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2020 DIGILAW 1055 (KAR)

H. M. SHARATH v. N. D. BHAGYAVATHI, W/O LATE S. R. NAGARAJ

2020-06-11

SURAJ GOVINDARAJ

body2020
ORDER : The petitioners who are the defendants in the Trial suit are before this Court seeking for a certiorari to quash the order dated 05.08.2019 passed on I.A.No.8 filed under Order VI Rule 17 of the Code of Civil Procedure in O.S.No.48 of 2013 pending on the file of the Principal Civil Judge and JMFC, Somwarpet and for allowing of the said Interlocutory Application No.8. 2. The facts briefly stated are that the respondents who were the plaintiffs in the suit claiming to be the wife and children of late S.R.Nagaraj have filed a suit against the petitioners who are arrayed as defendants seeking for specific performance of the alleged Agreement to Sell dated 04.01.2005 which is allegedly executed by the petitioners in favour of late S.R.Nagaraj. In the said suit, the petitioners who are defendants entered appearance through their advocate and filed their written statement. In the said written statement, it is categorically denied that no such agreement of sale has been executed. The transaction is one for loan where the defendants had obtained a loan of Rs.70,000/-from late S.R.Nagaraj towards which the defendants have signed blank papers and handed over the same to late S.R.Nagaraj. It is also stated that misusing these signed blank papers, the plaintiffs or their predecessor S.R.Nagaraj have converted the blank signed papers into an agreement of sale with an intention to gain the defendants property illegally. In the said written statement, it is also alleged that S.R.Nagaraj during his lifetime never requested for or demanded for the execution of the sale deed and is only on his death, the plaintiffs have filed a false and frivolous suit. 3. Subsequently to the evidence being led, the petitioners filed an application under Order VI Rule 17 of the Code of Civil Procedure seeking for amendment of the written statement filed by introducing new paragraph No.12A so as to contend that the alleged agreement of sale dated 04.01.2005 is a rank forged document created by the plaintiffs or their predecessor, in collusion with the alleged attesting witnesses and the scribe. The said amendment was sought for on the ground that by oversight or due to inadvertence, there is no specific pleading with regard to the fact of forgery of the said document by the plaintiff and it is only upon the change of the advocate, the new advocate advised the first defendant to incorporate the above amendment. 4. The said application came to be objected by the plaintiff and considering the same, the Trial Court dismissed the application holding that the plaintiffs evidence is completed, defendant No.1 had already been examined and the matter was posted for further cross-examination of the defendant. Considering the amendment made to Order VI rule 17 of the Code of Civil Procedure and holding that there are no bonafides on part of the petitioners and the petitioners have not been able to establish that despite exercising their due diligence were unable to incorporate the said amendment sought for, the Trial Court had dismissed the said application. 5. Aggrieved by the said order, the petitioners are before this Court contending that the order of the Trial Court contain several lacunas and the Trial Court ought to have allowed the application instead of rejecting the same. 6. Sri.K.V.Girish, learned counsel for the petitioners/defendants reiterates the submissions made in the writ petition and contends that the order of the Trial Court is required to be quashed and the application for amendment is required to be allowed. 7. Having perused the written statement already filed and comparing the same with the amendment as sought for as also with the averments made in support of the amendment application and on hearing, it is seen that the petitioners by abundant caution want to plead forgery by using the word “specifically” and therefore has sought for the amendment by introduction of paragraph No.12A to the written statement. 8. A perusal of the written statement already filed would categorically indicate that the written statement already contains averments as regards forgery and or fabrication alleged to have been committed by the plaintiffs and or their predecessor in as much as in the written statement, the execution of the alleged agreement of sale is denied, which would essentially mean that the agreement of sale relied upon by the plaintiffs is a forged document. Further more, the defendants in the written statement have stated that the plaintiffs have converted the blank signed document into document of sale agreement which would also essentially mean a forgery or a fabrication. In the above background, the ingredients of forgery and of fabrication having already been pleaded in the written statement filed, there would be no requirement for further clarification of the same by seeking for the amendment as sought for. I am of the considered opinion that the pleadings as filed are sufficient for the Court to consider the allegations as regards fabrication or forgery. The application as filed is redundant and not necessary. Hence, without ordering notice on the respondents, the writ petition is dismissed in terms above.