M.N. JANAKI Vs. K.G. VENKATESH

JUDGEMENT

(1.) THE respondent herein has filed on 28.01.2005 in the City Civil Court, Bangalore, O.S.No.789/2005 against the petitioners herein/defendants, to pass a Judgment and Decree of specific performance of a contract in terms of an agreement of sale dated 05.09.1992. The petitioners herein/defendants have filed joint written statements on 02.07.2005. The plaintiff filed an application seeking amendment of the plaint and the same was allowed on 24.07.2006. Issues having been raised based on the pleadings of the parties, the trial of the suit has commenced. On 20.07.2009, the plaintiff filed an affidavit, in lieu of examination in chief and has marked Exs.P1 to P9. On 08.02.2010, Ex.P10 and P11 were marked through PW.1. The suit having been adjourned, the plaintiff engaged another counsel on 28.07.2010 and on 28.09.2010, filed I.A.No.4 under Order VI Rule 17 of CPC, to amend the plaint in the manner proposed therein. Though statement of objections was filed to I.A.No.4 and the claim was opposed, the learned Trial Judge has allowed the application, by an order dated 19.08.2011. Feeling aggrieved, the defendants have filed this writ petition and have sought quashing of the order passed on I.A.No.4 by the Trial Court.

(2.) SRI Ashok R. Kalyanashetty, learned advocate appearing for the petitioners contended that the trial of the suit having been commenced and I.A.4 has been filed seeking permission to amend the plaint, the Trial Court having not arrived at the conclusion that in spite of due diligence, the plaintiff could not have raised the proposed pleading/matter before commencement of the trial, has committed a material error and illegality in allowing I.A.4 and permitting the plaintiff to incorporate the proposed amendment in the plaint. He submitted that the tenable objections field by the defendants to I.A.4 has not been considered, keeping in view the proviso under Rule 17 of Order VI of CPC and the interpretation placed on the said provisions in catena of decision of the Apex Court and this Court. Learned counsel submitted that there being absence of any due diligence on the part of the plaintiff, the Court having not arrived at the conclusion that in spite of due diligence the plaintiff could not have raised the pleading/matter before commencement of the trial, has committed illegality in allowing I.A.4. Reliance was placed on the decisions in the cases of (i) Baldev Singh & others V/s Manohar Singh & another - (2006) 6 SCC 498 (ii) Rajesh Kumar Aggarwal & others V/s K.K. Modi & others - AIR 2006 SC 1647 (iii) J. Samuel & others V/s Gattu Mahesh and others - 2012 AIR SCW 1035 and (iv) Smt. Shobha Surendar and another V/s Sri. C.R. Nagaraja Setty and others - 2011 (4) KCCR SN 413.

(3.) IN view of the rival contentions and the record of the writ, there being no dispute that I.A.4 was filed after trial of the suit has commenced, the point for consideration is, "whether the Trial Court has committed any illegality in allowing I.A.4?"