Karnataka High Court
Rachayya S/O Gurupadayya Kambi, vs Parvotewwa Huchappa Chikkanaragund, on 23 March, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF MARCH, 2017
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
WRIT PETITION No.109955/2015 (GM-CPC)
Between:
Rachayya son of Gurupadayya Kambi,
Age: 63 years, Occupation: Business,
Resident of Guledagudda, Taluk: Badami,
District: Bagalkote. ... Petitioner
(By Shri Shriharsha A Neelopant, Advocate)
And:
Smt. Parvotewwa Huchappa Chikkanaragund,
Age: 58 years, Occupation: Business,
Resident of Guledagudda, Taluk: Badami,
District: Bagalkote. ... Respondent
(By Shri Naveen R Melinamani for
Shri Jagadish Patil, Advocate)
This petition is filed under Articles 226 and 227 of the
Constitution of India, praying to quash the impugned order
dated:15.07.2015 passed by Additional Civil Judge and JMFC., Court
Badami sitting at Guledgudda in O.SNo.125 of 2012 on I.A.No.3
filed under Order 6 Rule 17 of Code of Civil Procedure filed by the
plaintiff seeking amendment of the plaint as per Annexure-A and
allow the I.A.No.3 filed by the plaintiff.
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This petition coming on for preliminary hearing in 'B' group,
this day, the Court made the following:
ORDER
The present petition is filed by the plaintiff. The suit was filed for a mandatory injunction seeking a direction to the defendant to close the windows in what is described as a 'common wall' on the eastern side of the plaintiff's' property which is to the west of the defendant's property and for a permanent injunction restraining the defendant from obstructing from the use and enjoyment of the common wall.
2. The respondent had entered appearance and had filed a written statement denying that there was a common wall. The trial Court had framed issues and the matter was set down for the plaintiff's evidence. It is at that stage the plaintiff had filed an application seeking to incorporate a prayer for a declaration that the common wall was in existence. The trial Court has rejected the application on the ground that it is belated and that it would change the nature of the suit.
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3. From a reading of Order XIV Rule 1 of the Code of Civil Procedure 1908, one of the issues that would necessarily have to be framed if there is a denial by the defendant of the plaintiff's assertion as to the existence of a common wall, it would give raise to an issue and if there is no such issue framed, the trial Court shall frame such an issue as it is an obvious issue that ought to have been framed. If this exercise is carried out, the object and purpose of the plaintiff- petitioner is served. Therefore, even if the application for amendment has been rejected, the cause of the plaintiff would be adequately addressed, if such an issue is framed as aforesaid.
The trial Court is accordingly requested to frame such an issue and give its finding thereon.
Sd/-
JUDGE Jm/-