Karnataka High Court
Sri. M. Sathisha vs Sri. Lalith Kumar on 5 February, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5th DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.52232/2017 (GM-CPC)
BETWEEN:
1. SRI M. SATHISHA
S/O. MUNISWAMAPPA
AGED 37 YEARS.
2. SRI M. HARISH
S/O. MUNISWAMAPPA
AGED 37 YEARS
BOTH ARE RESIDING AT
KOTIGANAHALLI
KOLAR TALUK & DISTRICT.
... PETITIONERS
(BY SRI B.S.GAUTHAM, ADV.,)
AND:
SRI LALITH KUMAR
S/O. S. MAGANLAL
AGED 32 YEARS
RESIDING AT NO.544
BAZAR ROAD
BANGARPET
KOLAR DISTRICT - 563 128.
... RESPONDENT
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 3.11.2017 ON I.A.VI IN
O.S.320/2011 ON THE FILE OF PRL.CIVIL JUDGE, JMFC,
AT BANGARPET AT ANNEX-E AND SAID APPLICATION FOR
AMENDMENT OF PLAINT BE REJECTED AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The defendants filed the present writ petition against the order dated 03.11.2017 on I.A.No.6 made in O.S.No.320/2011 allowing the application filed by the plaintiff under Order 6 Rule 17 r/w Section 151 of Code of Civil Procedure for amendment of plaint with cost of Rs.1,000/-.
2. The respondent, who is the plaintiff before the trial Court filed O.S.No.320/2011 for permanent injunction against the defendants in respect of vacant site No.27 measuring East-West 30 feet North-South 40 feet morefully described in the schedule to the plaint contending that he is the owner in possession of the 3 suit schedule property. The defendants are utter strangers to the suit schedule property and they have no right title possession over the suit property. Hence, filed suit for the relief sought for.
3. The defendants filed written statement and denied the plaint averments and contended that the suit filed by the plaintiff for injunction seeking declaration is not at all maintainable. They further contended that the defendant is in possession and enjoyment of the written statement schedule property i.e., site No.38 measuring 34 + 29 X 40 morefufeet described in the written 2 statement schedule property and sought for dismissal of the suit.
4. When the matter was posted for evidence, at that stage, the plaintiff filed application under Order 6 Rule 17 r/w Section 151 of Code of Civil Procedure to insert the prayer column as 4, for declaration of plaintiff title of the suit schedule property and to insert in prayer 4 column as 5, for mandatory injunction for demolishing the shed illegally constructed by defendants in the item No.2 of the suit schedule property of the plaintiff and to insert in schedule portion as "item No.2 illegally constructed the shed an extent of east to west 10 feet and north to south 10 feet with boundaries mentioned therein and contended that the suit was filed for permanent injunction in respect of vacant site No.27. During the pendency of the proceedings, the defendants have constructed illegal shed in the suit schedule property by taking advantage of the plaintiff's absence. If the application is allowed no prejudice would be caused to the defendants and if the application is not allowed, it will lead to multiplicity of proceedings. Therefore, sought to allow the application.
5. Said application was opposed by the defendants by filing written statement and contended that the allegations made in the application are false 5 and baseless. The plaintiff never disclosed the exact date, month and year of the construction of shed by the defendants as alleged in para 3 of the affidavit and sought for dismissal of the application.
6. The trial Court considering the application and objections, by the impugned order dated 03.11.2017, allowed I.A.No.6 filed by the plaintiff for amendment with cost. Hence, the present writ petition is filed.
7. I have heard the learned counsel for the petitioners.
8. Sri B.S. Gautham, learned counsel for the petitioners vehemently contended that the impugned order passed by the trial Court allowing the application for amendment of plaint after a belated stage of 4 years from the date of filing of the suit is erroneous and contrary to the material on record. He would further 6 contend that the proposed amendment is to incorporate the prayer for declaration of title and would change the nature or cause of action of the suit. He would further contend that the amendment sought is bereft of any material particulars. In the absence of any material particular, the trial Court ought not to have allowed the application filed at a belated stage. He would further contend that in the plaint, it is specifically stated by the plaintiff that he is the owner in possession of the suit schedule property. But the very suit filed by the plaintiff is not maintainable. Therefore, he sought to quash the impugned order passed by the trial Court by allowing the present writ petition.
9. In support of his contention, learned counsel for the petitioners sought to rely upon the unreported judgment of the Hon'ble Supreme Court in the case of Sampath Kumar vs. Ayyakannu & Another made in Appeal (civil) No.5839/2002 dated 13.09.2002 that, 7 interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
10. Having heard the learned counsel for the petitioners, it is not in dispute that the suit filed by the plaintiff for permanent injunction in respect of suit schedule vacant site No.27 measuring East-West 30 feet, North-South 40 feet described in the schedule to the plaint contending that he is the owner in possession of the suit schedule property and the defendants are utter strangers and they have no right over the suit schedule property. Same is disputed by the defendants by filing written statement and denied the plaint averments and specifically contended that the defendants are in possession and enjoyment of the 8 written statement schedule property, morefully described in the written statement schedule. It is also not in dispute that the trial has not yet commenced. When the matter was posted for evidence, at that stage, the application came to be filed for amendment to insert prayer columns and to insert schedule portion item No.2 measuring East-West 10 feet and North-South 10 feet contending that during the pendency of the proceedings, the defendants have constructed illegal shed in the suit schedule property by taking advantage of the plaintiff's absence. Said application was opposed by the defendants by filing written statement.
11. The trial Court considering the application and objections, by the impugned order has recorded a finding that it is well settled law that the amendment of pleading is permissible at final stage of the proceedings, if it does not affect the complexion of original proceedings. It is well settled law to avoid the 9 multiplicity of proceedings the amendment of pleadings can be allowed. The amendment sought by the plaintiff inserting above proposed amendment is only to explain the delay caused in filing suit and action taken by the plaintiff to mitigate the losses. If it is allowed it will not prejudice to the case of the defendants. The amendment is necessary to decide controversy between parties and issues involved in the suit and to do complete justice between the parties. The trial Court further recorded a finding that now the matter is not yet posted for evidence if any on the side of the plaintiff. The defendants have got every right to put forth their defence during course of cross-examination. Therefore, the application deserves to be allowed. Accordingly, application came to be allowed.
12. It is the specific case of the plaintiff that though suit was filed for permanent injunction to a specific suit property and during the pendency of the 10 suit in the absence of plaintiff, the defendants have illegally trespassed into the suit schedule property and constructed shed to an extent East-West 10 feet and North-South 10 feet morefully described in the application.
13. Though the learned counsel for the petitioners/defendants contended that in the written statement he has taken specific contention that the defendants are in possession of the suit schedule property, the very suit for injunction is not maintainable. Fact remains that in the entire written statement except denying the plaint averments, the defendants have not stated that they are in possession of the suit schedule property but specifically stated that they are in possession and enjoyment of the written statement schedule property i.e., site No.38. That is not the subject matter of the present suit. Rights claimed 11 by the defendant in the written statement schedule and plaint schedule are entirely different.
14. It is well settled that a suit for injunction can be converted into declaration of title at any stage of the proceedings on same set of facts and it will not prejudice the case of the defendants or alter the nature of the suit. Therefore, the contention of the learned counsel for the petitioners that the defendants are in possession of the suit schedule property cannot be accepted.
15. The judgment relied upon by the learned counsel for the petitioners in the case of Sampath Kumar (supra), in that case, the suit was filed for permanent prohibitory injunction alleging that the plaintiff possession over the suit property which is an agricultural land. The defendant in his written statement denied the plaint averments and pleaded that on the date of the institution of the suit he was in 12 possession of the suit property and therefore the suit for injunction was liable to be dismissed and suit was instituted in the year 1988. Under these circumstances, the Hon'ble Supreme Court held that the interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
16. Admittedly, in the present case, till today the averments made in the plaint that the plaintiff is in possession of the suit schedule property and the defendants have trespassed into the suit schedule property during the pendency of the suit and constructed shed measuring East-West 10 feet and North-South 10 feet morefully described in the proposed 13 amendment schedule-II. Therefore, the judgment relied upon has no application to the present case.
17. The Hon'ble Supreme Court considering the provisions of Order 6 Rule 17 and Order 7 Rule 14(3) of Code of Civil Procedure in the case of Chakreshwari Construction Private Limited vs. Manohar Lal reported in (2017) 5 SCC 212, at para 13 has held as under:
"13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers v. Narayanaswamy & Sons ((2009) 10 SCC 84), this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p.102) "63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
1) whether the amendment sought is
imperative for proper and effective
adjudication of the case;
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2) whether the application for
amendment is bonafide or malafide;
3) the amendment should not cause
such prejudice to the other side which
cannot be compensation adequately in
terms of money;
4) refusing amendment would in fact
lead to injustice or lead to multiple litigation;
5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
18. It is well settled that proposed amendment is imperative for proper and effective adjudication of the case and application is bonafide or malafide. If the amendment is not allowed, it would lead to prejudice to the case of the plaintiff and it will lead to multiplicity of proceedings. The proposed amendment constitutionally 15 or fundamentally will not change the nature and character of the suit. Amendment is necessary to resolve the dispute between the parties and it will in no way prejudice to the case of the defendants.
19. Therefore, the impugned order passed by the trial Court is just and proper. The petitioners have not made out any good ground to interfere with the order passed by the trial Court in exercise of the power under Article 227 of the Constitution of India.
Accordingly, writ petition is dismissed.
Sd/-
JUDGE ca