Karnataka High Court
Sri K Manohar Kamath vs The Town Municipality Karkala on 14 February, 2024
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NC: 2024:KHC:6296
WP No. 39920 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 39920 OF 2017 (GM-CPC)
BETWEEN:
SRI. K. MANOHAR KAMATH
S/O LATE LAKSHMINARAYANA KAMATH,
PROPRIETOR, RADHIKAR THEATRE,
PLOST BOX NO.18, KARKALA 574 104.
...PETITIONER
(BY SRI. LAKSHMI DEVI K., ADVOCATE FOR;
SRI. PRASANNA V R.,ADVOCATE)
AND:
1. THE TOWN MUNICIPALITY KARKALA
REP. BY ITS CHIEF OFFICER,
KARKALA TALUK,
UDUPI DISTRICT 574104.
Digitally signed
by PAVITHRA N
Location: high 2. THE ASSISTANT EXECUTIVE ENGINEER
court of MESCOM, KARKALA,
karnataka UDUPI DISTRICT 574 104.
3. THE STATE OF KARNATAKA
REP. BY DEPUTY COMMISSIONER,
UDUPI DISTRICT, MANIPAL 576 104.
...RESPONDENTS
(BY SRI.K. CHAUDRANATH ARIGA.,ADVOCATE FOR R1;
SRI.H.V. DEVARAJU., ADVOCATE FOR R2;
SMT. ANUKANKSHA KALKERI., HCGP FOR R3)
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NC: 2024:KHC:6296
WP No. 39920 of 2017
THIS WP FILED UNDER SECTION 227 OF
CONSTDITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD.9.8.2017 ON I.A.NO.10 IN O.S.NO.145/2012 PASSED BY
THE LEARNED II ADDL. CIVIL JUDGE AND JMFC, KARKALA,
(I/C), VIDE ANNEX-A AND PASS CONSEQUENTIAL ORDER
ALLOWING THE SAID APPLICATION ETC.
THIS PETITION, COMING ON FOR PRELIMENERY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiff in O.S.No.145/2012 on the file of the learned Civil Judge and JMFC at Karkala (hereinafter referred to as 'the trial Court' for brevity), is impugning the order dated 09.08.2017 rejecting I.A.No.10 filed by him under Order VI Rule 17 of CPC.
2. Heard Sri Prasanna V.R., learned counsel for the petitioner and Sri Chandranath Ariga, learned counsel for respondent No.1 and Sri H.V.Devaraju, learned counsel for respondent No.2 and Smt. Anukanksha Kalkeri, learned HCGP for respondent No.3. Perused the materials on record.
3. Learned counsel for the petitioner contended that the petitioner as plaintiff filed the suit O.S.No.145/2012 seeking permanent injunction restraining the defendants from installing new transformer in 'A' schedule property and also for -3- NC: 2024:KHC:6296 WP No. 39920 of 2017 mandatory injunction to remove the electricity poles which were already installed. During the pendency of the suit, the defendants dug the land and removed the lateral support for the compound wall of the plaintiff's property and as a result, the compound wall had fallen. Therefore, the application IA No.10 was filed seeking amendment of the plaint to bring on record that the compound wall of the talkies premises had fallen due to removal of lateral support of the compound wall of defendant Nos.1 and 2 and that the defendants are liable to restore the western side compound wall of the talkies premises. The plaintiff is also seeking to amend the plaint to seek mandatory injunction in the form of restoration of the western side compound wall of the talkies as stated in the application. The said application came to be dismissed by the trial Court without assigning any valid reasons. Hence, prays for allowing the petition.
4. Per contra learned counsel for respondent Nos.1 and 2 opposing the petition submitted that the suit was filed initially for perpetual injunction and for mandatory injunction only with regard to the electric poles. The Court Commissioner was appointed and he submitted his report on 02.01.2016. -4-
NC: 2024:KHC:6296 WP No. 39920 of 2017 About a year thereafter, the present application is filed seeking amendment of the plaint with regard to the fallen compound wall. There is inordinate delay in fling the application. Moreover, the nature of the suit will change if the proposed amendment is permitted. Therefore, the trial Court was right in dismissing the application. Accordingly, he prays for dismissal of the petition.
5. Learned Government Advocate for respondent No.3 submits that the trial Court rightly considered the application and rejected the same. There are no reasons to interfere with the same. Accordingly, she prays for dismissal of the petition.
6. Admittedly, the plaintiff filed the suit for permanent injunction restraining the defendants from installing new transformer in 'A' schedule property and for mandatory injunction to remove two electric poles which are already installed on the western side of 'A' schedule property and to bring 'A' schedule property to its original position. It is the contention of the plaintiff that during the pendency of the suit, the defendants have removed the lateral support to the compound wall and as a result, the said compound wall had -5- NC: 2024:KHC:6296 WP No. 39920 of 2017 fallen. Therefore, the plaintiff is entitled for restoration of the compound wall to its original position.
7. Admittedly a Court Commissioner was appointed and he has submitted his report, wherein the Commissioner has stated that he found digging of earth and lateral support of the compound wall being demolished in Sy.No.131/20 and 131/28. But he expressed his inability to state as to who has demolished the aforesaid compound wall. This report was submitted by the Court Commissioner on 02.01.2016. The application IA No.10 was filed during January 2017. If the Commissioner's report is taken into consideration, it is clear that there was collapse of compound wall as now trying to be contended by the plaintiff. The application IA No.10 was filed during January 2017 i.e., one year after filing of Commissioner's report. However, it is not in dispute that still the plaintiff has not lead any evidence in the matter. Under such circumstances, the contention of the petitioner that the compound wall had fallen due to the act of defendant Nos.1 and 2 and that the plaintiff is entitled for restoration of the compound wall to its original contention cannot be rejected. -6-
NC: 2024:KHC:6296 WP No. 39920 of 2017
8. It is to be noticed that the suit filed during 2012 and the Commissioner's report filed during 2016 refers to the compound wall which had fallen. Therefore, prima-facie the contention of the plaintiff that the compound wall had fallen during the pendency of the suit could be taken into consideration and the plaintiff may be permitted to carryout the amendment as the burden will be on the plaintiff to prove his contention that the compound wall had fallen during the pendency of the suit, that too, due to the act of the defendants. It is for the trial Court to consider as to whether the plaintiff is entitled for such mandatory injunction as now sought to be prayed. No prejudice would be caused to the defendants, if the proposed amendment is permitted.
9. I have gone through the impugned order passed by the trial Court. It has proceeded to observe that the compound wall had fallen long back and had even given a finding that it might not have fallen during the pendency of the suit. Such observation on the part of the trial Court was not called for when the suit is pending for consideration and the parties are yet to lead their evidence in support of their contentions. Therefore, I am of the opinion that a writ in the nature of -7- NC: 2024:KHC:6296 WP No. 39920 of 2017 certiorari is to be issued to quash the order passed by the trial Court. Accordingly, I proceed to pass the following;
ORDER Petition is allowed.
The impugned order dated 09.08.2017 passed in O.S.No.145/2012 by the learned II Additional Civil Judge and JMFC, Karkala, dismissing IA No.10, is set aside.
Consequently, I.A.No.10 filed by the plaintiff under Order VI Rule 17 r/w Section 151 of CPC is allowed. Plaintiff is permitted to carryout the amendment. Defendants are at liberty to file additional written statement on the amended plaint.
Sd/-
JUDGE PN List No.: 1 Sl No.: 8