Research › Search › Judgment

Karnataka High Court · body

2006 DIGILAW 643 (KAR)

M. H. MALIK v. T. VENKATASWAMY REDDY

2006-08-07

D.V.SHYLENDRA KUMAR

body2006
ORDER D.V. Shylendra Kumar, J Writ petition is directed against the order dated First July, 2006 on an application filed under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, in pending O.S. No. 8329 of 1995 on the file of the Court of XVII Additional City Civil Judge, Bangalore (CCH16), rejecting the application for amendment of the written statement. 2. The application for amendment of the written statement filed by the first defendant in the suit was undisputedly after a period of four years of amendment of the plaint in the suit. The Trial Court being of the view that allowing the application will alter the nature of the defence set up by the applicant-defendant, rejected the application. Aggrieved by this order, the present petition is filed. 3. Submission of Sri Ramalingam, learned Counsel appearing for the petitioner is that the Trial Court was of the erroneous view that allowing the application would alter the nature of defence; that earlier pleading as is available on record and the material that has been placed amply indicates the justification for the amendment sought for by the petitioner-defendant and even after the amendment, the defence set up by the defendant in the suit for specific perfo rmance would not materially alter, etc. 4. Notice has been issued to the respondent. He has not appeared and report of service on the respondent is still awaited. The cause list indicates: “Emergent notice issued on 2-8-2006”. Learned Counsel Mr. Ramahngam draws the attention of this Court to a memo that had been filed on behalf of the writ petitioner indicating that the copy of the writ petition has been served on the Advocate appearing for the plaintiff before the Trial Court on 2-8-2006, apprising the Counsel that the matter is likely to come up before the Court during this week. 5. Be that as it may, the fact remains that the respondent is not represented before the Court and it is not clear whether the respondent has been effectively served. In the light of the facts and circumstances of the case this aspect cannot assume much importance. 6. I am of the view that the application is to be allowed by imposing commens urate costs on the applicant/petitioner, seeking for amendment of the written statement. In the light of the facts and circumstances of the case this aspect cannot assume much importance. 6. I am of the view that the application is to be allowed by imposing commens urate costs on the applicant/petitioner, seeking for amendment of the written statement. 7 In the circumstances, impugned order is set aside and the application is allowed imposing costs of a sum of Rs. 10,000/- payable by the writ petitioner-applicant to the respondent-plaintiff on the next date of hearing before the Trial Court, which the learned Counsel submits to be on 10th of this month or within a week thereafter, by tendering the amount to the respondent or by depositing the amount before the Trial Court. If the cost is not paid as ordered, this order stands dissolved and the order passed by the Trial Court remains. Liberty is also reserved to the respondent-plaintiff to seek for modification if the term for allowing the application is not acceptable to the defendant-writ petitioner, and if the respondent seeks further examination on the merits of the matter. The Trial Court is directed to proceed in accordance with this order. Writ petition is disposed of accordingly. Rule issued and made absolute.