IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.55539/2018 & WRIT PETITION NO.28387/2019 (GM-CPC) BETWEEN 1. THE COMMISSIONER, B.B.M.P, CORPORATION BUILDING, RANI CHENNAMMA CIRCLE, BANGALORE.
2. DEPUTY COMMISSIONER, (MARKET) DASAPPA HOSPITAL, TOWN HALL CIRCLE, BANGALORE. ... PETITIONERS (BY SRI.AMIT DESHPANDE, ADVOCATE) AND MR.SANJEEVI K, S/O LATE KANNAPPA, AGE NOT KNOWN, MAJOR, RESIDING AT NO.127, 2ND MAIN ROAD, 12TH CROSS, NANJAMBA AGRAHARA, CHAMARAJPET, BANGALORE – 560 018. ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ALLOW THE W.P. BY QUASHING THE IMPUGED ORDER DATED 20.06.2018 PASSED BY THE LEARNED XXVI ADDL CITY CIVIL & SESSIONS JUDGE AT MAYO HALL BANGALORE (CCH-20) IN O.S.NO.26836/2011 VIDE ANNX-D AND BY ALLOWING IA NO.4 VIDE ANNX-F BY REJECTING THE PLAINT AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the defendants in respondents suit in O.S.No.26836/2011 are knocking at the doors of Writ Court for assailing the order dated 20.06.2018, a copy whereof is at Annexure-D whereby the learned XXVIth Additional City Civil Judge, Mayo Hall, Bengaluru, having dismissed petitioners’ application in IA No.3 for dismissal of suit has allowed respondent-plaintiff’s application in IA No.4 seeking grant of leave for amending the plaint.
2. Learned Panel Counsel for the petitioners finds fault with the impugned order because:
a) the suit for injunctive relief cannot by way of amendment converted into a suit for damages since it changes the very structure and nature of the suit which the defendants were called upon to meet; the request for amendment having been belatedly sought for and lacking in bona fide could not have been favoured because of the embargo enacted in the proviso to Order VI Rule 17 of CPC, 1908;
b) the learned trial judge failed to see that petitioners’ application filed under Order VII Rule 17 of CPC, 1908 ought to have been allowed; however, there is no due consideration of the said application at the hands of the learned judge;
3. Having heard the learned counsel for the petitioners and having perused petition papers, I am of the considered view that the impugned order cannot be faltered for the following reasons:
i) the suit was filed on 21.10.2011 seeking an injunctive decree; the respondent-plaintiff has moved the application under Order VI Rule 17 of CPC, 1908 on 21.02.2012 seeking leave to amend the plaint, inter alia, by introducing a prayer for grant of a decree for damages; records do not disclose the filing of Written Statement by the petitioners; therefore, it cannot be argued that the application is belated or that it lacks the bona fide;
ii) the argument that when a suit for injunctive decree is converted to the one for damages, its nature enormously changes to the prejudice of the defendants is bit difficult to accept when the amendment now permitted is in the nature of a concomitant to the injunctive prayer; it hardly needs to be said that when the suit prayer is amended, the nature of the suit to some extent gets changed in varying decrees depending upon the nature of the amendment; but the question is:- Whether the enormity of change of the nature of the suit is so high as to cause a huge prejudice to the other side? Viewed from this angle, it cannot be said that the change of the nature of the suit now brought about by the impugned amendment is prejudicial to the petitioner – defendants especially when they were yet to file the Written Statement.
iii) the Court below has held that no case is made out by the petitioners for dismissing the suit, although ideally speaking elaborate discussion could have been made; but even here, the petitioners could not make out a concrete case for allowing their application for dismissal of the suit; going by the plaint averments and the stand taken by the petitioner-defendants both in the Court below and before this Court, there is a triable case in the suit.
In the above circumstances, no other grounds having been urged, these writ petitions are liable to be rejected accordingly, they are.
Sd/- JUDGE Cbc/Bsv