IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S. DIXIT W.P.No.44109/2014(GM-CPC) BETWEEN:
SMT. CHAMUNDIYAMMA W/O KRISHNAPPA AGED ABOUT 59 YEARS R/O KESEREGERE VILLAGE SUGANDAHALLI POST MASTI HOBLI MALUR TALUK – 563 130.
(BY SRI. R.V. RAMESH KUMAR., ADVOCATE) AND:
1. SRI. MOHAMMED KHASIM SABI S/O NOORUF SABI AGED ABOUT 85 YEARS.
2. SRI. SHAIK SATTAR SABI S/O KHASIM SABI AGED ABOUT 65 YEARS.
BOTH ARE R/O MASTHI MAJ K. UPPARAHALLI VILLAGE MASTHI HOBLI MALUR TALUK – 563 130.
3. SRI. SHOUKATHULLA BAIG S/O SANNAULLA BAIG ... PETITIONER AGED ABOUT 55 YEARS R/O MASTHI VILLAGE AND HOBLI MALUR TALUK – 563 130.
4. SHAFIULLA S/O ABDUL AZEEZ KHAN AGED ABOUT 60 YEARS R/O HOSAHALLI MAIN ROAD 7TH CROSS, GOWRIPALYA BANGALORE - 26.
5. BEERAPPA, S/O DODDA JAYRAMAPPA AGED ABOUT 76 YEARS R/O SHAMSHETTIHALLI VILLAGE, MASTHI HOBLI MALUR TALUK - 563 130.
6. SMT. S.K. VENKATALAKSHMAMMA W/O M. MANJUNATH AGED ABOUT 52 YEARS R/O MASTHI VILLAGE AND POST MASTHI HOBLI, MALUR TALUK - 563 130.
7. SRI. SEENAPPA S/O LATE ANDIYAPPA AGED ABOUT 60 YEARS R/O INDIRANAGARA MASTHI VILLAGE AND POST MASTHI HOBLI MALUR TALUK - 563 130.
(R-3 AND R-5 ARE SERVED;
V/O DATED:03.12.2014 W.P. STANDS ... RESPONDENTS DISMISSED AGAIST R-1, R-2, R-4 R-6 AND R-7) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED:01.07.2014 AT ANN-F PASSED ON AN APPLICATION IN I.A. NO. 17 UNDER ORDER 6 RULE 17 OF CPC IN O.S. NO. 21/2009 PENDING ON THE FILE OF THE HON'BLE CIVIL JUDGE[JR.DN.] & JMFC MALUR.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner/plaintiff in O.S.No.21/2009 for a decree of declaration and permanent injunction in respect of subject land is knocking at the doors of writ Court assailing the Order dated 01.07.2014 made by the Trial Judge dismissing his applications in I.A.Nos.16 and 17 seeking leave to amend the plaint. After service of notice, the respondents have chosen to remain absent.
2. Learned counsel for the petitioner/plaintiff contends that the only reason for dismissal of these applications assigned by the Court below is that similar amendment proposed in I.A.No.14 is already rejected, which is factually incorrect; the amendment sought for in the I.A.No.14 related to addition of prayer which was rightly rejected, whereas the amendment now sought for by these two applications is more in the nature of introducing the facts explanatory of the plaint averments and therefore the same could not have been rejected. He further submits that the trial is yet to commence and therefore there is no reason to deny leave to amend the plaint.
3. I have heard the learned counsel for the petitioner and I have perused the petition papers.
4. Suit is of the year 2009; except 7th defendant, others are not contesting parties; it is only the 7th defendant who has filed the Written Statement in the year 2014; the reason assigned by the Court below for denying the leave to amend the pleadings may not be correct inasmuch as the amendment sought for through I.A.No.14 had a different text and context from the one in these applications. Trial is also yet to commence as reflected by the Order sheet itself.
5. Amendment now sought for being explanatory of the plaint averments already taken, the trial Court could have been a bit liberal; no prejudice would be caused to the other side if the amendment is permitted inasmuch as the other side will have an option to file additional pleadings by way of additional Written Statement as a matter of right. The amendment sought for may be in the best interest of a final and complete adjudication of lis.
In the above circumstances, this Writ Petition succeeds; the impugned order is set at naught; application in I.A.No.17 stands favoured and leave is accorded to the petitioner/plaintiff to amend the pleadings and file the amended plaint within four weeks on payment at a cost of Rs.2,000/- to the 7th defendant on or before the next date of hearing of the suit; it is open to the defendants to file additional Written Statement within the next four weeks.
Since the suit is of the year 2009, the trial Judge is requested to trial and dispose of the same expeditiously.
SD/- JUDGE RU