IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.14966 OF 2015 (GM-CPC) BETWEEN:
RANGAPPA S/O LATE LAKKI KARIYAPPA AGED ABOUT 86 YEARS R/O. # 2365, CH-9 1ST MAIN ROAD, K.G. KOPPAL MYSORE-570 009.
(By Mr. NATARAJU T, ADV., FOR Mr. V.N. MADHAVA REDDY, ADV.,) AND:
1. SMT. PARVATHAMMA W/O LATE KARIYAPPA AGED ABOUT 56 YEARS.
2. K. CHANDRU S/O LATE KARIYAPPA AGED ABOUT 34 YEARS BOTH ARE R/AT NO.233, 5TH CROSS THONACHI KOPPAL, MYSORE-570 009.
3. PANKAJA W/O SRINIVAS AGED ABOUT 33 YEARS NO.2337/1, 5TH CROSS 1ST MAIN, K.G. KOPPAL MYSORE-570 009.
4. SMT. SHIVAMMA W/O RANGAPPA AGED ABOUT 66 YEARS.
… PETITIONER 5. KUMARA S/O RANGAPPA AGED ABOUT 39 YEARS.
6. RAVI S/O RANGAPPA AGED ABOUT 36 YEARS.
RESPONDENTS 4 TO 6 ARE R/O # 2365, CH-9 1ST MAIN ROAD, K.G. KOPPAL MYSORE-570 009.
… RESPONDENTS (By Mr. SUMANTH L. BHARADWAJ, ADV., FOR R1 (ABSENT) V/O 23-04-2015 NOTICE TO R4 TO R6 D/W R3 – SERVED UNREPRESENTED V/O DATED 19-09-2016 SERVICE OF NOTICE TO R2 HELD SUFFICIENT) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE AN ORDER OR DIRECTION IN THE NATURE OF WRIT OF MANDAMUS TO THE TRIAL COURT TO ALLOW THE APPLICATION I.A.5 IN O.S. NO.1271/12 DATED 30.1.2015 BEFORE THE III ADDL. FIRST CIVIL JUDGE (JR.DN.) MYSORE VIDE ANN-F AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Nataraju T. for Mr.V.N.Madhava Reddy, learned counsel for the petitioner.
None for the respondents.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 30.01.2015 passed by the Trial Court by which application filed by the petitioner under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) has been rejected.
4. I have heard the learned counsel for the petitioner and have perused the record. From perusal of the record, it is evident that the plaintiff has filed a suit seeking the relief of permanent injunction. After the plaintiff has adduced the evidence in the form of examination-in-chief of his witnesses and before cross- examination of his witnesses, the petitioner filed an application for amendment seeking to change the measurement of the suit property. However, the aforesaid application has been rejected on the ground that the facts pleaded in the application of amendment was well within his knowledge. In the considered opinion of this court, the Trial Court while passing the impugned order has taken a hyper technical view of the matter. In the amendment, which is necessary for a fair and complete adjudication of the controversy involved in the suit normally has to be allowed.
5. In the instant case, the witnesses of the plaintiff were yet to be examined, but the plaintiff had filed an application for amendment seeking to change the measurement of the suit property. The aforesaid amendment by no stretch of imagination either changes the nature of the suit or would have caused irreparable injury to the respondents. In case, the proposed amendment is allowed, the respondents would have been at liberty to file an application for consequential amendment. Therefore, in order to effectively resolve the controversy in the suit, the proposed amendment was necessary. However, the aforesaid aspect of the matter has not been appreciated by the Trial Court. The impugned order therefore suffers from jurisdictional infirmity as well as an error apparent on the face of the record warranting interference of this Court in exercise of its powers under Article 227 of the Constitution of India. Accordingly, the impugned order is quashed and set aside. The application for amendment filed by the petitioner is allowed. Needless to state that the defendants are at liberty to file an application seeking consequential amendment. The Trial Court after giving an opportunity to the defendants to amend their pleading shall proceed to deal with the suit expeditiously.
Accordingly, the petition is disposed of.
Sd/- JUDGE SS