IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19th DAY OF SEPTEMBER 2016 BEFORE THE HON’BLE MR.JUSTICE L. NARAYANA SWAMY R.F.A.NO.429 OF 2013 (INJ) BETWEEN:
K.L. VIDYA SHANKAR AGED ABOUT 52 YEARS S/O SHRI. K.L. NARAYANA SWAMY R/O FLAT NO.3332 3RD FLOOR, 3RD BLOCK ‘JANAPRIYA HEIGHTS’ MALLASANDRA BENGALURU – 560 057 (BY SRI. L. GOVINDARAJ, ADVOCATE) AND:
JANAPRIYA HEIGHTS FLATS OWNERS ASSOCIATION REPRESENTED BY ITS PRESIDENT, SY.NO.80/1A & 80/1C, MALLASANDRA HESARAGHATTA MAIN ROAD BENGALURU – 560 057 (BY SRI. A.Y.N. GUPTA, ADVOCATE) …APPELLANT ... RESPONDENT THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 06.12.2012 PASSED IN O.S.NO.4133/2007 ON THE FILE OF THE VIII ADDL. CITY CIVIL & SESSIONS JUDGE BENGALURU DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS RFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant is the plaintiff. He filed a suit against the respondent defendant to restrain the defendant from disconnecting the water and electricity supply to his flat. The suit came to be rejected on 6.12.2012, against which, the plaintiff preferred this appeal.
2. It is the case of the appellant in the suit that the defendant–Janapriya Heights Flats Owners Association disconnected the water and electricity supply to his flat on the ground that the appellant has not paid subscription to the defendant. It is submitted by learned counsel for the appellant that now the electricity and water supply has been restored after payment of maintenance charges.
3. As things stood thus, the appellant filed application under Order 6 Rule 17 CPC for amendment of the plaint to include additional pleadings and claim damages before this Court. The grounds urged by the appellant in the affidavit filed in support of the application is that due to the harassment meted out to him by the defendant, he underwent heart surgery twice and hence seeks damages from the respondent. The submission of the learned counsel for the appellant is that the application filed under Order 6 Rule 17 CPC be allowed and the defendant be directed to pay the damages caused to him.
4. Whereas it is the contention of learned counsel for the defendant that the application filed under Order 6 Rule 17 CPC is not maintainable as the same is filed belatedly i.e., after lapse of about seven years.
5. It is the submission of the learned counsel for the appellant that the application under Order 6 Rule 17 CPC can be filed at any stage of the proceedings before the disposal of the appeal. To substantiate the same, he referred to Section 40 of the Specific Relief Act and a decision of the Hon’ble Supreme Court in the case of SRI M.R.K. RAU AND OTHERS Vs CORPORATION OF THE CITY OF BANGALORE, BY ITS COMMISSIONER reported in AIR 1992 KAR 411.
6. Learned counsel for the respondent on the other hand prays for dismissal of the application as the same is not maintainable. According to the appellant, the cause of action arose about 12 years ago and the appellant has not made out any specific case as to the hardship caused to him for the purpose of seeking damages. It is his contention that the application could have been filed during the pendency of the suit and choosing not to file the application during the pendency of the suit is a ground to dismiss the application.
7. I have heard learned counsel for the parties.
It is not in dispute that the appellant was residing at Flat No.333/2, 3rd floor, 3rd Block, Janapryia Heights, Mallasandra, Bangalore-560 057. The question to be considered is “whether the appellant can file application for amendment claiming damages at this stage”. Section 40 of the Specific Relief Act, 1963 provides for filing the application for amendment of the plaint at any stage of the proceedings. If in case the appellant plaintiff fails to claim damages in the suit, he is permitted to make the application for amendment at any stage of the proceedings. The said provision of Specific Relief Act has been discussed in detail in the judgment cited supra, wherein it has been held that the claim for damages is inherent in a suit for perpetual injunction or mandatory injunction and it is open for the plaintiff to amend the plaint at any stage of the proceedings and include the claim for damages. In view of the dictum laid down by the Hon’ble Apex Court, the application filed for amendment of the prayer is liable to be allowed. Hence, the matter is remitted to the trial court to pass appropriate orders on the application filed by the appellant under Order 6 Rule 17 CPC, without going into the merits of the case.
8. Accordingly, the appeal is allowed. The matter is remanded back to the trial court for passing appropriate orders in accordance with law only insofar as the application I.A.1/14 filed under Order 6 Rule 17 CPC is concerned, however, after affording opportunity to both the parties. In all other respects, the order of the trial court remains undisturbed.
Sd/- Judge *mn/-