IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOS.52852-854/2017 (GM-CPC) BETWEEN:
1. DEVEGOWDA AGED ABOUT 76 YEARS S/O LATE EARE GOWDA 2. NINGAPPA AGED ABOUT 71 YEARS S/O LATE EARE GOWDA 3. VIRABADRAPPA AGED ABOUT 66 YEARS S/O LATE EARE GOWDA 4. RAMESHA AGED ABOUT 46 YEARS S/O DEVEGOWDA 5. RAJE GOWDA AGED ABOUT 74 YEARS S/O LATE EARE GOWDA 6. GANGADHAR AGED ABOUT 44 YEARS S/O RAJE GOWDA ALL THE PETITIONERS ARE RESIDENT OF: MAKAVALLI VILLAGE KASABA HOBLI HOLENARASIPURA TALUK-573211 HASSAN DISTRICT.
... PETITIONERS (BY SRI. CHETHAN B. ADV) AND:
1. DEVEGOWDA S/O NANJEGOWDA @ NANJAPPA AGED ABOUT 70 YEARS R/O MAKAVALLI VILLAGE KASABA HOBLI HOLENARASIPURA TALUK-573211 HASSAN DISTRICT 2. THE SECRETARY GRAMA PANCHAYATH PADUVALIPPE HOLENARASIPURA TALUK-573211 HASSAN DISTRICT.
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH COMMON ORDER DTD:9.10.2017 ON I.A. NO.XVI, XVII AND XVIII IN O.S. NO.278/2017 BY THE HON’BLE ADDITIONAL CIVIL JUDGE AND JMFC AT HOLENARASIPURA BY ALLOWING I.A. NO.8 AS PER ANNEXURE-A ETC.
THIS WRIT PETITION COMING ON FOR ‘PRELIMINARY HEARING’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The Defendant Nos.1 to 6 filed the present writ petitions against the order dated 09.10.2017 made in O.S. No.278/2011 allowing the applications filed by the plaintiff, I.A. No.XVI filed under order VI Rule 17 read with Section 151 of Code of Civil Procedure for amendment of plaint. I.A. No.XVII filed under Section 151 of Code of Civil Procedure for reopening of Plaintiff’s evidence and I.A. No.XVIII filed under order XVIII Rule 17 of Civil Procedure Code for recall of P.W.1 only for the purpose of marking the documents.
2. The respondent No.1 who is the plaintiff before the trial court filed a suit for declaration and permanent injunction in respect of the suit schedule property, morefully described in the schedule contending that he is the absolute owner and in possession of the suit schedule property. The same is disputed by the defendants contending that the defendants are the owners of suit schedule property under a registered sale deed dated 08.01.1962 and they are in possession and enjoyment of the same. The plaintiff is not entitled for the relief and sought for dismissal of the suit.
3. After completion of the evidence on both sides, when the matter was posted for arguments, at that stage the plaintiff filed I.A. No.XVI under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure and sought for amendment in the plaint schedule before serial No.132 to insert the Khata No.61, contending that a few days back when they were cleaning the house, a document namely, an award notification 09.01.1993 came to light. On verification they came to know that the suit property was a subject matter of the acquisition for the Hemavathi River Project. During the search at Land Acquisition Office, Hassan, it came to the knowledge of the plaintiff that the suit property was acquired on obtaining the document from the Land Acquisition Office bears the Katha number and boundaries. Thereafter, they came to know on perusal of the documents that the Khata number of the suit property is 61. Therefore, sought for amendment.
4. The plaintiff also filed I.A. No.XVII under Section 151 of the Code of Civil Procedure for reopening of Plaintiff’s evidence and I.A. No.XVIII under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure to recall PW-1 for further cross-examination. Reiterating the averments made in the plaint contended that in view of the application filed for amendment, the documents for acquisition has to be produced before the court. The said application was opposed by the defendants contending that the applications were filed at a belated stage, only after thought and second time they filed applications when the matter was posted for arguments.
5. The trial court considering the applications and objections by the impugned order has allowed the applications with cost of Rs.2,000/- payable to the defendants. Hence, the present writ petitions are filed.
6. I have heard the learned counsel for the petitioners.
7. Sri. Chethan B. learned counsel for petitioners vehemently contended that the impugned order passed by the trial court allowing the applications filed by the plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, under Section 151 of Code of Civil Procedure and under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure is erroneous and contrary to material on record. He would further contend that applications filed when the matter was posted for arguments. If the application is allowed to insert the Khata number in the suit property, it will lead to change the nature of the property, nothing but a new suit and will alter the nature of the suit. He would further contend that in view of the proviso to order VI Rule 17 of the Code of Civil Procedure, the application for amendment is not permissible when the matter was posted for arguments. The plaintiff also filed two other applications one for recalling of PW1 and one for reopening the plaintiff’s evidence which will lead to drag the proceedings. Therefore, he sought to quash the impugned order passed by the trial court.
8. Having heard the learned counsel for the petitioners, it is not in dispute that the plaintiff/first respondent filed a suit for declaration, permanent injunction and contending that he is the owner and possession of the suit schedule property. The same was disputed by the defendants in their written statement contending that they are the owners of the suit property by virtue of the sale deed dated 08.01.1962 and they are in possession. It is for the parties to establish based on the oral and documentary evidence to prove that they are in respective possession as lawful owners. Though the matter was posted for arguments, at that stage three applications were filed by the plaintiff. One application to amend the plaint schedule before the serial No.132 as Khata No.61 mere allowing the amendment inserting the Khata No.61 before serial No.132 mentioned in the schedule will not amounts to a new suit property. According to the plaintiff serial No.132 of Khata No.61 are one and the same. It is ultimately for the plaintiff to prove the ownership of Khata No.61 serial No.132 of the suit property based on the oral and documentary evidence on record. Mere allowing the number in the schedule, does not amount to change the property or character of the suit.
9. The amendment sought is based on some set of facts, what is sought is only for amendment in the plaint schedule before the serial No.132 as Khata No.61. Mere allowing the amendment will no way prejudice the case of the defendants. The plaintiff wants to produce some documents and mark the same. In the application specifically stated that to recall further evidence of PW1 only to mark the documents pertaining to Khata No.61 and nothing beyond that.
10. The trial court considering the applications and objections specifically recorded a finding that the proposed amendment is to insert the words “(Khata No.61)” before the words “(Sl. No.132)” in the plaint schedule. The reasons assigned in the affidavit are the property Khata number of the suit property did not mention by the revenue officials and the suit property and khata No.61 are one and the same. The plaintiff has produced certified copy of the two notifications and a notice issued by the Special Land Acquisition Officer which depicts that the Khata No.61 of Makavalli Village. It is not proper to test the correctness of contention of the affidavit and the opportunity to be given to prove his contention by allowing the amendment to the plaint schedule as prayed for. The proposed amendment is necessary for determination of real question in controversy between the parties and proposed amendment if allowed, it does not cause any harm to the defendants. Accordingly, the application came to be allowed.
11. The trial court further held in view of the amendment application I.A. No.XVII and XVIII seeking reopen of the plaintiff’s side evidence and recall the PW- 1 is only for the purpose of marking the documents, will no way prejudice the case of the defendants.
Accordingly, the trial court allowed all the applications with cost of Rs.2,000/-.
12. The contention of the learned counsel for the petitioners that the application filed at a belated stage that too after commencement of evidence is not permissible, cannot be accepted. It is well settled that at any stage of the proceedings the amendment can be allowed, unless it will not prejudice the case of the other side, nor alter the nature of the suit. Admittedly, by inserting a Khata number No.61 before serial No.132, will not change the nature of the suit, nor prejudice the case of the defendants. Ultimately, it is for the plaintiff to prove that serial No.132 and the Khata No.61 are one and the same of the suit schedule property by oral and documentary evidence on record. The amendment sought is only to insert in the plaint schedule as Khata No.61 before serial No.132 is imperative and proper for effective adjudication. The application is filed for bonafide and will not prejudice the case of the other side. By refusing the amendment would in fact cause injustice and lead to multiple litigations. The amendment sought in plaint schedule is Khata No.61 before the serial No.132 of the suit schedule property, will not change the constitutionally and fundamentally the nature and character of the suit.
13. Therefore, the trial court was justified in allowing the applications with a cost of Rs.2,000/- and the petitioners have not made out any ground to interfere with the impugned order passed by the trial court, under supervising writ jurisdiction of the court under Article 227 of the Constitution of India. It is needless to observe that the defendants can file additional written statement if any immediately.
14. Taking into consideration that the suit was filed in 2011, we are in 2017, the trial court is directed to expedite the suit subject to co-operation of both the parties to the lis.
Accordingly, the writ petitions are dismissed.
SD/- JUDGE Chs*