1 in the High Court of Karnataka at Bengaluru
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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27 TH DAY OF APRIL 2015 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY WRIT PETITION NO.51254 OF 2014 (GM-CPC) BETWEEN: 1. SRI S BYREGOWDA S/O M SRINIVAS, AGED 32 YEARS, 2. KUMARI MADHU D/O M SRINIVAS AGED 26 YEARS, 3. MASTER ANIL KUMAR S/O M SRINIVAS AGED 26 YEARS, ALL THE PETITIONERS ARE RESIDING AT HENNUR VILLAGE KASABA HOBLI, BENGALURU NORTH TALUK – 43. ... PETITIONERS (BY SRI T SESHAGIRI RAO, ADVOCATE) AND: 1. SRI N RAMASWAMY S/O N NALLASWAMY AGED ABOUT 34 YEARS, 2 2. SMT MARIYAMMAL W/O NALLASWAMY, AGED ABOUT 65 YEARS, 3. SMT PAPATHI W/O R SUBRAMANI, AGED ABOUT 42 YEARS 4. SMT LAKSHMI W/O M MURUGAN, AGED ABOUT 40 YEARS, 5. SMT SAROJA W/O R PALANISWAMY AGED ABOUT 38 YEARS, 6. SRI A CHINNASWAMY S/O ALAGIRISWAMY, AGED ABOUT 59 YEARS, THE RESPONDNETS 1 TO 6 ARE RESIDING AT HENNUR BANDE, KASABA HOBLI BENGALURU NORTH TALUK – 43. 7. SRI M SRINIVAS S/O MARAPPA, AGED 45 YEARS, RESIDING AT HENNUR CROS, NEAR SHANIMAHATMA TEMPLE, KASABA HOBLI, BENGALURU NORTH TALUK – 43. 8. SMT YASHODAMMA W/O LATE RAMACHANDRA, AGED 58 YEARS, RESIDING AT NO.447/3, SUBBAYYANAPALYA, BANASAWADI MAIN ROAD, 3 BENGALURU – 43. 9. SRI VERGEES V APPILEYIL S/O A G DANIEL AGED 58 YEARS, R/AT NO.24, HUTCHINS ROAD 6 TH CROSS B S A ROAD CROSS,FRAZER TOWN, ST THOMAS TOWN, BENGALURU – 84. 10. SMT SUSY VEREESE W/O VERGESE V APPILEYIL MAJOR, RESIDING AT NO.24, HUTCHINS ROAD, 6 TH CROSS, BSA ROAD CROSS, FRAZER TOWN, ST.THOMAS TOWN, BENGALURU – 84. 11. SRI GEORGE PHILIP S/O GEORGE M L MAJOR, RESIDING AT NO.1616 KAMMANAHALLI, ST.THOMAS TOWN POST BENGALURU – 84. 12. SMT MUNILAKSHMAMMA W/O K VENKATASWAMY, MAJOR, RESIDING AT NO.51 KACHRAKANAHALLI, ST.THOMAS TOWN POST, BENGALURU – 84. 13. SMT G MANJULA W/O MANI, MAJOR RESIDING AT VENKATESHPURA, ARABIC COLLEGE POST, BENGALURU – 45. 14. SMT S SUBBAMMA W/O C NARAYANA MAJOR, RESIDING AT NO.SUBBAYANAPALYA, 4 M S NAGAR POST BENGALURU – 33. 15. SRI SUBBAYYA S/O C NARAYANASWAMY, MAJOR, RESIDING AT SUBBAYANAPALYA, M S NAGAR POST, BENGALURU – 33. 16. SRI CHANDRAPPA S/O MUNISWAMAPPA, RESIDING AT KACHARAKANAHALLI, KALYANA NAGAR POST, BENGALURU NORTH TALUK, BENGALURU. 17. MRS RAJANI JACOB JOHN W/O JOCOB JOHN RESIDING AT 20 TH ‘ B’ MAIN ROAD 1ST ‘R’BLOCK, RAJAJINAGAR, BENGALURU – 10. 18. SRI T A VIJAY KUMAR S/O ANJANELU, MANAGING DIRECTRO, SHANTHI REALTORS PVT LTD FLAT NO.16, 200, DEFENCE COLONY BENGALURU – 38. 19. SRI G NAGESHWARA RAO S/O RANGAIAH, REPRESENTED BY PA HOLDER SRI SUDHAKAR, S/O RADHAKRISHNA REDDY, # 5, 1 ST FLOOR , COMMANDERS PLACE, NO.6, R R M R ROAD, RICHMOND CIRCLE, BENGALURU – 25. 20. SMT SANGEETHA BENGANI (JAIN) W/O SI MULENDRA BENGANI (JAIN) 5 AGED ABOUT 36 YEARS, RESIDING AT NO.22/1, K KAMARAJA ROAD, BENGALURU – 42. 21. SRI HEMANTH JAIN S/O THANMAL JAIN, AGED ABOUT 42 YEARS, RESIDING AT NO.J-640, SENAVIHAR KAMMANAHALLI, II MAIN, BENGALURU - 04 22. SMT S ELIZEBETH MARY W/O P R VENUGOPAL AGED ABOUT 33 YEARS, RESIDING AT NO.66, RAMAMURTHY BUILDING, KAMMANAHALLI, ST.THOMAS TOWN POST, BENGALURU – 84. 23. SRI CHINNAPPA DASS S/O ANTHONY AGED ABOUT 44 YEARS, RESIDING AT NO.191/17, APPAIAH LAYOUT, SUBBAYANAPALYA, M S NAGAR POST, BENGALURU – 33. 24. SRI RAJESH GOPAL S/O V B GOPAL, AGED ABOUT 28 YEARS, RESIDING AT NO.1/6, 4TH CROSS, DEVEGOWDA LAYOUT, ADUGODI, BANGALORE-30 25. SMT REENA MOHAN W/O MOHAN GEORGE, AGED ABOUT 35 YEARS, RESIDING AT NO.3, 4 TH CROSS, BANASWADI ROAD EXTENTION, BENGALURU – 33. 6 26. SRI K BABURAJAN S/O K KANCHU EZUTHACHAN, AGED ABOUT 34 YEARS, RESIDING AT C/O IMPRINT, NO.1190, KAMMANAHALLI, EXTENTION, BENGALURU – 84. 27. SMT VIMALA W/O ASHOK CHAND AGED ABOUT 39 YEARS, RESIDING AT NO.222, OPH ROAD, JAIN TEMPLE, BENGALURU – 51. 28. SRI M ASHOK CHAND S/O LATE MANGAL CHAND, AGED ABOUT 41 YEARS, RESIDING AT NO.222, OPH ROAD, JAIN TEMPLE, BENGALURU – 51. 29. SRI NARAYANA S/O LATE BOGRA POOJARY, AGED ABOUT 34 YEARS, RESIDING AT HENNUR CROSS, KALYAN NAGAR POST, BENGALURU – 43. 30. SMT PADMAVATHI W/O B KRISHNA AGED ABOUT 32 YEARS RESIDING AT HENNUR CROSS, KALYAN NAGAR POST, BENGALURU – 43. 31. SRI NAGESHWARA RAO S/O G RANGAIAH, MAJOR, 7 RESIDING AT PUDUGUPADU, NELLORE DISTRICT ANDHARA PRADESH – 520 105. 32. SMT SAROJAMMA W/O RAMACHANDRA RESDDY MAJOR RESIDING AT KORURET, NELLORE DISTRICT, ANDHRA PRADESH – 520 105. 33. THE COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY BENGALURU. 34. SRI PANDARINATHA R K S/O SRI C KRISHNAPPA MAJOR, R/AT REDDIHALLI VILLAGE, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT – 567 215. 35. SRI JOSEPH THANNICKAL S/O MR SAMUEL AGED ABOUT 76 YEARS, 36. MRS SRAMMA JOSEPH W/O MR JOSEPH AGED ABOUT 74 YEARS, RESPONDENTS 35 & 36 ARE R/AT NO.24, HUTCHINS ROAD, 6TH CROSS, ST.THOMAS TOWN, BENGALURU -560 084. 37. SMT CHINNAMA W/O M SUBBAIAH, MAJOR, DODDABANASAWADI, BUDDANNA COLONY, DODDABANASAWADI POST, 8 BENGALURU – 43. ... RESPONDENTS [BY SRI M B PRABHAKAR, ADVOCATE FOR R33 SRI M.A.SEBASTIAN, ADVOCATE FOR R11, R20, R22, R23, R26, R29 & R30, R3, TO R7, R9, R10, R12, R13, R16, R17, R20, R23, R25, R27, R28, R34, R35 & R36 ARE SERVED & UNREPRESENTED, NOTICE TO R1, R2, R8, R11, R14, R15, R18, R19, R21, R24, R31, R34, R37 IS DISPENSED WITH VIDE ORDER DATED 15.4.2015] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 7.10.2014 ONE PASSED BY THE XXXVIII ADDL. CITY CIVIL JUDGE,BANGALORE ON I.A.NO. 15 FILED UNDER ORDER 6 RULE 17 OF CPC IN O.S. NO. 1469/2002 VIDE ANN-D THIS WRIT PETITION COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY AFTER HAVING HEARD AND RESERVED FOR ORDERS ON 15.4.2015, THE COURT MADE THE FOLLOWING:: O R D E R This writ petition is filed seeking to quash the order dated 7.10.2014 on I A No.15 in O S No.1469/2002 on the file of the XXXVIII Additional City Civil Judge, Bangalore produced at Annexure-D to the writ petition. By the order impugned, the court below rejected the application for amendment of the plaint. 9 2. The facts to be stated in brief are that plaintiffs filed suit on 2.3.2002 for the relief of declaration that the suit schedule properties are the ancestral property of the plaintiffs and defendant NO.7, plaintiffs are entitled to 3/4 th share and put them in separate possession, for mesne profits and to declare that the sale deed dated 15.3.1989 executed by defendant No.7 in favour of defendants 1 to 6 does not bind the plaintiffs as it was not sold either for legal necessity or for the benefit of family or for discharging the antecedent debts. 3. Initially, suit was filed only against defendants No.1 to 8. The court below by the order dated 23.7.2009 permitted to implead defendants 9 to 36 in the case. 4. By the application, I A No.15 filed on 16.8.2014 seeking to amend the plaint to add para 3(a) to give details of the alienations made by defendant NO.7. The plaintiffs also wanted to add some more properties in the schedule to the plaint, after Schedule-B and further prayer of declaration to hold that various sale deeds from 28.10.1988 till 10.11.2003 and GPA executed by defendant NO.7 in favour of other defendants do not bind the 10 plaintiffs’ share in Schedule B & C properties. In the original plaint, the plaintiffs have sought for a declaration to hold that sale deed dated 15.3.1989 executed by defendant No.7 in favour of defendants No.1to 6 is not binding on them. Now by way of amendment, the plaintiffs want to give details about alienations made by defendant No.7 from 28.10.1988 till 10.11.2003 and dispute the binding nature of the same on the plaintiffs. 5. The court below by the impugned order rejected the application on the ground that the plaintiffs filed suit in the year 2002, brought the additional defendants No.8 to 36 on record in the year 2003 but did not exercise due diligence in seeking to incorporate the alienations and the prayer to declare that the said alienations are not binding on them up to the year 2014 by filing the present application. The plaintiffs failed to exercise due diligence at appropriate time thereby the right accrued to the defendants cannot be taken away by allowing such an amendment. The said order is impugned in the present writ petition. 11 6. I have heard the learned counsel for the plaintiffs and learned counsel for the respondents and perused the impugned order. 7. The point that arises for consideration is, whether the impugned order calls for interference under Article 227 of the Constitution of India? My answer would be in the negative for the following reasons. 8. The suit was filed in the year 2002 for the relief of declaration that the suit schedule properties are the ancestral properties, plaintiffs are entitled to 3/4 th share, partition and separate possession of their share by metes and bounds and a further declaration that the sale deed dated 15.3.1989 is not binding on them. In the year 2003 the plaintiffs by way of amendment impleaded defendants No.8 to 36 claiming them to be purchasers.