Karnataka High Court
Shanmukappa S B vs H Henjarappa on 4 January, 2018
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.55799 OF 2017 (GM-CPC)
BETWEEN:-
1. SHANMUKAPPA S.B
AGED ABOUT: 47 YEARS,
S/O BOPPANNA S.M
2. BOPPANNA S.M
AGE:20 YEARS,
S/O LATE MUDDANNA,
BOTH ARE RESIDENT OF
LODPURI MOHALLA,
NEAR BANNI MANTAPA,
SIRA TOWN, TUMKUR DISTRICT. ... PETITIONERS
(By Sri: PATEL D. KARE GOWDA, ADVOCATE)
AND:-
H HENJARAPPA
S/O LATE SANNALINGAPPA,
AGE: 69 YEARS,
RESIDENT OF LODPURI MOHALLA,
NEAR BANNIMANTAPA,
SIRA TOWN, TUMKURU DISTRICT. ... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
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THE RECORDS AND TO SET ASIDE THE ORDER PASSED ON I.A.
FILED UNDER ORDER 6 RULE 17 OF THE CPC IN
O.S.NO.130/2015 DTD:16.11.2017 BY THE LEARNED
ADDITIONAL CIVIL JUDGE AND JMFC, SIRA VIDE ANNEXURE-F
TO THE W.P. AND TO REJECT THE I.A. FILED U/O 6 RULE 17 OF
THE C.P.C IN O.S.NO.130/2015 VIDE ANNEXURE-D TO THE W.P.
AND TO GRANT AN INTERIM ORDER TO STAY THE OPERATION
OF THE ORDER PASSED ON I.A. FILED U/O 6 RULE 17 OF THE
CPC IN O.S.NO.130/2015 DTD:16.11.2017 BY THE LEARNED
ADDITIONAL CIVIL JUDGE AND JMFC, SIRA AND STAY OF ALL
FURTHER PROCEEDINGS IN O.S.NO.130/2015.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The defendant Nos.1 and 2 filed the present writ petition against the order dated 16.11.2017 passed by the Addl. Civil Judge & JMFC, Sira made in O.S.No.130 of 2015 allowing the application filed by the plaintiff under Order VI Rule 17 r/w Section 151 CPC..
2. The respondent, who is the plaintiff before the trial court filed a suit for the relief of declaration of title and permanent injunction in respect of the suit schedule property, contending that he is the lawful owner of the suit schedule property by virtue of the registered sale deed dated 16.08.1990 3 and is in possession and enjoyment of the same, the defendants have no manner of right, title or interest over the schedule property, filed a suit for relief as sought for.
3. The defendant No.1 filed the written statement and denied the plaint averments. He contended that the plaintiff has to establish that he purchased the suit schedule property from his vendor Sri. Gopala @ Gopalaiah. The plaintiff has induced the first defendant to purchase the suit property to the extent of 22½ft x 35 ft and accordingly defendant No.1 purchased the suit property and put up a construction in the area purchased by him and the remaining area appears to be not in the use and control of the plaintiff. Since the first defendant and his family members were not in terms and as he was always aloof and alone from his family members and was not having much contact with his family members, the plaintiff took advantage of the same and induced the first defendant to purchase the site, in which the first defendant constructed a house and residing in the same. Hence, he submits that the plaintiff is not entitled for any relief and prays for dismissal of the suit.
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4. When the matter was posted for plaintiff's evidence, at that stage, the plaintiff filed an application for amendment under Order VI Rule 17 CPC r/w Section 151 CPC for inserting paras 7(a) and 12(a) of the facts and prayer (b) and (c) for mandatory injunction directing the defendants to demolish the illegal construction constructed by the defendants during the pendency of the suit to an extent of about East-West 35 ft and North- South 16 ft of the plaint suit schedule property and for recovery of possession of the suit schedule property from the defendants and to delete in north schedule and remaining portion of 35 x 22½ ft., contending that the proposed amendment in the form of insertion and deletion in the plaint, sought in the application is very essential and the amendment sought for will not change the cause of action and insertion of the same in prayer column of the plaint gives more clarity to dissolve the dispute between the parties. He further contended that the amendment will not cause any injury or prejudice to either of the parties and will not change the nature of the suit property.
5. The said application was opposed by the first defendant and contended that the application filed for amendment is not 5 maintainable. The application for temporary injunction filed already has been rejected by the trial court and the appeal filed is pending. Therefore, the present application is not maintainable and the amendment would change the nature of the suit and cause of action and therefore sought for dismissal of the application.
6. The trial court after considering the application and the objections filed by defendant No.1, by the impugned order dated 16.11.2017, allowed the application. Hence, the present writ petition is filed.
7. I have heard the learned counsel for the petitioner.
8. Sri. Patel D. Kare Gowda, the learned counsel for the petitioners/defendants contended that the impugned order passed by the trial court allowing the application for amendment viz., insertion and deletion in the plaint and prayer column is erroneous and contrary to the material on record. The amendment sought will change the very nature of the suit and cause of action, as the suit originally was filed only for declaration and permanent injunction and now by way of 6 amendment has sought for insertion, deletion, demolition and recovery of possession which is against the original plaint. Therefore, the impugned order passed by the trial court allowing the application is erroneous and hence same may be quashed.
9. Having heard the learned counsel for the petitioner, it is not in dispute that originally the plaintiff filed a suit for declaration of title and permanent injunction. Now by way of amendment, he has sought for insertion and deletion in the prayer column and to direct the defendants to demolish the illegal construction put up by the defendants mainly on the ground that the defendants have constructed to the extent of about East-West-35ft and North-South16ft during the pendency of the suit. These are the subsequent events. Therefore, he has sought for amendment of subsequent events.
10. The trial court after considering the application and objections, recorded a finding that the provisions of Order VI Rule 17 CPC consists of two parts, first part is discretionary, since the word used 'may' enables the court to order amendment of pleading at any stage of the proceedings; second part is imperative, inasmuch as, word 'shall' enjoins the court to allow 7 all amendments which are necessary for the purposes of determining real questions or controversies between parties. Since the amendment sought by the plaintiff will not change the nature of the suit or cause of action, further more, it is the discretion of the court to allow the amendment if court comes to the conclusion that the said amendment will not change the nature of the suit and will not affect the cause of action. Moreover, the case is at the stage of evidence only. The defendants have every opportunity to file additional written statement or every chance to cross-examine the plaintiff. Therefore, the application requires to be allowed to avoid multiplicity of the proceedings.
11. The material on record clearly depicts that the amendment sought is only on the basis of subsequent developments that have taken place during the pendency of the suit and some construction having been put up by the defendants during the pendency of the suit. The amendment sought is imperative, appropriate and necessary for effective adjudication of the case. The application filed is a bonafide one. The proposed amendment constitutionally and fundamentally 8 would not change the nature of the case and the character of the suit. Therefore, the impugned order passed by the trial court allowing the application is just and proper. The defendants have not made out any ground to interfere in the impugned order for exercising powers under Article 227 of the Constitution of India. Hence, the writ petition is dismissed. However, it is open for the defendants to file additional written statement, if any.
With the above observations, the writ petition is dismissed.
Sd/-
JUDGE *mn/-