IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO.54262 OF 2016 (GM-CPC) BETWEEN:
KARETHIMMAIAH S/O YALAKKAIAH AGED ABOUT 80 YEARS R/O NARAYANAKERE GOLLARAHATTI HEBBUR HOBLI TUMKUR TALUK AND DISTRICT – 572 120 ... PETITIONER (BY SRI.R.JAYAPRAKASH, ADVOCATE) AND:
1. DASAPPA DEAD BY LRS.
1(A) THIMMAIAH @ PURAIAH S/O LATE DASAPPA AGED ABOUT 40 YEARS R/O NARAY NAKERE GOLLARAHATTI HEBBUR HOBLI TUMKUR TALUK AND DISTRICT – 572 120 1(B) DYAVAMMA D/O LATE DASAPPA W/O MOTAIAH AGED ABOUT 50 YEARS R/O PALYADAHALLI GOLLARAHATTI THIPPASANDRA HOBLI MAGADI TALUK RAMANAGARA DIST. – 562 130 1(C) DODDATHIMMAKKA D/O LATE DASAPPA W/O THIMMAPPA AGED ABOUT 48 YEARS R/O KENGAL GOLLARAHATTI KENGAL, KUNIGAL POST DABASPET HOBLI NELAMANGALA TALUK BENGALURU RURAL DIST.
YELAKKAIAH DEAD BY LRS. 4(A) BUDDAMMA W/O LATE YALAKKAIAH AGED ABOUT 60 YEARS 4(B) VENKATESHA S/O LATE YELAKKAIAH AGED ABOUT 40 YEARS 4(C) GANGANNA @ GALLAIAH D/O LATE YALAKAIAH AGED ABOUT 34 YEARS RESPONDENTS 4, 5 AND 6 ARE R/AT NARAYANAKERE GOLLARAHATTI, HEBBUR HOBLI TUMKUR TALUK AND DISTRICT – 572 120 4(D) RAJAMMA D/O LATE YALAKAIAH AGED ABOUT 33 YEARS R/O BADAVANAHATTI GOLLARAHATTI, KOTTAGERE HOBLI KUNIGAL TALUK TUMKUR DISTRICT – 572 130 4(E) SHIVANNA S/O LATE YALAKKAIAH AGED ABOUT 32 YEARS R/O NARAYANAKERE GOLLARAHATTI HEBBUR HOBLI TUMKURU TQ. & DIST. – 572 120 4(F) GANGALAKSHMAMMA D/O LATE YALAKKAIAH AGED 31 YEARS R/O HOSAHALLI, GOLLARAHATTI GUBBI TQ. TUMKUR DIST. – 572 216 4(G) NAGARAJU S/O LATE YALAKKAIAH AGED 30 YEARS R/O NARAYANAKERE GOLLARAHATTI HEBBUR HOBLI TUMKURU TQ. & DIST. – 572 120 5. SANNAPPA S/O THIMMAIAH AGED ABOUT 40 YEARS AGRICULTURIST 6. MUDDAMMA W/O THIMMAIAH AGED ABOUT 35 YEARS RESPONDENTS 11 AND 12 ARE R/AT NARAYANAKERE, HEBBUR HOBLI TUMAKURU TQ. & DIST. – 572 120 ...RESPONDENTS (SRI.MAHESH C.M., ADVOCATE FOR RESPONDENT NOS.2(A), 2(B) AND 4 RESPONDENT NOS.1(A), 1(C) AND 3 ARE SERVED BUT UNPRESENTED NOTICE TO RESPONDENT NO.1(B) IS DISPENSED WITH THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 20.9.2016 VIDE ANNEXURE-E PASED ON I.A. UNDER ORDER 6 RULE 17 CPC IN O.S.NO.714/2001 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, TUMKURU, ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This writ petition is filed by the plaintiff against the order dated 20.9.2016, passed on I.A made in O.S.No.714/2001, dismissing the application filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, with cost of `2,000/-.
2. The petitioner, who is the plaintiff before the Trial Court filed O.S.No.714/2001, for declaration and permanent injunction against the defendants in respect of the suit schedule properties, more fully described in the schedule to the plaint, contending that the plaintiff is the absolute owner and is in possession and enjoyment of the suit schedule properties. After the death of the father of the plaintiff, all the revenue records relating to the suit schedule properties were transferred in the name of the plaintiff and he is enjoying the same without any interruptions as absolute owner and the defendants are utter strangers to the suit properties and they have no manner of right, title and interest in respect of the suit properties and the defendants are making hectic efforts to dispossess the plaintiff.
3. The defendants filed their written statement, denied the entire plaint averments and contended that they are in possession of the suit schedule properties. The suit filed by the plaintiff is not maintainable and sought for dismissal of the suit.
4. After completion of evidence on both sides, when the matter was posted for arguments on the main suit, the present application came to be filed by the plaintiff on 23-08-2016 under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint by inserting paragraph 2(a) to state that he is in lawful possession having right, title over the suit schedule properties. The plaintiff and defendants No.1, 2 and 4 and other members of the family are all the legal heirs of late Karibuddaiah. The Karibuddaiah is grandfather of the plaintiff. He had sons by name Dasappa, Thimmanna, Kariyappa, Yalakkaiah and Dyavaraiah. Now, all are dead leaving behind their legal representatives i.e., plaintiff, defendant No.1(a) to 1(c) and defendant No.2(a) to (g) and defendant No.4 and other family members as shown in the Genealogical Tree. It was further contended that during the lifetime of father of the plaintiff by name Yalakkaiah and his brother Kariyappa jointly purchased some of the schedule properties through the registered sale deed dated 13-05-1948 from their lawful vendors. During the lifetime of father of the plaintiff Yalakkaiah and his brother Kariyappa have jointly continued in possession and enjoyment of the registered sale deed schedule properties as lawful owners. After demise of the father of plaintiff and defendant No.1 Dasappa and defendant No.2 Yalakkaiah and defendant No.4 Muddamma have continued in joint possession of the schedule properties. Now, defendant Nos.1 and 2 also died leaving behind their legal representatives as shown in the Genealogical Tree. Therefore, sought to amend the plaint.
5. The said application was resisted by defendants No.1, 3 and 4 contending that the application filed is highly belated and not maintainable. The application filed for amendment is nothing but misleading the Court and pleadings is altogether new set of facts to the original suit and it will change the nature of suit. The application was filed when the matter was posted for arguments, only to protract the proceedings. If the amendment is allowed, the entire nature of the suit will be changed. Therefore, sought for dismissal of the application.
6. The trial Court, considering the application and objections, by the impugned order dated 20th September 2016 dismissed the said application with cost of Rs.2,000/-. Hence, the present writ petition.
7. Sri.Jaiprakash, learned counsel appearing for the petitioner contended that the impugned order passed by the trial Court rejecting the application for amendment is erroneous and contrary to the materials on record. He would further contend that the trail Court erred in holding that the amendment introduces new cause of action and change the nature and character of the suit. The very purpose of amendment is only giving the details of family of the plaintiff including the defendants. Mere allowing the amendment application to insert Genealogical Tree of the parties for better understanding will not change the nature or suit. Therefore, sought for quashing the impugned order passed by the trial Court.
8. Per contra, Sri.Mahesh C.M., learned counsel appearing for the respondents sought to justify the impugned order and contended that the application is filed after commencement of the trial i.e., when the matter was posted for arguments which is not permissible in view of the proviso to Order VI Rule 17 of the Code of Civil Procedure. He would further contend that if the amendment is allowed inserting altogether new facts, it will definitely change the nature of suit and therefore sought for dismissal of the writ petition.
9. I have given by anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire materials placed on record carefully.
10. It is undisputed fact that, originally, the plaintiff had filed suit for declaration and permanent injunction, specifically contending that he is the absolute owner in possession and enjoyment of the suit schedule properties. After the death of his father all the revenue records were entered in his name and he is in possession and enjoyment of the same without any interruption. The defendants are utter strangers to the suit schedule properties and they have no manner of right, title or interest over the suit schedule properties. Very curiously in the application for amendment by adding Genealogical Tree of both the plaintiff and defendants they have stated that the plaintiff, defendants No.1, 2 and 4 and others are the members of joint family and all are legal heirs of the late Karibuddaiah. Father of the plaintiff-Yalakkaiah and his brother Kariyappa jointly purchased some schedule properties on 13-05-1948. Therefore, he wants to insert the details of the family members who purchased the said properties jointly and also the Genealogical Tree. It clearly indicates that the amendment sought is altogether new facts to the original pleadings, that too when the matter was posted for arguments. If the amendment is allowed at this stage, it would definitely change the nature of suit and indirectly the amendment will be withdrawing the admissions made in the original plaint, which is impermissible in view of provisions of Order VI Rule 17 of the Code of Civil Procedure.
11. The trial Court after considering the application and objections has recorded a finding of fact that the proposed amendment would change the nature of the suit and would include new cause of action, as such, the proposed amendment application is liable to be dismissed. The very conduct of the plaintiff filing the I.A. at this ultimate stage that too when the matter was posted for arguments is only an intention to drag the proceedings and to avoid arguments of the matter. The suit was filed in the year 2001 and the matter was posted for arguments in the year 2016. At that stage, the present application came to be filed. Therefore, the trial Court rejected the application.
12. Considering the arguments advanced by both the parties and the pleadings urged, this Court is of the view that the present amendment sought is entirely new facts to the original pleadings. Therefore, such amendment definitely introduces new cause of action as such, alter the nature of suit and will prejudice the case of the defendants, since all the parties adduced the evidence based on the original pleadings. The proposed amendment sought is constitutionally and fundamentally changes the nature and character of the case. Therefore, the trial court is justified in dismissing the application and the same is in accordance with law. The petitioner is not entitled to any relief before this Court under Article 227 of the Constitution of India. Accordingly, the petition is dismissed.
AHB/mpk/-* Sd/- JUDGE