Karnataka High Court
Sri. Kemparaja M vs The State Of Karnataka on 7 February, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.2557 OF 2022 (GM-CPC)
BETWEEN:
1. SRI. KEMPARAJA M.,
S/O LATE MUNIYAPPA,
AGED ABOUT 55 YEARS,
R/AT NO.41/15, 16TH CROSS,
TELECOM LAYOUT, VIRUPAKSHAPURA,
VIDYARANYAPURA,
BENGALURU - 560 097.
2. SRI. M. ASHWATHANRAYANA,
S/O LATE MUNIYAPPA,
AGED ABOUT 42 YEARS,
R/AT NO.514/514,
MUNESHWARA ARCHID,
KODIGEHALLI CIRCLE,
KODIGEHALLI,
SAHAKARANAGARA POST,
BENGALURU - 560 092.
...PETITIONERS
(BY SRI. T. SESHAGIRI RAO, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMETN OF REVENUE,
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
BENGALURU - 560 001.
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2. THE PRINCIPAL SECRETARY,
DEPARTMENT OF REVENUE,
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
BENGALURU - 560 001.
3. THE SPECIAL DEPUTY COMMISSIONER,
BENGALURU URBAN DISTRICT,
BENGALURU - 560 001.
4. THE TAHSILDAR,
BENGALURU NORTH TALUK,
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI. K. DILIP KUMAR, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DTD. 10.01.2022 PASSED ON I.A.
NO.17 IN O.S.NO.788/2008 PENDING ON THE FILE OF
PRL. SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, VIDE
ANNX-E TO THE WRIT PETITION AND FURTHER PASS AN
APPROPRIATE ORDER TO ALLOW THE SAID APPLICATION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners being aggrieved by the order dated 10.01.2022 passed on I.A.No.17 in O.S.No.788/2008 by the Principal Senior Civil Judge and JMFC, Devanahalli, Bengaluru Rural District, have filed this writ petition.
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2. Brief facts leading rise to filing of this petition are as under:
That the father of the petitioners filed a suit in O.S.No.788/2008 seeking for the relief of declaration and permanent injunction. In the said suit, respondent No.4 filed a written statement denying the averments made in the plaint. The Trial Court framed the issues. Thereafter posted the case for petitioners evidence. The petitioners lead the evidence and when the case is posted for arguments, the petitioners filed an application for amendment of plaint. In support of the application, petitioners filed an affidavit stating that the suit schedule property was purchased by the father of the petitioners under registered sale deed dated 23.11.1995 from Kempanna S/o late Shamanna. The said property was granted by the Tahasildar on 22.04.1962 to original grantee i.e., Kempanna S/o late Shamanna. Earlier to the said grant, Kempanna was unauthorizedly cultivating the 4 schedule property. Taking note of the unauthorized cultivation by Kempanna, the Tahsildar granted the land in favour of original grantee, Kempanna. The Deputy Commissioner, while disposing of the RRT dispute has reached an irrelevant conclusion that the Tahsildar has not granted the suit schedule property to the original grantee i.e, Kempanna S/o late Shamanna. The father of the petitioners being aggrieved by the order, preferred a writ petition in W.P.No.10833/2006. This Court vide order dated 21.11.2007, dismissed the writ petition reserving liberty in favour of the petitioners therein, to file a Civil Suit. The petitioners filed instant suit. The advocate on record while going through the case papers, has noticed a mistake in the plaint and advised to file amendment of plaint. Consequently, petitioners filed an application seeking for amendment of plaint. None of the respondents filed objection to the said application. The Trial Court, after hearing, 5 rejected the application vide order dated 10.01.2022.
The petitioners being aggrieved by the same, have filed this writ petition.
3. Heard the learned counsel for petitioners and also learned HCGP for respondents.
4. Learned counsel for the petitioners submits that the Trial Court has committed an error in rejecting the application for amendment of plaint. He further submits that the proposed amendment sought by the petitioners neither changes the nature of the case nor cause of action. He further submits that in order to avoid multiplicity of litigations, the Trial Court ought to have allowed the application, on the contrary, rejected the said application. Hence, on these grounds, he prays to allow the writ petition.
5. Learned HCGP for respondents supports the impugned order.
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6. Perused the records and considered the submissions made by learned counsel for the petitioners.
7. It is not in dispute that the father of the petitioners filed a suit for declaration and injunction on 03.10.2008. The respondent No.4 filed a written statement on 19.01.2011. The Trial Court framed the issues on 13.02.2012. Thereafter, petitioners lead the evidence and closed their side. When the case is posted for arguments, petitioners filed an application seeking for amendment of plaint. In order to consider the case of the petitioners, it is necessary to consider Order VI Rule 17, which read as under:
"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining 7 the real questions in controversy between the parties:
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."
As per the proviso to Order VI Rule 17 of C.P.C., no Court shall allow the application for amendment of pleading after the commencement of trial, unless the Courts come to conclusion that in spite of due diligence, the parties could not raise the issue before the commencement of trial.
8. From the perusal of the application filed by the petitioners, the petitioners have not established that in spite of due diligence, petitioners could not raise the matter before the commencement of trial. 8 Admittedly, the petitioners have filed the application when the case is posted for arguments.
9. The Hon'ble Apex Court in the case of PANDIT MALHARI MAHALE VS. MONIKA PANDIT MAHALE & ORS. [(2020) 11 SCC 549], held that the parties have to satisfy that in spite of due diligence the party could not have raised the matter before the commencement of trial.
10. In the present case, as observed above, the petitioners have failed to establish that in spite of due diligence the petitioners could not have raised the matter before the commencement of trial. The Trial Court, after considering the materials on record, is justified in rejecting the said application on the ground that it was filed after lapse of more than 14 years from the date of filing of the suit and further it is observed that the application is filed only with an intention to drag the proceedings. The suit is of the 9 year 2008 and when the case was posted for arguments, the petitioners have filed the application. The Trial Court, after considering the materials on record, was justified in rejecting the application I.A.No.17. Hence, I do not find any grounds to interfere with the impugned order by exercising supervisory powers under Article 227 of the Constitution of India. Accordingly, I proceed to pass the following:
ORDER i. The writ petition is dismissed. ii. Liberty is reserved to the petitioners to challenge the same as per Section 105 of C.P.C.
SD/-
JUDGE GRD