IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P. No. 41748 OF 2017 AND W.P.No. 42315 OF 2017 (GM - CPC) BETWEEN :
DR. SHAIKH ALI S/O MR.MOHAMMED AZEEZULLA AGED ABOUT 48 YEARS R/AT: NO.6, MASJID STREET 4TH MAIN ROAD, CHINNAPPA GARDEN BENGALURU-560 046 ... PETITIONER (BY SRI. RAHAMATHULLA SHARIFF, ADVOCATE) AND 1. MISS. SANA UMME KHASE FATIMA D/O MR.MOHAMMED SANAULLA AGED – MAJOR NO.54, 4TH MAIN, DOMLUR, 2ND STAGE BENGALURU-560 045 2. DR. SADIYA AGED – MAJOR SADIYA CLINIC OPP.ARFA BAKERY 6TH CROSS, A.P.J.KALAM ROAD GOVINDAPURA ARABIC COLLEGE POST BENGALURU-560 045 ... RESPONDENTS (BY SRI. P.S.RAJENDRA, ADV. FOR R1; R2 DELETED V/O. DT: 06.06.2019) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN O.S.NO.7598/2013 I.A.NO.7 & 8 DATED 31.08.2017 VIDE ANNEXURE-A AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner being the 2nd defendant in an injunctive suit filed by the respondents in O.S.No.7598/2013, is invoking the writ jurisdiction of this Court for assailing the common order dated 31.08.2017, a copy whereof is at Annexure-A, whereby, the learned XX Addl. City Civil Judge, Bengaluru, has allowed the respondents’ application in I.A.No.7 filed under Order VI Rule 17 for amending the plaint and also appointed a Court Commissioner in terms of application in I.A.No.8 filed under Order XXVI Rule 9 of CPC, 1908. After service of notice, the respondents having entered appearance through their counsel, resist the Writ Petitions.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines to interfere in the matter because:
(a) the need to amend the plaint has arisen because of alleged construction done after the filing of the suit, that too allegedly in gross violation of the undertaking given to the Court below; therefore, it cannot be said that either it is belated or it lacks the bonafide; if the leave was not accorded for amending the plaint by introducing the prayer for mandatory injunction, a manifest injustice would have been caused to the respondent- plaintiff;
(b) no prejudice will be caused to the petitioner by the amendment of the plaint inasmuch as it is open to him to file his Addl. Written Statement once the Amended Plaint is filed; the petitioner is granted a period of four weeks to file his Addl. Written Statement, after the Amended Plaint is filed; it is open to the petitioner to take up all contentions as are available in law for resisting the suit; and, (c) the order appointing the Court Commissioner cannot be faltered inasmuch as the Commissioner’s report would be an added advantage for the adjudication of lis especially when the assertion of the respondents that they have not put up any construction in violation of the building license/plan or their undertaking, have been specifically denied; it is open to both the petitioner and the respondents to object to the Commissioner’s report if it is going to be adverse to their respective stand; it is needless to mention that necessary instructions may be sought for from the court below to the Commissioner, if need arises.
In the above circumstances, these Writ Petitions being devoid of merits, are disposed off without granting indulgence in the matter.
Sd/-
JUDGE KG