Karnataka High Court
Sri. Shadaksharappa vs Kumari Vijayalaxmi And Ors on 6 November, 2020
Author: Chief Justice
Bench: Abhay S. Oka
1
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. ABHAY S. OKA, CHIEF JUSTICE
WRIT PETITION NO.201956/2018 (GM-CPC)
BETWEEN
Shri Shadaksharappa
S/o Veranna
Age 53 years
Occ: Business
R/at Ward No.7
Katibase, Sindhnur
Raichur District
...Petitioner
(By Shri Mahantesh Patil, Advocate)
AND
1. Kumari Vijayalaxmi
D/o Pampanna
(W/o Veeresh Ghanmath)
Age 35 years
Occ: Housewife
Katibase, Sindhnur
Raichur District 584 101
2. Chandrashekar
S/o Kanki Pampanna
Age 31 years
Occ: Business
Katibase, Sindhnur
Raichur District 584 101
2
3. The Commissioner
City Municipal Council
Sindhnur - 584 101
...Respondents
(By Shri Ameet Kumar Deshpande, Advocate for R1 and R2;
R3 served)
This writ petition is filed under Article 227 of the
Constitution of India praying to set aside the order dated
08.06.2018 passed by the learned II Additional Civil Judge and
JMFC, Sindhnur in O.S.No.90/2010 vide Annexure-G and
consequently allow IA.No.14 filed by the petitioner; and etc.
This writ petition coming on for orders this day, the court
made the following:
ORDER
Heard the learned counsel appearing for the petitioner.
2. A notice was issued on 7th August, 2018. This petition under Article 227 of the Constitution of India is filed by the original plaintiff. A suit was filed by the petitioner for permanent injunction. Earlier, an application for amendment of the plaint in I.A.No.12 was filed by the present petitioner which was allowed by the order dated 27th September, 2016.
3. I.A.No.14 was filed by the present petitioner for further amendment of the plaint alleging that after the earlier 3 amendment was allowed, the first and second respondents have encroached upon the suit road. Therefore, a paragraph is sought to be added for pleading the said subsequent event. An additional prayer is also sought to be added. By the impugned order, the learned trial Judge rejected the application for amendment on the ground that this is the second application for amendment and the facts pleaded by way of proposed amendment are already on record. It is further observed that if the proposed amendment is allowed, it will change the nature of the suit.
4. The learned counsel appearing for the petitioner submitted that in the proposed amendment, it was specifically stated that after the earlier amendment was allowed, further encroachment has been carried out by the first and second respondents. He submitted that in view of specific assertions, the amendment ought to have been allowed.
5. The learned counsel appearing for the first and second respondents submitted that paragraph No.6 of the order passed by the trial Court on an earlier application for 4 amendment (I.A.No.12) clearly shows that the same amendment was allowed and in fact, a prayer for mandatory injunction was also added. He would therefore submit that the trial Court was justified in rejecting the application for amendment.
6. I have considered the submissions.
7. Perusal of the text of the proposed amendment shows a specific assertion was made that after the earlier amendment to the plaint was allowed, a further encroachment was allegedly made by the first and second respondents on the suit road. It is alleged that a further construction has been carried out as described in the proposed amendment. Even a prayer was sought to be added specifically referring to the fact that further work was carried out by the first and second respondents after the earlier amendment was allowed.
8. The trial Court has rejected the application for amendment, firstly on the ground that the facts stated in the proposed amendment are on record. Secondly, the proposed amendment will not help to determine the real controversy 5 between the parties and thirdly, the proposed amendment may change the nature of the suit.
9. Whether after the earlier amendment was permitted, further encroachment was carried out or not is an issue which will have to be decided in the suit at the time of hearing. There was no warrant for recording a finding that the facts pleaded in the proposed amendment are already on record. In fact, to avoid the multiplicity of proceedings, the proposed amendment was absolutely necessary. Moreover, the proposed amendment will not change the nature of the suit. Hence, the impugned order cannot be sustained and the proposed amendment will have to be allowed.
10. Accordingly, I pass the following:
ORDER
(i) The impugned order dated 8th June, 2018 is hereby set aside and I.A.No.14 filed by the petitioner is hereby allowed;
(ii) The amendment shall be carried out by the petitioner to the plaint within fourteen days 6 from the date of receipt of certified copy of this order produced before the trial Court.
(iii) After the amendment is carried out, the trial Court will grant a reasonable time to the respondents to file additional written statement.
(iv) All contentions on merits are kept open.
(v) The petition is allowed on the above terms.
Sd/-
CHIEF JUSTICE VGR/VP