IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 35968 OF 2019 (GM-CPC) C/W WRIT PETITION NO. 39330 OF 2018 (GM-CPC) IN W.P. NO. 35968/2019:
BETWEEN:
SHRI. N. KHIWARAM @ KAVEEA RAM, S/O. LATE NEMARAMJI, AGED ABOUT 60 YEARS, RESIDING AT NO. 17, MUTHYALAMMA KOIL STREET, BHARATHINAGAR, BANGALORE-560 001.
… PETITIONER (BY MISS. BHAVANA G K, FOR SRI. CHANDRAKANTH PATIL K, ADVOCATE) AND:
1. M. MUKTHIR AHAMED S/O. LATE MANA KURSHEED AHMED ALIAS AHMED BASHA, AGED MAJOR, RESIDING AT NO.11, KEMPH ROAD, OPP. COLES PARK, BANGALORE-560 005.
2. M. AYUB AHAMED S/O. LATE MANA KURSHEED AHMED, ALIAS AHMED BASHA, AGED MAJOR, RESIDING AT NO. 11, KEMPH ROAD, OPP. COLES PARK, BANGALORE-560 005.
3. M. MASOOD AHAMED S/O. LATE MANA KURSHEED AHMED, ALIAS AHMED BASHA, AGED MAJOR, RESIDING AT NO. 11, KEMPH ROAD, OPP. COLES PARK, BANGALORE-560 005.
4. M. SALEEM AHAMED S/O. LATE MANA KURSHEED AHMED, ALIAS AHMED BASHA, AGED MAJOR, RESIDING AT NO. 11, KEMPH ROAD, OPP. COLES PARK, BANGALORE-560 005.
… RESPONDENTS (BY SRI. SURESH S LOKRE, ADVOCATE FOR R1 TO R4) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 18.07.2019 PASSED ON I.A.NO.3 IN O.S.NO.25252/2009 PENDING ON THE FILE OF XXVI ADDL. CITY CIVIL AND SESSIONS JUDGE AT MAYO HALL, BENGALURU (CCH-75) (ANNEXURE-A).
IN W.P. NO. 39330/2018:
BETWEEN:
SHRI. N. KHIWARAM @ KAVEEA RAM, S/O. LATE NEMARAMJI, AGED ABOUT 60 YEARS, RESIDING AT NO. 17, MUTHYALAMMA KOIL STREET, BHARATHINAGAR, BANGALORE-560 001.
(BY MISS. BHAVANA G K, FOR SRI. CHANDRAKANTH PATIL K, ADVOCATE) AND:
1. M. MUKTHIR AHAMED S/O. LATE MANA KURSHEED AHMED ALIAS AHMED BASHA, AGED MAJOR, RESIDING AT NO.11, KEMPH ROAD, OPP. COLES PARK, BANGALORE-560 005.
… PETITIONER 2. M. AYUB AHAMED S/O. LATE MANA KURSHEED AHMED, ALIAS AHMED BASHA, AGED MAJOR, RESIDING AT NO. 11, KEMPH ROAD, OPP. COLES PARK, BANGALORE-560 005.
3. M. MASOOD AHAMED S/O. LATE MANA KURSHEED AHMED, ALIAS AHMED BASHA, AGED MAJOR, RESIDING AT NO. 11, KEMPH ROAD, OPP. COLES PARK, BANGALORE-560 005.
4. M. SALEEM AHAMED S/O. LATE MANA KURSHEED AHMED, ALIAS AHMED BASHA, AGED MAJOR, RESIDING AT NO. 11, KEMPH ROAD, OPP. COLES PARK, BANGALORE-560 005.
… RESPONDENTS (BY SRI. SURESH S LOKRE, ADVOCATE FOR R1 TO R4) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 28.07.2018 PASSED ON I.A.NO.3 IN O.S.NO.25252/2009 PENDING ON THE FILE OF XXVI ADDL. CITY CIVIL AND SESSIONS JUDGE AT MAYO HALL, BENGALURU (CCH-20) (ANNEXURE-A).
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the defendants in an ejectment suit which is now converted into the one for decree of declaration is invoking the writ jurisdiction of this Court for assailing the subject orders made by the learned trial judge whereby respondents’ applications for amendment of the pleadings having been favoured, they are permitted to amend the suit. 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 is not inclined to grant indulgence in the matter because:
(a) the impugned order dated 28.07.2018 whereby the leave to amend the plaint has been made at the pre trial stage; such amendment cannot be challenged without showing the prejudice;; the impugned order permitting second amendment vide dated 18.07.2019 in W.P.No.35968/2019 is more in the nature of a corollary consequence to the amendment being sanctioned; it is a settled position of law that ordinarily the amendment for incorporating the consequences resulting from earlier amendment are as a matter of course to be allowed subject to all just exceptions into which case of the petitioner does not fit;
(b) the reliance of the learned counsel for the petitioners on the following decisions does not come to their aid:
(i) AIR 2019 SC 94 (M REVANNA V. ANJAMMA (DEAD) BY L.Rs. AND ORS.) PARA 5;
(ii) 2009(10) SCC 84 (RAJUVEETA BUILDERS AND DEVELOPERS VS. NARAYANASWAMY AND SONS AND ORS.) PARAs 67 & 29;
(iii) AIR 2008 SC 2134 (BHARAT KARSONDAS THAKKAR V. KIRAN CONSTRUCTION CO AND ORS.) PARA 22;
(iv) ILR 2017 6 HP 546 (JAI MATA NAINA DEVI FILLING STATION V. BHARAT PETROEUM CORP LTD AND OTHERS) PARA 11;
(v) 2012 167 PLR 492 (MAHANT KAPIL DEV V. PRAKASH WATI AND OTHERS), PARA 18; and, (vi) 2014 (6) ABR 124, (FGP LIMITED V.
SALEH HOOSEINI DOCTOR), PARA 12 the fact matrix in each of these rulings is much different from the one in these writ petitions;
(c) the contention that the amendment would change the nature of the suit proceedings may be true, but it is insufficient to lay a challenge thereto inasmuch as any amendments of this kind ordinarily result into some change of nature of the proceedings; the undesirable changes are those that would materially affect the other side; that is not the case here; and, (d) the amendment in the special circumstances cannot be challenged is true as rightly contented by the counsel for the respondents; however such amendment should not be free of costs since some prejudice has been caused to petitioner side and therefore the same can be set at right by awarding some reasonable costs;
In the above circumstances, although this Court declines to grant indulgence in the matter, each of the respondents is directed to pay a cost of Rs.2,000/- to the petitioner – defendant on the next date of hearing of the suit or within one month, whichever is later failing which the impugned orders shall be deemed to have been set at naught.
It is needless to mention that the observations contained in the impugned orders will not in any way prejudice the contentions to be taken up by the parties, otherwise.
Sd/- JUDGE Bsv