Sri M Sampangappa S/O Muniswamappa vs Sri Marappa S/O Thammanna on 9 January, 2009

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Karnataka High Court

Sri M Sampangappa S/O Muniswamappa vs Sri Marappa S/O Thammanna on 9 January, 2009

Bench: B.V.Nagarathna

W. £~'.NO. 12200.2(}O6 (GM"Ck'C.I}

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IN THE HIGH COURI' OP' K.ARNA'l'AKA AT BANGALORE

DATED THIS THE 091?! DAY :3}? JANUARY, 
BEFORE L 'T A

'l'Hi:'3 HUN'i:3l,,J:; MRS.JUS'l'iCi:} B.V.NA(j.*§5~'§§'£?Hfi:§$«.A

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SR} M SAMPANGAPPA "r.1u:u1s'v:A§e";.'§1»P}~;

SR1 B K KRISHNAPPA  " 
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ALLARE RIATHYRASAHDRA VILLAGE

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SR1 MARAPPA s/0 THAMMAN NA

 MAJOR, R/AT BYRASANGRA VILLAGE
A H.A. SANITARY BOARD

DORAVANINAGAR
BANGALORE - 16
DECD BY LRS

SM' 1' AKKAAI YAMMA
W] O. LATE}; MARAPPA



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1)/0. LATE MARAPPA
5 Ski NANJUNADA
s;o.1,A'i'1:: MARAPPA _ 
ALL ARE R/AT BYRASANDRAK. ' _  " '
c.v. RAMAN NAGAR, P.041..._VBAN(3ALo'RB:;,_  

6 SR! ANNAYAPPA
Sf 0. '1'HAMMAi\h'NA}

MAJOR  p   
R/AT BYRASANDRAJWLMGE   
FLA SANITARY BQARD ' 
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BANGA_LOI§";EV-      

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'1'm.+;_g;oNs's':';'u*m)1~:'=us? mum PRAYING TO QUASH 'me;
0I§:;>1«3I~2*.PAssEi) m ().S.NO.3688 OF 1989 ET. 6.'?.9006

  Ui~§if5E:§-%.A THE ORiGiNAL OF ANX-E AND ALLOW THE
 , F;BPLiCAj1'!.QN_UNDER oxemme 5 RULE 1? 0;»  FILED BY
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  Petition coming on for PRELIMINARY
Hf§;4.RI33IG-v":3' GROLFP cm this day, the court delivered th

 folhwingw -

ORDER

The petitioners have filed this writ petition chaiécnging tbs order dated f).7.'AJU-6 passed in {).S.No.3688/1989 by the XV Addiijity (liivii 85 S€S$i()I).$ Judge at Bangalore. The peﬁtioncrs are the p£aintiﬁ"'s who have ﬁled $4.

V. _ in thc§V'fbii:;'wing harms:

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(.).S.No.3€>88/1989 seeking permanent injunction against the respondents] defendants in respect of property, the schaduic of which is féiiiaﬁifﬁ " 'V . the piaint 'vortziagnd '1'h1'pp»g vsffaaied in Gramathana of mﬂage, 'Bangalore south Taluk, 3?' x932' respeciively bomfzdgd «fin east by property belonging to 'i;a*§?a1"by Mamppa and Armayappa, No?-'(h sauth by "xiyf Balage

2. Duxiixg V. éf said suit and aﬁer bf as Wei! a$ the (ﬁg-f€I}.(iV<#§...':lt.i3'; an application under Order 6 Ruiz: _1_7 of {LPG seeking amendment of _ E1...' AUDI A8 PARAGRAPH -MA) IN 'rue; T. FL._A;iNV'I',_A.'&'y FOLLOWS:

%. 4§;a}".' Piainﬁﬁs respectfully submit that the ' V V H.A'.':'-ﬁsziitary Board has assigned khatha I'-i'<'>.'Sﬁ]2 in respect Of the suit schedulc property. £1. IN 'I'HtSJ SCHEDULE TO THE PLAINT:

(a) Aﬁcr the Words 'Bangalore South Taiuk' occurring in the 2"" and 3"' line, add as "khatha No.86/'2 and khatha No.90/A respectively.

(b) after the word 'measuring' instead of words 64' x 5'?' substitute the Words 60' X 80'.

g/I. W. $5.940. 'l22GC1.2£1O6 ({:'a§V1---iJ}?C} ...§_ ((3) after the words 'bounded on the'. the Words "khatha No.86f2, measuring 6(}f_x- 8&3'. and bounded on the: V' -1- East by : I-'iuperty of <;;hi1;mbac.t1a1§rpa.@i¥b§i:_ Nammma 85 Sara3swathzamma;,. West by : Property of 3 North by : Pmperty of Now Krishnappa.&;*~Ma1'appav.& "

South by ; Pxvpexﬂy of tlﬁiiunivenkatappa New Byanna.

((1) Aﬁ;ci"'gthc khatha No.90/A, measuﬁng.-40f"xi'32?13o1;qd:g1 on the: V _ wgstt I-of Marappa as Annayappa N6-:jti1 by' V it ' by V No.86] 2 (ﬂoralagna Thippc) ' to the plainﬁﬂl"

' of the said application it was stated that ségtce thé_ No.86[2 was earlier not assigned and the sam£;.V§§?as assigned subsequent to the ﬁling of the suit by 3311:'. Beard and the same measures 60 x 80 feet 'instead of 64 x 57 fast and in respect of Khata No.90/A W. Incasuring 40 x 30 fwt) boundarit:s'Wcre mat mentioned thc common boundarims are bifumatcd giving scpmate boumiaxics. the amendment was neomsiahed and therefore. the application for amendment be allowed. M/I ' , 1'e3;;£gndex3,t.

W. I.-'.I'~£C). 'i22OC}.20GES (i:'fV1~*CPC} .. 5, ..

4». The defendants ﬂied objections to the said appiieation contending that in the guise of amendment there is"

in the meaeurement of the property as weii_--*éV:a«e' ~ boundaries have been intxnduced neanf K "

case is sought to he made out after iapée 6f_'si:_ifeeiL::'§reé:z*s' and that the same is only with 3;: infenﬁcn > holes found in the evidence of K'T.:E1€I'ff§fOI'C, the application be _ V _

5. The ma} court after sides rejected the appiication of..tt'.e It is the said under which petition.

£3. ihhatfe learned counsei for the petitioner Seamed counsel for the 1; cprunsel for the peﬁtiener submits that was ﬁled in the year 1989, the amendment "._.'a;3piieaiéie;31vwas ﬁled in the year i»3(}()€:: and the same was A ffgieeesgsitatm on account of i«i.A.S-anitazy Board assigning ' khatha numbers to the suit scheduie pmperty and u it was necessary to amend para 4(8) of the piaint $5,, W..%'.§'*30.122GO.2C3U5 ((;i£"I-CBC)

- 7 ..

9. 011 a perusal of the piajnt, it E seen that the pkiiﬁﬁﬁs on the basis of their title and possession. hm"! Va.' Judgment and Decree of permanent V' defendants in respect of the piaint and extracted abeve. 'l'ij1ereaft e: ~. the issues as under:

:1. Whether' p:a'i,§i1jj'%V"prove t are in Eawfu} possgésion cg'? tfa.e_'p!az'nt schedule

2.

bygwdgfegggﬂrggg =: = _ prune that they 'Hf -.Qfvp-foperty situated at vilfaw which are dgzlitrzedebyeifze ' A _=z; of the pminuﬁfor mere V _r'f_¢jun<:i£nn' eeeriaaiéztaﬁ-mble? car order?"

_?1*i;r.§_ for ma' 1 and pw. 1 was examsined and ﬁe' get to P'? marked in evidence and had closed his thereaﬂer on the defendant side LEW. 1 was A and £1}x.i.)1 to D17 were markai in evidence. It is ' the DW. 1 being crossvexamined and at that stage the u .'V:epplication was ﬁled seeking the above extracted amendments. if the amendment was in the nature of oniy intxoducing a khatha number to the very same plaint ﬁyi ..

Sn'. A-?.:'~Jc>. 122580 .2CiO6 {tZ:'§~*1~--(;'.£'ilJ) _ 8 _ schedule prsoperty, the nature of the amendment woulﬁhavc been mstricted to that extent. However, the pLa:int-;j3f iiatmduction emf several details in the plaint ~ not only aitsrs the measurement; of __thc K V' property but also the b»oundaries.v"-;4i3;x;.'aT injunction or for declaration. c;-éij" it"i*z3.. the ' piaintiﬁls to be specific and of the schedule mentioned td €31" the above reiiefs are As¢ought'Aa11:£I_"--e;\vL.e :4V:#T of there being a neoesﬁity foif ought ta be made at the of over a decade and after recording of the cvidenc:;é:.;§ﬁd of argumezmzs. Apart from that Vany alter the basis of the relief me amount to new mum of action in a suit. The same would aiso in to the defendants and that cannot be the intcrg1!io§_of the amendment. in the sahcdule to V' »;;>&!a;in t, the praperty is described as "(.)oro1agma' 'Pippa ' gﬁadakanc" situated in Eziyrasandra Vilhgc measuring 'M64' x 3?' and 40' x 32' and common bounciaries to: these properties have been given. It is a speciﬁc cxjntention. of the defendant in his written statement that the said properties W W.P..a'\io.12200.2006 {Gi"4**{.IL-'C3 .. 1:3 ., Hon'ble Supreme Court held 'that deiay in seeking amendment can be compensated by cost and ' be impmper to refuse the amendment. ffhe H J " u u are in the context of perm3'ssibi£ity7.9f present and in such a mse aniengmeﬁiv. pot to' on 2 L' account of delay which is not . T_ x T?

14. in 2008 Am Railway pa: (9; by Inks) the that amendment of pieasciixaﬁs at appellate stage, pmsud' ed. it does network other party and the same is necegsaxy fei' of question in controversy.

IGOR 2249 Radar Fcrruo as another X ' this court has held that an amendment sought eh pexiod of eleven years for amendment of the of the appeal could granted, considering /. " tf1e~--f§i:ts and circumstances of the said case. ' There can be no oontmzy opinion to the prepositnlons u in the two Judwents referred to supra. However. in the instant case sinee I have held that the prevﬁed &.

W. P.No. 12200'.2f)€}6 (GM-UPC} #13- amendment would change the very nature of the cause of 'IV action, in the sense that the seheduk: to the plaint '. is totalty diﬁexent ﬁoorn what was mentioned ' piaint and the nature of the suit being iﬂiuncﬁon may amendment to the ﬁexeiti away the defence of the defendante to the permitted particularly after the ef and at beiated stage. _ V ' 5d/._.§__ ;%m(>Iudqe xvw "

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