SRI. MANJUNATH Vs. SRI. TAYAPPA AND OTHER

JUDGEMENT

(1.) Petitioner is challenging the order dated 9.10.2014 passed by the V Addl. City Civil Judge, Bangalore, in O.S.No.6867/2007 by which I.A.No.10 filed under Order 6, Rule 17 of the Code of Civil Procedure (for short 'the CPC') is rejected, under Article 227 of the Constitution of India.

(2.) For the sake of convenience the parties are referred to as per their ranking before the trial Court.

(3.) The petitioner herein who is the plaintiff before the trial Court in O.S.No.6867/2007 has sought for specific performance of the agreement of sale dated 14.12.1988 and execution of sale deed in his favour. It is the case of the plaintiff that the defendant filed his written statement. In the agreement of sale it was agreed to sell the schedule property after completion of ten years, since the said site was allotted by BDA, wherein there was a clause not to sell the site for a period of ten years. It is the case of the petitioner that the respondent herein, who is the defendant before the trial Court had filed written statement and in the written statement, the defendant has not made averment with regard to final sale deed executed by the BDA after the lease period of ten years or with regard to the gift made by the defendant in favour of his son. Subsequently the petitioner herein has impleaded the son of defendant as defendant No.2 in the suit. It is the further case of the plaintiff that only in the affidavit evidence at paragraph 6, the defendant has stated that BDA has executed the final sale deed after completion of the lease period of ten years. It is further submitted that when the plaintiff verified the encumbrance, it came to the knowledge of the plaintiff that the defendant had also gifted the property in favour of his son. Therefore, it became necessary for him to file the application under Order 6, Rule 17 of CPC to include certain events which are necessary for proper adjudication of the lis. The respondent herein filed his objection to the said I.A. contending that the amendment is not necessary for determination of real controversy between the parties and further it is contended that the schedule property was gifted to his son in the year 2001 itself, which fact was well within the knowledge of the plaintiff. Therefore, he prayed for dismissal of the application. The trial Court by its order dated 9.10.2014 rejected the application filed by the plaintiff under Order 6, Rule 17 of CPC. While dismissing the application, the trial Court has observed that in the suit when pleadings are complete, issues are framed and the suit is at the stage of cross-examination of DW.1 I.A.No.10 is filed for amendment and further it is observed that the plaintiff is silent about excise of due diligence before filing the suit. As the plaintiff has not narrated the facts properly, the trial Court rejected the application.