D. THILAKAN S/O LATE DEVADAS NAIDU Vs. SKYLARK MANSIONS PVT. LTD., REPRESENTED BY ITS MANAGING DIRECTOR, MR. SALEEM SHERIFF

JUDGEMENT

(1.) AND plaintiff is the petitioner. Respondent is the sole defendant. Suit filed on 05.06.2004 is for the relief of permanent injunction to restrain the defendant from interfering or causing encumbrances to the suit schedule property. Written statement was filed by the defendant on 30.07.2004. The petitioner contends that, their advocate has played fraud in filing injunction suit, instead of filing the suit for specific performance and alleges that, there is collusion. A complaint has been lodged in the Bar Council of Karnataka on 09.02.2005. The trial court has framed the issues on 03.01.2006 and the suit was posted for trial. The complaint lodged against P.S. Rajendran, advocate, by the petitioner, having found to be meritorious by the Karnataka Bar Council, by its order dated 07.01.2007, he was suspended for a period of three years and was directed to pay Rs. 5000/ - towards cost to the complainant/petitioner.

(2.) PLAINTIFF /petitioner filed I.A No. 2 on 30.03.2007 seeking permission of the court to amend the plaint and to incorporate the relief of specific performance. Defendant/respondent filed objection to I.A No. 2 on 02.06.2007. Said application was rejected by the trial court on 18.12.2009.

(3.) LEARNED Counsel appearing for the petitioners contended that, the trial court has failed to exercise the jurisdiction vested in it under Order 6 Rule 17 of C.P.C., since it has passed the orders mechanically without taking into consideration the fact that fraud had been played on the plaintiffs by their advocate, against whom complaint was lodged with the Bar Council of Karnataka, which having been found to be meritorious, was allowed and the advocate has been suspended and I.A. No. 3 was filed immediately thereafter. Learned Counsel submitted that, the fraud unravels everything and the period of limitation does not run, since most solemn proceedings are vitiated if they are tainted with fraud. Learned Counsel submitted that, the trial court has misdirected itself and has passed the impugned orders, which if allowed to stand, would cause irreparable loss and prejudice to the petitioner. It was submitted that, the trial court has gone into the merit of the amendment prayed, which is not permissible at this stage of the proceedings and since the impugned orders are irrational and illegal, interference is called for.