IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS.36535-36 OF 2018 (GM-CPC) BETWEEN D.S.BILIGOWDA, S/O SUBBE GOWDA, AGED ABOUT 63 YEARS, AGRICULTURIST, RESIDING AT DEVARUNDA VILLAGE, GONIBEEDU VILLAGE, MUDIGERE, CHICKMAGALUR DISTRICT – 577135. … PETITIONER (BY SRI.VISHWANATH R HEGDE, ADVOCATE) AND 1. D.S.MANJUNATH, S/O D.A.SANNE GOWDA, AGED ABOUT 55 YEARS, AGRICULTURIST, 2. D.M.USHA, W/O SUDHAKARA, D/O D.S.MANJUNATH, AGED ABOUT 27 YEARS, 3. D.M.UDAYA, S/O D.S.MANJUNATH, AGED ABOUT 25 YEARS, 4. ULLASA, D/O D.S.MANJUNATH, AGED ABOUT 23 YEARS, ALL ARE RESIDENTS OF DEVARUNDA VILLAGE, GONIBEEDU HOBLI, MUDIGERE TALUK, CHICKMAGALUR DISTRICT – 577135. … RESPONDENTS (BY SRI.H.C.SUNDARESH, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMON ORDER DATED 24.02.2018 ON I.A.NO.5 & 6 IN O.S.NO.54/2013 PASSED BY THE COURT OF THE ADDL. CIVIL JUDGE AND JMFC, MUDIGERE (ANNEXURE-G) AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in an injunctive suit in O.S.No.54/2013, is invoking the writ jurisdiction of this court for assailing the order dated 24.02.2018, a copy whereof is at Annexure-G whereby, the learned Addl. Civil Judge, Mudigere, having rejected his applications in I.A.Nos.5 & 6 filed under Order VI Rule 17 r/w section 151 of CPC, 1908 has refused to grant leave for amending the suit into the one for specific performance of the agreement dated 26.03.1993.
2. After service of notice, the respondent-defendants having entered appearance through their counsel, resist the Writ Petitions.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, reprieve needs to be granted to the petitioner for the following reliefs:
(a) the court below proceeds on a wrong premises that a suit for injunction cannot be converted into the one for specific performance since it changes the very nature of the suit as originally filed; any amendment to the suit prayer necessarily results into some change of nature of the suit, but such change alone cannot be a ground for denying the leave to amend the pleadings; what is to be looked at in such cases is the enormity of the change that would put the other side to huge hardship and great loss; this aspect having not been properly adverted to by the learned trial Judge, there is an error apparent on the face of the record warranting indulgence of this court;
(b) the suit is of the year 2013; it was resisted by filing the Written Statement on 3.6.2013; the subject applications are filed in February 2017 when the issues too were not framed; thus, the amendment sought for is at the pre-trial stage and consequently, the interdiction enacted in the proviso to Order VI Rule 17 of CPC is not invocable; even this aspect of the matter also has not been properly discussed by the learned trial Judge; and, (c) a Co-ordinate Bench of this court in more or less similar fact matrix in the case of Ramaswamy Reddy Vs.
Smt.Yellamma (2016) 3 KCCR 2568, has permitted amendment of the injunctive suit for converting it into the one for specific performance; that being the position, there is no reason why the petitioner who is similarly circumstanced should be treated in a different way; however, the amendment needs to be sanctioned with the condition to pay the reasonable costs.
In the above circumstances, these writ petitions succeed; impugned order is set at naught; the subject applications having been favoured, the petitioner is granted leave to amend the plaint as sought for, on paying a cost of Rs.5,000/- to each of the defendants on or before the next date of hearing of the suit or within four weeks, whichever is later, failing which the impugned order now quashed shall stand resurrected.
All other contentions of the parties are kept open.
Sd/- JUDGE cbc