Karnataka High Court
Sri. S. Gururaja Bhat vs Sri. K.S. Ganapathi on 13 June, 2025
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NC: 2025:KHC:20347
W.P. No.52333/2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.52333/2019 (GM-CPC)
BETWEEN:
1. SRI. S. GURURAJA BHAT
AGED ABOUT 55 YEARS
S/O LATE S.V. MADHAVA BHAT.
2. SMT. NETRAVATHI G. RAJ
AGED ABOUT 46 YEARS
Digitally signed W/O SRI. S. GURURAJA BHAT.
by RUPA V
Location: High PETITIONERS NO.1 AND 2 ARE
Court of R/AT D.NO.1114/2, NEW NO.CH 27/2
karnataka GEETHA ROAD, CHAMARAJANAGARAM
MYSURU-570004.
...PETITIONERS
(BY SRI. Y.V. PRAKASH, ADV., FOR
SRI. Y.K. NARAYANA SHARMA, ADV.,)
AND:
SRI. K.S. GANAPATHI
AGED ABOUT 56 YEARS
S/O SRI. SREENIVASA BHAT
R/AT 1114/1 (OUT HOUSE)
GEETHA ROAD, CHAMARAJAPURAM
MYSURU-570004.
...RESPONDENT
(BY SRI. K.N. MAHABALESHWARA RAO, ADV.,)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO PASS NECESSARY ORDERS
AND ISSUE APPROPRIATE WRIT OF CERTIORARI OR OTHER
APPROPRIATE WRIT OR ORDER AND STAY THE ORDER
DTD.7.11.2019 PASSED ON IA NO.2 IN R.A.NO.270/2016 BY THE
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W.P. No.52333/2019
HC-KAR
COURT OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU AS PER
ANNEXURE-H AND REJECT THE SAID I.A.NO.2 FILED BY THE
RESPONDENT BY ALLOWING THIS W.P. WITH COSTS THROUGHOUT
OR PASS ANY OTHER SUITABLE ORDERS UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed seeking following reliefs:
"Wherefore, it is respectfully prayed that this Hon'ble Court be pleased to pass necessary orders and issue appropriate Writ of Certiorari or other appropriate Writ or order and stay the order dated 07.11.2019 passed on I.A.No.2 in R.A.No.270/2016 by the Court of the VII Additional District Judge, Mysure as per Annexure-"H" and reject the said I.A.No.2 filed by the respondent by allowing this writ petition with costs throughout or pass any other suitable orders under the facts and circumstances of the case in the interest of justice."
2. Sri.Y.V.Prakash, learned counsel appearing for the petitioners submits that the respondent herein has filed a suit against the petitioners seeking relief of mandatory injunction to put down or demolish the building constructed in 'A' schedule property by way of mandatory injunction and to close two windows which have been put -3- NC: 2025:KHC:20347 W.P. No.52333/2019 HC-KAR up in the Western side of the schedule 'B' property. The said suit came to be dismissed and the respondent filed an appeal and in the said appeal he filed an IA seeking amendment of the plaint. The said application came to be allowed by the Appellate Court under the impugned order. It is further submitted that the nature of the amendment sought by the respondent is nothing but an attempt to overcome the admissions in the suit. The nature of amendment has nothing to do with the adjudication of the lis between the parties as the prayer is for mandatory injunction to demolish the wall put up by the petitioners and to remove two windows. In the cross-examination respondent-PW.1 has clearly admitted that suit 'A' and 'B' properties are exclusive properties of the petitioners and he has not put up any construction. Hence, allowing such application would cause great prejudice and it is an attempt to get the matter remanded to the trial Court and to overcome such admissions. It is also submitted that there is no reason whatsoever assigned in the application -4- NC: 2025:KHC:20347 W.P. No.52333/2019 HC-KAR with regard to the delay in filing the application. There is also no explanation whatsoever with regard to the aspect of due diligence in filing the application, the Appellate Court without considering any of the said aspects has proceeded to allow the application by recording the reason that the pleading will not make out a new case and allowing it will not amount to granting a decree in favour of the petitioner. He also adds that the trial Court has observed that the respondent has assigned the reasons that inspite of the complaint, the MCC has not taken any action against the petitioners and therefore, could not plead about the same in the original plaint. The said observation of the trial Court is factually incorrect as no such assertion is made in the application for amendment. Hence, he seeks to allow the petition by setting aside the impugned order.
3. Per contra, Sri.K.N.Mahabaleshwara Rao, learned counsel appearing for the respondent supports the impugned order of the trial Court and submits that mere -5- NC: 2025:KHC:20347 W.P. No.52333/2019 HC-KAR admissions in the suit cannot be a ground to reject an amendment when the party is seeking the said amendment for bonafide reasons. It is submitted that the amendment is nothing but an explanation or clarification for the existing pleading and there would not be any change in the nature of the relief sought in the plaint. He further adds that the amendment is required to be considered liberally when an application is filed with a bonafide intention. Hence, he seeks to dismiss the petition.
4. I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent and meticulously perused the material available on record.
5. The pleading and material available on record indicates that the respondent herein has filed O.S.No.127/2005 against the petitioners seeking relief of -6- NC: 2025:KHC:20347 W.P. No.52333/2019 HC-KAR mandatory injunction and permanent injunction. The prayer in the suit reads as under:
"1) By directing the defendants to put down or demolish the building constructed in the 'A' Suit Schedule property by way of Mandatory injunction and to close the two windows which has been put up in the western side of the 'B' Suit Scheduled property.
2) By Granting Permanent Injunction against the defendants restraining the defendants, agents, successors or any other persons claiming under them from blocking the drainage which is passed through the common passage in the 'A' Schedule Property and also from altering the drainage passed in the 'A' Schedule Property.
3) Court costs and such other reliefs deems fit to be granted in the circumstances of the case."
6. After a full fledged trial, the trial Court dismissed the suit vide judgment dated 05.10.2015. Being aggrieved, the respondent filed RA.No.270/2016 which is pending on the file of VII Additional District Judge, Mysore. In the said appeal, the respondent filed an application in IA.No.2 under Order 6 Rule 17 read with Section 151 of CPC seeking amendment of the plaint by incorporating certain factual aspects in the plaint. The said application was opposed by the petitioners contending that filing an -7- NC: 2025:KHC:20347 W.P. No.52333/2019 HC-KAR application would amount to an attempt to overcome the admissions in the suit and that such application filed with an ulterior motive cannot be allowed. The Appellate Court considering the submissions, averments in the application and objections proceed to allow the application. The nature of relief sought by the respondent in the suit is for mandatory injunction to demolish the common wall alleged to have been constructed by the petitioners and mandatory injunction to remove two windows in the suit 'B' property and further from blocking the drainage which passes through the common passage in 'A' schedule property. The trial Court in its judgment in O.S.No.127/2005 from paragraph No.16 onwards has extracted the admissions given by the respondent with regard to the dispute between the parties. The said admissions referred in the judgment clearly indicate that the respondent has admitted that the suit schedule properties 'A' and 'B' are exclusive properties of the petitioners and the respondent has no right over it. -8-
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7. The aforesaid admissions clearly indicate that the respondent has admitted clearly that common wall exists in the property of the petitioners. He also admitted that he has no right over the property. He has also admitted that two windows exist on the petitioners' property. When there is clear admission on the part of the respondent in the trial, the nature of amendment sought now by the respondent definitely amounts to an attempt to overcome the said admissions and further an attempt to seek remand, based on such an amendment. The learned counsel for the petitioners is right in his submission that absolutely no reasons whatsoever have been assigned in the affidavit accompanying the application for amendment. The application is filed in the Appellate Court seeking amendment of the plaint which is more than four years old, not even a single reason is stated with regard to the delay and due diligence on the part of the respondent in the application belatedly. The application as well as the affidavit seeking amendment is bald and without any -9- NC: 2025:KHC:20347 W.P. No.52333/2019 HC-KAR factual assertion with regard to the limitation and due diligence. There is no explanation as to why such a plea is not taken by the respondent when the plaint is filed. In the absence of any such material on record, allowing the application by the Appellate Court is contrary to settled principles of law and contrary to Order 6 Rule 17. It is not in dispute that the application for amendment is required to be allowed liberally, but if the application is filed to overcome the admissions already made, such applications are required to be rejected.
8. The aforesaid observations are made by this Court only with regard to the consideration of the application filed by the respondent. It is made clear that this Court has not expressed any opinion with regard to merits of the case. The Appellate Court shall consider the appeal on its merits without being influenced by the observation made supra. For the aforementioned reasons, I proceed to pass the following:
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NC: 2025:KHC:20347
W.P. No.52333/2019
HC-KAR
ORDER
i) Writ petition is allowed.
ii) Impugned order dated 07.11.2019 passed
on IA.No.2 in R.A.No.270/2016 passed by the VII Additional District Judge, Mysore is set aside. Consequently IA.No.2 filed in R.A.No.270/2016 by the respondent stands rejected.
Sd/-
(VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 39