Karnataka High Court
Shri R Hemachandra vs Shri C Y Shivegowda on 26 October, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
-1-
NC: 2023:KHC:38070
WP No. 1361 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO.1361 OF 2021 (GM-CPC)
BETWEEN:
1. SHRI R HEMACHANDRA
S/O LATE RAMA BOVI
AGED ABOUT 48 YEARS
2. SHRI R MAHESH
S/O LATE RAMA BOVI
AGED ABOUT 32 YEARS
3. SHRI GIRIYA BOVI @ R GIRISH
S/O LATE RAMA BOVI
AGED ABOUT 36 YEARS,
ALL ARE R/AT LINGAMBUDHI PALYA
SRIRAMPURA POST, KASABA HOBLI
MYSURU TALUK
... PETITIONERS
(BY SRI.SANATH KUMARA K M., ADVOCATE)
Digitally signed
by A K AND:
CHANDRIKA
Location: High
Court Of 1. SHRI C Y SHIVEGOWDA
Karnataka S/O SHRI VYKUNTEGOWDA
AGED ABOUT 60 YEARS
2. SHRI C Y CHALUVEGOWDA
S/O SHRI VYKUNTEGOWDA
AGED ABOUT 58 YEARS
BOTH ARE R/AT NO.383/A
M BLOCK KUVEMPU NAGARA
MYSURU - 270 001
...RESPONDENTS
(BY SRI.GURURAJ ., ADVOCATE FOR R-1 & R-2)
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NC: 2023:KHC:38070
WP No. 1361 of 2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ADIDE
THE ORDER DTD. 22.12.2020 PASSED ON I.A.NO.14 FILED IN
O.S.NO.431/2009 PENDING ON THE FILE OF THE I
ADDITIONAL II CIVIL JUDGE AND J.M.F.C AT MYSURU AS PER
ANNX-E. ETC
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/plaintiffs in O.S.No.431/2009 on the file of I Additional civil Judge and JMFC, Mysuru is before this Court praying to set aside the order dated 22.12.2020 passed on I.A.No.14 rejecting the application filed under Order VI Rule 17 of CPC to amend the plaint to add additional facts as well as additional prayer for declaration.
2. Heard learned counsel Sri.Sanath Kumara for petitioners and Sri.Gururaj, learned counsel for the respondents. Perused the writ petition papers.
3. Learned counsel for the petitioners would submit that suit of the petitioners/plaintiffs initially was one for a judgment and decree for permanent injunction against the defendants, restraining them from interfering with the -3- NC: 2023:KHC:38070 WP No. 1361 of 2021 peaceful possession and enjoyment of plaintiffs' suit schedule property. When the suit was at the stage of cross-examination of D.W.1, I.A.No.14/2019 was filed under Order VI Rule 17 of CPC to bring on record the subsequent events and to add additional prayer for declaration based on the subsequent events. Learned counsel for the petitioners would submit that subsequent to filing of the suit and during the pendency of the suit, the respondents/defendants encroached upon the land of the petitioners/plaintiffs and constructed compound wall. Therefore, it had become necessary for the petitioners/ plaintiffs to file amendment application to include additional averments and additional prayer for declaration and mandatory injunction. Learned counsel for the petitioners would submit that normally amendments shall be allowed liberally to avoid multiplicity of proceedings. Moreover, he submits that the amendment sought would not change the nature and complexion of the suit nor cause of action. Learned counsel would further submit that the trial Court committed an error in rejecting the -4- NC: 2023:KHC:38070 WP No. 1361 of 2021 amendment application only on the ground that the amendment is sought subsequent to commencement of trial and no explanation is offered with regard to due diligence. Learned counsel would submit that since the amendment sought is based on subsequent events, the trial Court ought to have allowed application for amendment. Thus, he prays for allowing the writ petition.
4. Per contra, learned counsel Sri.Gururaj appearing for the respondents/defendants would support the order passed by the trial Court and would submit that the amendment application filed by the petitioners/plaintiffs at the stage of cross-examination of D.W.1 would not be maintainable. Moreover, he submits that the petitioners/ plaintiffs have failed to explain due diligence as to why they could not seek amendment earlier. Further, learned counsel would point out that the affidavit accompanying application for amendment is bald and it would not state as to when the respondents/defendants encroached the petitioners' land and constructed compound wall. In the -5- NC: 2023:KHC:38070 WP No. 1361 of 2021 absence of specific averment with regard to construction of compound wall, the trial Court is justified in rejecting the application. Thus, he prays for dismissal of the writ petition.
5. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the petitioner has not made out any ground to interfere with the impugned order, moreover, the impugned order is neither perverse nor suffers from any material irregularity so as to warrant interference under Article 227 of the Constitution of India.
6. Under Order VI Rule 17 of CPC, normally the amendments are allowed liberally to avoid multiplicity of proceedings and to minimize the litigation. If the amendment sought is post-trial amendment, proviso to Order VI Rule 17 of CPC requires explanation with regard to due diligence by a party who seeks amendment. Unless the Court is satisfied with the explanation offered with regard to due diligence, the Court would not get -6- NC: 2023:KHC:38070 WP No. 1361 of 2021 jurisdiction to allow such an application for amendment. The Hon'ble Apex Court in a case reported in (2009) 2 SCC 409 (VIDYABAI AND OTHERS VS. PADMALATHA AND ANOTHER) has held that unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial, the Court would not get jurisdiction to allow such application. Relevant Paragraphs 10 and 19 of the above decision reads as follows:
"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:
"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
It is couched in a mandatory form. The court's jurisdiction to allow such an application -7- NC: 2023:KHC:38070 WP No. 1361 of 2021 is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.
19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
7. The contention of the learned counsel for the petitioners is that the amendment sought is based on the subsequent event i.e., construction of compound wall during the pendency of the suit. A perusal of the affidavit accompanying the application makes it clear that the -8- NC: 2023:KHC:38070 WP No. 1361 of 2021 affidavit is bald and vague and no particulars with regard to encroachment and construction of compound wall are furnished. The period when is the encroachment and date of construction of compound wall would be relevant factors. The affidavit would not indicate any date as to the construction of compound wall and it would not indicate the period when the respondents constructed compound wall by encroaching petitioners' land.
8. In the absence of such particulars, no amendment could be allowed. Thus, I do not find any merit in the writ petition. Accordingly, the writ petition stands rejected.
Sd/-
JUDGE MPK CT:RSS List No.: 1 Sl No.: 61