IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH , 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.8812/2019(GM-CPC) BETWEEN:
SMT. ATIYA NAZ AGED ABOUT 61 YEARS W/O ABDUL GAFFAR KHAN R/AT NO.66(2), 1ST FLOOR LAKSHMI NILAYA, VINAYAKA ENGLISH SCHOOL KHB COLONY, VIDYANAGAR KUNIGAL-570 132.
TUMKUR DISTRICT.
PRESENTLY R/AT NO.400/72, 7TH CROSS 1ST BLOCK, JAYANAGARA BENGALURU-560 011.
... PETITIONER (BY SRI K. K. VASANTH, ADVOCATE) AND:
1. SMT. SHAFIA NAZ, AGED ABOUT 68 YEARS D/O LATE G. M. DELVI R/AT NO.400/72/3 GROUND FLOOR, 7TH CROSS 1ST BLOCK, JAYANAGARA BENGALURU-560 011.
2. SMT. RABIA NAZ AGED ABOUT 66 YEARS W/O MIRZA MOHAMMED JAMEEL R/AT NO.400/72/3 GROUND FLOOR, 7TH CROSS 1ST BLOCK, JAYANAGARA BENGALURU-560 011 3. SRI MIRZA MOHAMMED JAMEEL AGED ABOUT 68 YEARS, HUSBAND OF RABIA NAZ GROUND FLOOR, 7TH CROSS 1ST BLOCK, JAYANAGARA, BENGALURU-560 011.
4. THE COMMISSIONER, BRUHAT BENGALURU MAHANAGARA PALIKE N.R. SQUARE, BENGALURU-560 002.
... RESPONDENTS (BY MISS RAKSHITHA D. J., ADVOCATE FOR R1 TO R3; SRI K.N. PUTTEGOWDA, ADVOCATE FOR R4) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDERS DATED 23.01.2019 PASSED ON IA NO.23 IN OS NO.26195/2013 C/W O.S. NO.5621/2013 BY THE XXIV ADDITIONAL CITY CIVIL & SESSIONS JUDGE, AT BENGALURU, VIDE ANNEXURE-L AND CONSEQUENTLY ALLOW IA NO.23.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner - plaintiff filed the present writ petition against the order dated 23.1.2019 on I.A. No.23 in O.S. No.5621/2013 rejecting the application filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure for amendment of paragraph-3 of the plaint and also the schedule to correct the boundaries of the suit property.
2. The plaintiff filed the suit for Permanent Injunction in respect of the suit schedule property contending that he is the owner in possession of the same. The defendants filed the written statement and denied the averments made in the plaint. The 1st defendant also filed another suit i.e., O.S. No.26195/2013 for Permanent Injunction against the plaintiff. Both the suits are clubbed. When the matter was posted for cross-examination of PW.1, at that stage the present application came to be filed under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint, contending that boundaries are wrongly mentioned in paragraph-3 and also in the schedule to the plaint due to inadvertence and typographical error and the same came to noticed when the matter is posted for cross-examination and the amendment does not prejudice the case of the defendants and further, the defendant No.1 also filed the suit for Permanent Injunction. Therefore sought to allow the application. The defendant filed objections to the application.
3. The trial Court considering the application and the objections by the impugned order dated 23.1.2019 dismissed the application on the ground that the application filed after commencement of the trial cannot be allowed and if the plaintiff is allowed to amend the boundaries, it would take away right accrued to the defendant. Hence the present writ petition is filed for the reliefs sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Sri K.K. Vasanth, learned counsel for the petitioner – plaintiff vehemently contended that the impugned order passed by the trial Court rejecting the application filed for amendment of paragraph-3 of the plaint and also the schedule to correct the boundaries of the suit property, is erroneous and contrary to the material on record. By mere allowing the application for incorporating the correct boundaries in terms of the documents, no prejudice would be caused to the defendants. It was due to typographical error, the boundaries are wrongly shown in the plaint. Therefore he sought to allow the writ petition.
6. Ms. Rakshitha D.J., learned counsel for the respondents – defendants sought to justify the impugned order passed by the trial Court and contended that the suit was filed in the year 2013 and the application for amendment of the plaint was filed in the year 2018 when the matter was posted for cross-examination of PW.1 only to protract the proceedings and the defendant No.1 is aged about 71 years. Therefore she sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff filed the suit for partition in respect of the suit schedule property. The defendants filed the written statement and denied the averments in the plaint. The 1st defendant also filed O.S. No.26195/2013 against the plaintiff in respect of the very property in question, contending that he is the owner. Both the suits are clubbed together and posted. When the matter was posted for cross-examination of PW.1, at that stage the present application came to be filed under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint, contending that boundaries are wrongly mentioned in paragraph-3 and also in the schedule to the plaint due to inadvertence and typographical error. Mere allowing the application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of paragraph-3 of the plaint, wherein facts and the boundaries are mentioned and also schedule to the plaint, will not prejudice the case of the defendants. The trial Court dismissed the application on the ground that the amendment application is filed after the commencement of the trial.
8. It is well settled that the application for amendment under Order 6 Rule 17 of the Code of Civil Procedure can be filed by either of the parties at any stage of the proceedings if the amendment will not alter the nature of the suit or prejudice the other side. By mere allowing the application for amendment of the boundaries, the defendant will not be prejudiced. In the present case, the amendment sought is imperative for proper and effective adjudication of the case and the application for amendment is bonafide. The amendment will not cause prejudice to the case of the defendants. Refusing the amendment will lead to injustice or lead to multiple litigation. The amendment of the boundaries will not constitutionally or fundamentally change the nature and character of the case. In view of the above, the impugned order passed by the trial Court cannot be sustained.
9. For the aforesaid reasons, the writ petition is allowed. The impugned order passed by the trial Court on I.A. No.23 is hereby set aside. I.A. No.23 filed under Order 6 Rule 17 of the Code of Civil Procedure is hereby allowed. Amended plaint shall be filed within a period of 14 days from the date of receipt of copy of the order and in case the defendants want to file additional written statement, the same shall be filed within a period of another 14 days.
10. Taking into consideration that the suit was filed in the year 2013 and considering the age of the plaintiff and the defendants, the trial Court is directed to dispose of the suit at the earliest subject to cooperation from both the parties to the lis. Both the plaintiff and the defendants shall not drag on the matter unnecessarily and should proceed with the case with due diligence.
Accordingly, the writ petition is allowed with the above observations.
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JUDGE gss/-