IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.27101-27102/2017(GM-CPC) BETWEEN:
1. DR. R. VENKATACHALA SETTY S/O K VENKATARAMAIAH AGED ABOUT 82 YEARS R/AT BELLARY ROAD PAVAGADA, TUMAKUR DIST-561 202.
2. V. VENKATESHA (SOGADU) S/O K. VENKTAPPA AGED ABOUT 44 YEARS SECRETARY SHREYAS SOCIETY, TEACHERS COLONY PAVAGADA TOWN, TUMAKURU DIST-561 202 ... PETITIONERS (BY SMT. NALINA K., ADVOCATE FOR SRI VENKATA REDDY S K, ADVOCATE) AND:
1. D. V. SATHYANARAYANA SINCE DEAD BY HIS LRS a) CHAMANTHA D/O LATE D. V. SATHYANARAYANA AGED ABOUT 52 YEARS b) DR. MADHUMATHI D/O LATE D. V. SATHYANARAYANA AGED ABOUT 50 YEARS c). MANJUNATHA, D/O LATE D. V. SATHYANARAYANA AGED ABOUT 48 YEARS RESPONDENTS 1 TO 3 ARE R/AT 38TH CROSS, 5TH BLOCK JAYANAGAR, BENGALURU-560 041.
2. D. V. RAMAMURTHY S/O LATE D. VENKATAIAH AGED ABOUT 70 YEARS R/AT NO.16/1, 1ST CROSS NEHRU NAGAR BENGALURU-560 020 3. D V VISHWANATH S/O LATE D VENKATAIAH AGED ABOUT 68 YEARS R/AT NO.809, 1ST BLOCK II STAGE, NAGARABHAVI BENGALURU-560 072.
4. D V ASWATHANARAYANA SETTEE S/O LATE D VENKATAIAH AGED ABOUT 65 YEARS R/O PONNASAMUDRA PAVAGADA TALUK TUMAKURU DIST-561 202 5. D V RAJAGOPAL S/O LATE D VENKATAIAH AGED ABOUT 63 YEARS R/O PONNASAMUDRA PAVAGADA TALUK TUMAKURU DIST-561 202 6. D V KRISHNAMURTHY S/O LATE D VENKATAIAH AGED ABOUT 60 YEARS R/O PONNASAMUDRA PAVAGADA TALUK TUMAKURU DIST-561 202 7. D V CHANDRASHEKAR S/O LATE D VENKATAIAH AGED ABOUT 58 YEARS R/O PONNASAMUDRA PAVAGADA TALUK TUMAKURU DIST-561 202 8. D V ADISESH, S/O LATE D VENKATAIAH AGED ABOUT 50 YEARS R/O PONNASAMUDRA PAVAGADA TALUK TUMAKURU DIST-561 202 9. RATHNAMMA W/O LATE RAVANAPPAGARI SATHYANARAYANA SETTY D/O LATE D VENKATAIAH SINCE DEAD BY HER LRS a) SATHYAPRABHAMANI W/O D K NAGARAJA AGED ABOUT 75 YEARS R/AT NO.50, II CROSS GAVIPURAM EXTENSION BENGALURU-560 019 b) SMT. VIJAYALAKSHMI P A W/O P M AMARENDRANATH AGE :MAJOR R/AT NO.106 4TH MAIN ROAD, AMARA JYOTHI LAYOUT HEBBAL, BENGALURU-560 024 c) SMT. NAGALAKSHMAMMA P B W/O P. BASAVARAJ AGED ABOUT 67 YEARS R/AT NO.29/116 KAVERI NAGAR BANASHANKARI II STAGE BENGALURU-560 089 d) H S CHANDRASHEKAR S/O RATHNAMMA AGED ABOUT 69 YEASR R/AT NO.179, 5TH MAIN ROAD 11TH CROSS, MALLESHWARAM BENGALURU-560 055.
e) H S KRISHNAMURTHY S/O RAVANAPPAGARI SATHYANARAYANA SETTY AGED ABOUT 62 YEARS R/AT NO.399/91 18TH CROSS, M. C. LAYOUT OPP VIJAYANAGAR, BENGALURU-560 040.
f) H S RAVEENDRANATH S/O RAVANAPPAGARI SATHYANARAYANA SETTY AGED ABOUT 57 YEARS R/AT OLD POST OFFICE ROAD Y N HOSAKOTE POST PAVAGADA TALUK TUMAKURU DIST-572 141.
10. GAJALAKSHMI W/O HARINATH T A AGED ABOUT 53 YEARS D/O LATE D VENKATAIAH R/AT NO.104-B, 6TH CROSS 1ST PHASE, J P NAGAR BENGALURU-560 019.
(BY SRI B. M. BALIGA, ADVOCATE FOR R8;
... RESPONDENTS R3, R4, R9(f), R9(b), R10 ARE SERVED BUT UNREPRESENTED; NOTICE TO R1(a-c) R2, R5 TO R7, R9 (a,c,d, & e) ARE DISPENSED WITH VIDE ORDER DATED 18.03.2019) … THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 6.4.2017 PASSED ON I.A.NO.34 FILED UNDER ORDER VI RULE 17 READ WITH SECTION 151 OF CPC IN O.S.NO.16/1999.
BY THE SENIOR CIVIL JUDGE & JMFC PAVAGADA, VIDE ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiffs have filed the present writ petitions against the order dated 6th April, 2017 on I.A.34 made in O.S.No.16/1999 on the file of the Senior Civil Judge & JMFC., Pavagada rejecting the application filed for amendment of plaint schedule property bearing Site No.45 as Site No.6 contended that in a public auction, Sri N.S. Vishwanathasetty purchased the suit site and the action stood in the name of Davanam Venkataiah. The amount that was paid to the Municipality to purchase schedule property in the auction was paid out of joint business account and therefore, N.S. Vishwanathasetty became the owner of the schedule property and in exclusive possession till 1946 and thereafter, the khatha was also mutated in his name and after his death, Keshavaiahsetty continued to be in possession of the said property and he sold the suit site to petitioner No.1 on 15.4.1981. By over sight and by a bonafide mistake, the site number has been incorrectly pleaded as 45 instead of 6 in the plaint and schedule. Therefore, the application came to be filed by the plaintiffs. The trial Court considering the application and objections by the impugned order dated 6th April, 2017 dismissed the application with cost of Rs.200/-. Hence, the present writ petitions are filed.
2. I have heard the learned Counsel for the parties to the lis.
3. Smt. Nalina for Sri S.K. Venkata Reddy, learned Counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the application for amendment of the site number in the plaint and schedule in the plaint is erroneous and contrary to the material on record. She further contended that the application for amendment is filed only to rectify the site number which was wrongly mentioned as site No.45 instead of site No.6 in the plaint and the schedule which will not alter the nature of the suit.
4. She further contended that when the matter was posted for arguments, at that stage, the plaintiffs filed an application to amend the site No. 6 instead of Site No.45 in the schedule to the plaint reiterating the averments made in the plaint and the trial Court has erroneously rejected the application. She would contend that in a suit for declaration and injunction, the trial Court ought to have allowed the application. Mere allowing the amendment as site No.6 instead of site No.45, no prejudice would be caused to the defendants. Therefore, she sought to allow the writ petitions.
5. Per contra, Sri Baliga, learned Counsel for the respondents sought to justify the impugned order and contended that when the suit was filed in the year 1999, the application for amendment is filed at a belated stage that too, when the matter was posted for arguments. Therefore, he submitted that absolutely no case is made out and the trial Court was justified in dismissing the application. As such, he sought to dismiss the petition.
6. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiffs filed a suit for declaration and for permanent injunction in respect of the suit schedule property raising various contentions. The same is disputed by the defendants by filing the written statement. The amendment sought in the application is for amendment in the schedule as Site No.6 instead of Site No.45 in the averments made in para-16 of the plaint. The affidavit filed in support of the amendment clearly states that by mistake the site purchased by the plaintiff No.1 was wrongly mentioned as Site No.45 instead of Site No.6. Therefore, the plaintiffs sought to allow the application for amendment. Merely allowing site No.6 in the schedule instead of 45 would not cause any prejudice to the defendants and ultimately it is for the plaintiffs to prove the declaration and permanent injunction based on the oral and documentary evidence to be adduced and produced by both the parties to the lis.
7. Though the application is filed at a belated stage, still the amendment will not change or alter the nature of the suit. The amendment sought in the schedule as site No.6 instead of 45 is imperative for proper and effective adjudication of the case and the application filed was due to bonafide mistake of the Counsel and the said amendment will not prejudice the case of the other side. Refusing the amendment would lead to injustice and multiplication of litigation. Since the proposed amendment in the schedule as site No.6 instead of site No.45 will not change or alter the nature of the suit, the application for amendment has to be allowed imposing reasonable cost of Rs.2,000/-.
8. For the reasons stated above, writ petitions are allowed. The impugned order dated 6th April, 2017 passed on I.A.34 in O.S.No.16/1999 on the file of the Senior Civil Judge and JMFC., Pavagada filed under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure is hereby quashed and the plaintiff is permitted to amend the site No.6 instead of site No. 45 at para-16 of the plaint and in the schedule to the plaint subject to payment of costs of Rs.2,000/- by the plaintiffs to the defendants on the next date of hearing before the trial Court. All other contentions raised by the defendants are kept open to be urged before the trial Court.
9. Since the suit is of the year 1999 and we are in the year 2019, Counsel for the parties are hereby requested to co-operate with the Court in proceeding with the suit and the trial Court shall expedite the suit itself subject to co-operation by the parties to the lis.
10. The respondents have filed an application for temporary injunction before this Court. Since the matter is disposed of on merits, it is open for respondent No.8 to file such application before the trial Court for temporary injunction. If such an application is filed, the trial Court shall consider and pass orders in accordance with law. Till such application is filed, the present petitioners shall not proceed with the construction, if any, in Site No.6 of the suit schedule property in view of the amendment.
Ordered accordingly.
Sd/- Judge Nsu/-