IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.9593 OF 2017 (GM-CPC) BETWEEN M.B.Channaveerappa S/o. Basavanyappa, Aged about 52 years, R/o. Mudigowdara Street, Shikaripura Town.
Shivamogga District-577427, (By Sri. P.N.Harish, Advocate) AND 1. Jeni Basamma, W/o. Jeni Giddappa, Major in age 2. Jeni Nagaraja S/o. Jeni Giddappa, Major in age 3. Jeni Shankara, S/o. Jeni Giddappa, Major in age 4. Jeni Chandrappa S/o. Kannappa Major in age …Petitioner Respondents 1 to 4 are R/o. Shantinagara Extension Shikaripura Town-577427, Shivamogga District.
…Respondents (By Sri. S.V.Prakash, Advocate for R1, R3 and R4) This Writ Petition is filed under article 227 of the Constitution of India, praying to quash the order dated 04.02.2017 passed by Learned Civil Judge, Shikaripura in O.S.No.125/2001 at Annex-E and thereby dismiss the I.A. filed by the respondents under order VI Rule 17 read with Section 151 of CPC in O.S.No.125/2001 on the file of Learned Civil Judge, Shikaripura at Annexure-c.
This Writ Petition coming on for orders, this day, the Court made the following :
ORDER Heard the petitioner’s counsel and the respondents’ counsel. The petitioner has filed this writ petition seeking to quash the order dated 04.02.2017 passed by the learned Civil Judge, Shikaripura in O.S.No.125/2001 as per Annexure ‘E’.
2. The petitioner is the plaintiff in the suit. His suit is for declaration of his title and possession of the plaint schedule property. The respondents/defendants proposed an amendment to the written statement by filing an application under Order 6 Rule 17 CPC. The respondents wanted to amend the written statement by stating that according to the Commissioner’s report, part of the plaint schedule property belongs to Government and the remaining part belongs to the family members of the plaintiff and thus the plaintiff played fraud at the time of executing agreement of sale in favour of the defendants and therefore the plaintiff is liable to pay damages of Rs.2,00,000/- to them. The trial court came to conclusion that the defendants’ intention to amend the written statement was not to withdraw any admission made by them, but to explain the earlier contentions taken by them. Therefore the trial court granted the amendment.
3. The learned counsel for the petitioner argues that the application to amend the written statement was filed at the stage when the suit was posted for arguments. The defendants wanted to amend the written statement based on the Commissioner’s report which is already available in the file. There is no need to amend the written statement. They could have referred to the Commissioner’s report to assail the stand of the petitioner that the entire plaint schedule property belongs to them. The proposed amendment changes the nature of the defence. In these circumstances amending the written statement should not have been granted. On the other hand the learned counsel for the respondents submits that the petitioner is not at all affected in any way. Already in the written statement, it is stated that the defendants are entitled to damages. Though Commissioner’s report is there, the defendants want to amplify their contentions based on the Commissioner’s report. If may be a fact that the application was filed at the stage when the suit was posted for arguments, but just because the amendment application was allowed, it cannot be said that the interest of the plaintiff is affected in any way. Even the defendants do not want to lead any further evidence. In these circumstances, the trial court is justified in granting the application for amendment.
4. I have perused the written statement of the defendants. In the written statement they have stated that they are entitled to damages of Rs.2,00,000/-, but it has just remained as a statement. It cannot be considered as a counter claim. It is true that the defendants want to refer to the Commissioner’s report to assert that the part of the plaint schedule property belongs to the Government. It is a suit for declaration of title and possession. If the plaintiffs are entitled to a decree of declaration and possession, they must prove their title. If according to the Commissioner’s report the property belongs to the Government, the court has to take a decision based on the report. If the defendants want to amend the written statement by referring to the Commissioner’s report, it cannot be said that the defendants are taking up a new plea to change the nature of their defence. Of course, as argued by the petitioner’s counsel, there is no need to amend the written statement; based on Commissioner’s report, which can be referred to straight away. That apart, it also appears that the proposed amendment does not show that the defendants intend to withdraw any admission made by them in the written statement. The defendants also do not want to lead for their evidence. In these circumstances I do not think that the interest of the plaintiff is affected in any way if written statement is permitted to be amended. The trial court has given justifiable reasons for allowing the amendment. Therefore the writ petition is dismissed.
Sd/- JUDGE sd