14, 'SRI LAKSHMI NIVAS' CORNEO ROAD, SHANKARPURAM BENGALURU – 560 004. 4 . SRI P.V.N.PRASAD S/O LATE PUTTARAJAGOPALAIAH AGED ABOUT 69 YEARS R/AT NO.325, 1ST MAIN ROAD BANASHANKARI II STAGE 5 BENGALURU – 560 050. 5 . SRI N.SATHYANARAYANA S/O SRI N.SESHAIAH SHETTY AGED ABOUT 50 YEARS R/AT NO.1629/1, MARUGHI NIVAS 17TH MAIN ROAD BANASHANKARI I STAGE 2ND BLOCK, BENGALURU – 560 050. 6 . SRI A.SUDARSHAN S/O LATE A.RATHNAM SHETTY AGED ABOUT 50 YEARS R/AT NO. 146/8, 16TH MAIN ROAD BANASHANKARI I STAGE 2ND BLOCK, BENGALURU – 560 050. 7 . SRI K.S.NANDAKISHORE S/O SRI K.N.SHANTHAKRISHNAIAH AGED ABOUT 41 YEARS R/AT NO.9-1-145, 2ND CROSS PANDURANGANAGAR, HINDUPUR - 515 201. 8 . SRI A.V.SRINATH S/O LATE A.R.VISWANATH GUPTA AGED ABOUT 42 YEARS R/AT NO.336/1, 'SHIVANAGENDRA NILAYA' K.R.PURAM, BENGALURU – 560 036. 9 . SRI M.RAMACHANDRA S/O LATE G.MUNISWAMAIAH AGED ABOUT 65 YEARS R/AT NO.206, 4TH MAIN ROAD CHAMARAJPET, BENGALURU – 560 018. 10 . SRI G.MURALI S/O LATE G.N.RAGAIAH SHETTY AGED ABOUT 66 YEARS 6 R/AT NO.1, 4TH CROSS K.V.TEMPLE STREET BALEPET CIRCLE BENGALURU – 560 053. 11 . SRI JAGAN MOHANA S/O K.V.RAMAREDDY AGED ABOUT 56 YEARS R/AT NO.2651, 8TH ‘B’ MAIN ROAD BANASANKARI II STAGE BENGALURU – 560 070. ... RESPONDENTS (BY SRI VAIBHAV MALIMATH, ADVOCATE FOR C/R-1) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 23.04.2025, PASSED IN O.S.NO.6773/2011 ON THE FILE OF XXXI ADDITIONAL CITY CIVIL AND SESSIONS, JUDGE, BENGALURU IN REJECTING THE APPLICATION FILED BY PLAINTIFFS IN IA NO.16 AND TO CONSEQUENTLY ALLOW THE SAME AS PER ANNX-A. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 09.06.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioners/plaintiffs are before this Court calling in question an order dated 23-04-2025 passed by the XXXI Additional City Civil and Sessions Judge, Bengaluru on I.A.No.XVI in 7 O.S.No.6773 of 2011 rejecting the application filed by the petitioners seeking amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure. 2. Facts, in brief, germane are as follows: - The averment in the petition is that a partition deed was entered into between M.Kadarappa and his children on 24-03-1961. Under the partition deed, the suit schedule property fell into the share of father of the plaintiffs 1 to 13. On 01-02-2007 all the plaintiffs/petitioners herein executed a joint development agreement in favour of plaintiff No.16 M/s Adarsh Developers, a partnership firm in respect of land in Sy.Nos. 60/4 and 61 at Yediyur Village, Uttarahalli Hobli, Bangalore South Taluk. In furtherance of the joint development agreement, a supplementary agreement was entered into between plaintiffs 1 to 15 and plaintiff No.16 in respect of the same survey numbers. Alleging certain disturbances from the defendants, the plaintiffs institute a suit in O.S.No.6773 of 2011 seeking permanent injunction restraining the defendants from interfering with the peaceful possession of the 8 petitioners. The defendants file their written statement in the suit on 28-01-2012. The concerned Court, then frames issues on 04-01-2013. 12 years passed by. The matter is set at the stage of final arguments after conclusion of evidence. The plaintiffs then come up with an application under Order VI Rule 17 of the CPC seeking amendment of the plaint in I.A.No.16. The defendants object to it by filing objections. The concerned Court, in terms of the impugned order, dismisses the application filed by the plaintiffs. The dismissal of the application is what brings the plaintiffs to this Court in the subject petition. 3. Heard Sri D.L.Jagadeesh, learned senior counsel appearing for the petitioners and Sri Vaibhav Malimath, learned counsel appearing for caveator/respondent No.1. 4. The learned senior counsel Sri D.L.Jagadeesh appearing for the petitioners would contend that the change that is sought by way of amendment to the plaint and the prayer, is change in survey number. The reasons rendered in the application were that due to oversight Sy.No.61 is mentioned in para 2 of the plaint and 9 schedule to the plaint. The same is as found in the joint development agreement. However, there is difference in measurement to the tune of 30,000 sq. ft. in Sy.Nos. 60/4 and 61. This is sought to be corrected by the application so filed. The learned senior counsel submits that what the defendants claimed in their written statement is site No.4118 which is carved out of Sy.No.60/4. Therefore, the present dispute is only in respect of Sy.No.60/4 and as such amendment was sought for deletion of Sy.No.61 in the plaint schedule. He would contend that no prejudice would be caused to any party if Sy.No.61 stood deleted from the schedule to the suit. He would seek to place reliance upon the judgment of the Apex Court in the case of REVAJEETU BUILDERS AND DEVELOPERS v. NARAYANASWAMY AND SONS – (2009) 10 SCC 84 and GANESH PRASAD v. RAJESHWAR PRASAD – 2023 SCC OnLine SC 256 to buttress his submission that the application under Order VI Rule 17 CPC cannot summarily be rejected, if it is not going to change nature of the suit. 5. Per contra, learned counsel Sri Vaibhav Malimath, appearing for the 1st respondent/1st defendant would vehemently 10 refute the submissions to contend that written statement was filed in year 2012. Evidence is led on all the issues qua the suit schedule property which includes Sy.No.60/4 and 61. 13 years have gone after filing of the written statement. The matter is set at the stage of final arguments. At that stage, the application is filed seeking amendment to the plaint, on the ground that amendment is to be carried out in the light of the written statement filed by the defendants. The learned counsel would contend that the written statement was not filed yesterday. It is filed 13 years ago. He would contend that parties to the lis either the plaintiffs or the defendants have to exercise due diligence for amendment of pleadings before framing of issues or the evidence as the case would be. Due diligence in the case at hand has been completely ignored by the petitioners. Such ignorance in law cannot give them benefit of filing an application under Order VI Rule 17 CPC, when the final arguments in the case at hand was got over, after 14 years of institution of the suit and after 13 years of filing of written statement. He would seek dismissal of the petition contending that the order of the concerned Court would not warrant any interference. 11 6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 7. The afore-narrated facts, link in the chain of events and dates are all a matter of record. The issue in the lis is with regard to an application filed under Order VI Rule 17 of the CPC seeking amendment of the plaint qua schedule. Order VI Rule 17 reads as follows: ”17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” (Emphasis supplied) Order VI Rule 17 deals with amendment of pleadings. It allows grant of relief to a party to alter or amend his pleadings at any stage of the proceedings, provided the amendment is necessary to 12 determine the real issues in controversy between the parties. Order VI Rule 17 was subject matter of misuse by filing applications at any stage of the proceedings and the proceedings were being dragged on. Therefore, the legislature introduced the proviso. The proviso limited the power of the Court to allow the application for amendment of the plaint at any stage of the proceedings. This was initially omitted by Act 46 of 1998. Noticing the fact that it had created chaos, to strike a balance, the proviso was re-introduced by Act 22 of 2002 with effect from 01-07-2002. This re-insertion borne consideration at the hands of the Apex Court. This is considered by the Apex Court in the case of KAILASH V. NANHKU–(2005) 4 SCC 480 and AJENDRAPRASADJI N PANDEY v SWAMI KESHAVPRAKESHDASJI - (2006)12 SCC 1. Both these judgments bear consideration of the Apex Court in a subsequent judgment in the case of VIDYABAI v. PADMALATHA1 wherein the Apex Court has held as follows: “14. In Kailash v. Nanhku [(2005) 4 SCC 480] this Court held: (SCC pp. 490-91, para 13) “13. At this point the question arises: when does the trial of an election petition commence or what is the 1 (2009) 2 SCC 409 13 meaning to be assigned to the word ‘trial’ in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word ‘trial’.” 15. We may notice