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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 13^TH DAY OF JANUARY, 2021

BEFORE

THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

WRIT PETITION NO.42715 OF 2015(GM-CPC)

BETWEEN:

SRI P SETHUMADHAVAN

S/O M. SHIVASHANKARAN NAIR

AGED ABOUT 60 YEARS,

R/AT NO.55, 9TH "A" CROSS

GOKULA I STAGE, I PHASE,

BANGALORE-560 054.

…PETITIONER

(BY SRI.V.VISWANATH SETTY, ADV.)

AND:

SRI M SHANKAR REDDY

S/O LATE MUNIYAPPA NREDDY

AGED ABOUT 64 YEARS

R/A. NO.78, 24TH MAIN,YELLAMMA DEVI NIYALA

AGARA VILALGE, SARJAPUR ROAD,

BANGALORE-560 034.

PRESENTLY RESIDING AT

NO.663/A, 13TH CROSS, 27TH MAIN,

1ST SECTOR HSR LAYOUT,

BENGALURU-560 102.

…RESPONDENT

(BY SRI.G.V.SHASHI KUMAR, ADV.)

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER

DATED: 10.07.2015 PASSED BY THE ADDITIONAL CIVIL JUDE &

JMFC AT ANEKAL IN O.S.NO. 707/2008 ON I.A.NO. 5 UNDER

ORDER 6 RULE 17 R/W SECTION 151 CPC ANNEXURE-H BY THE

ALLOWING THE ABOVE WRIT PETITION AND ETC.

THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'

GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

This petition by the plaintiff in O.S.No.707/2008 is

directed against the impugned order dated 10.07.2015 on

the file of the Additional Civil Judge and JMFC, Anekal

whereby the application I.A.No.5 under Order VI Rule 17

read with Section 151 of CPC for amendment of plaint filed

by the petitioner was rejected by the trial Court.

2.

Heard learned counsel for the petitioner and

learned counsel for the respondent and perused the

material on record.

3.

The material on record indicates that it is not in

dispute that the aforesaid suit for Perpetual Injunction and

other reliefs filed by the petitioner-plaintiff in respect of the

suit schedule immovable property was originally instituted

on 15.12.2008. It is also not in dispute that the defendant

filed his written statement on 22.06.2009. On 07.04.2012,

the plaintiff filed the instant application I.A.No.5 seeking

amendment of the plaint by seeking to incorporate

additional prayers for specific performance and by making

necessary amendment to the body of the plaint also. The

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said application having been opposed by the defendant, the

trial Court proceeded to pass the impugned order rejecting

the application, aggrieved by which, the plaintiff is before

this Court by way of the present petition.

4.

A perusal of the impugned order will indicate

that the trial Court has rejected the application on the

ground that the proposed amendment changes the nature

of the suit and its cause of action and no ground was made

out by the petitioner to establish that the proposed

amendment was necessary to determine the real issue in

controversy between the parties.

5.

Perusal of the plaint averments will indicate

that it is specifically pleaded that on 20.05.2002, defendant

executed an Agreement to sell in favour of the plaintiff

agreeing to sell the suit schedule immovable property in his

favour after receiving valuable advance sale consideration

from him; subsequently, more advances were received by

the

defendant

from

the

plaintiff

and

necessary

endorsements were made in the agreement in this regard;

in the endorsement dated 25.08.2003, both parties have

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mutually agreed to extend the time stipulated for

completion of the sale transaction up to 18.04.2009.

6.

As stated supra, the suit was filed on

15.12.2008. After having pleaded that the defendant was

trying to alienate and put up constructions on the suit

schedule property during the subsistence of the aforesaid

Agreement to sell dated 20.05.2002, plaintiff pleaded at

paragraph 8 of the plaint that he was specifically reserving

his right to seek specific performance since the Agreement

continued to remain valid and subsisting up to 18.04.2009.

7.

In the application, I.A.No.5 filed by him, plaintiff

sought to incorporate the relief of specific performance by

making corr