DAED

05.08.2016

PASSED

INTERLOCUTORY APPLICATION NO.25 IN O.S.NO.292/2015

ON THE FILE OF THE HON'BLE CIVIL JUDGE AND JMFC,

MOODABIDRI, D.K. WHICH IS PRODUCED AT ANNEXURE-A.

THIS

PETITITON

COMING

ON

FOR

PRELIMINARY

HEARING THIS DAY, COURT MADE THE FOLLOWING:

O R D E R

The instant writ petition is filed by the plaintiff with

a prayer to quash the order dated 05.08.2016 passed on

I.A.No.25 in O.S.No.292/2015 by the Civil Judge & JMFC,

Moodabidri, D.K., vide Annexure-A.

Heard the learned Counsel appearing for the

parties and perused the material available on record.

Brief facts of the case as revealed from the

records are, that the plaintiff/petitioner had filed

OS.No.292/2015 before the Trial Court with a prayer for

decree of specific performance of the agreement of sale

dated 13.10.2011. During the pendency of the suit, a

portion of the suit schedule property was acquired by the

National Highway Authority and it is under these

circumstances, the plaintiff had filed I.A.No.25 under

3

Order VI Rule 17 of CPC before the Trial Court to bring

the subsequent events on record and also to reduce the

extent of the suit schedule property accordingly.

4.

The

said

application

was

opposed

by

defendant Nos.1 and 2 with whom the plaintiff had

entered into an agreement for sale. The Trial Court vide

order impugned had dismissed the application filed by

the plaintiff under Order VI Rule 17 of CPC. Being

aggrieved by the same, the petitioner/plaintiff is before

this Court.

5.

Learned Counsel appearing for the petitioner

submits that the proposed amendment is nothing but

subsequent events which are sought to be brought on

record. He submits that defendant Nos.1 and 2 have

received compensation in respect of the portion of the

suit schedule property, which is acquired by the National

Highway Authority during the pendency of the suit. He

also submits that if the proposed amendment is not

allowed and in the event of the Trial Court decreeing the

suit, he will not be in a position to execute the decree. He

submits that this Court in W.P.No.55337/2018 in similar

4

circumstances has allowed the writ petition, where the

application for amendment was filed at the stage of

recording the evidence of the parties.

6.

Per contra, learned Counsel appearing for the

respondents submits that the Trial Court was justified in

dismissing the application since the same is filed after the

trial had commenced. He submits that the very

amendment would frustrate the agreement in view of the

alleged acquisition of the portion of the property and

therefore the proposed amendment cannot be allowed.

7.

I have given my anxious consideration to the

arguments addressed by the learned counsel for the

parties and also perused the material available on record.

8.

The plaintiff has filed I.A.No.25 seeking to

bring on record the subsequent events which have taken

place during the pendency of the suit. In the proposed

amendment, it is stated that a portion of suit schedule

property has been acquired by the National Highway

Authority for widening the national highway during

pendency of the said suit. Therefore, the suit schedule

property is accordingly required to be reduced.

5

9.

The contention of the learned counsel for the

petitioner that a portion of the schedule property has

been acquired by the National Highway Authority is not

seriously disputed by the respondents. The question

whether the acquisition of a portion of the suit schedule

property would frustrate the agreement could not arise

for consideration while considering the application made

by the plaintiff seeking amendment of the plaint by

bringing on record the subsequent events, which has

taken place during the pendency of the suit and by

seeking consequential amendment of reducing the extent

of suit schedule property. Since a portion of suit schedule

property is undisputedly acquired, I find force in the

arguments of learned counsel for petitioner, that if the

proposed amendment is not allowed, the decree granted

if