IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION NO.10598/2019 (GM-CPC) BETWEEN SMT SHAKUNTHALA W/O. M ASHOK KUMAR, AGED ABOUT 57 YEARS R/AT NO. 85, KH ROAD, BENGALURU - 560001.
REP BY POWER OF ATTORNEY HOLDER, N. UMESH YADAV, S/O J N NARASHIMALU, AGE 35 YEARS, NO. 48/2-1, SAI NILAYA, 24TH-B-CROSS, K R ROAD, KARASANDRA, BANASHANKARI 2ND STAGE, BENGALURU - 560070 (BY SRI S K ACHARYA, ADV.) AND:
1. MUNI REDDY S/O. LATE. KRISHNAPPA, AGED ABOUT 56 YEARS 2. GOPALA REDDY S/O. LATE KRISHNAPPA AGED 54 YEARS ALL ARE R/AT NO.46/2, INDUSTRIAL AREA, ... PETITIONER GARVEBHAVI PALYA VILLAGE, 7TH MILE, HOSUR MAIN ROAD, BEGUR HOBLI, NEXT TO PAR FASHION GEAR GARMENTS, BENGALURU - 560068 ... RESPONDENTS (BY SRI M S VARADARAJAN AND SRI SANTHOSH, ADVS.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.11.2018 PASSED IN I.A.NO.VII IN O.S.NO.1130/2014 ON THE FILE OF THE COURT OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, VIDE ANNEXURE-A ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner - plaintiff in O.S.No.1130/2014 has invoked writ jurisdiction of this Court assailing the order dated 29.11.2018 made by the learned trial Judge whereby, her application in IA No.17 for leave to amend the plaint for converting the present suit for a decree of bare injunction into the one for declaration and permanent injunction, has been rejected.
2. After service of notice respondent - defendants have entered appearance through their counsel who opposes the writ petition.
3. Learned counsel for the petitioner - plaintiff contends that the reasons assigned by the Court below for rejecting the application for amendment of the pleadings are legally unsustainable; there is no due consideration of the grounds taken up in the said application which is supported by her affidavit; ordinarily the trial Courts should be liberal in considering the application for amendment especially when no prejudice would be caused to the other side, if such amendment is allowed; the assigned reason for not allowing the amendment that converting the suit from one for a decree of permanent injunction to the one for declaration and injunction would result in material change of the proceedings may not be correct.
4. Per contra, learned counsel appearing for the respondent - defendants vehemently contends that the respondents had in their Written Statement, specifically denied the title of the petitioner – plaintiff to the suit property & the petitioner has not availed the earliest opportunity of seeking amendment of her pleadings; she having gone on with the trial & completed her side of evidence could not have staked the application for amendment only when the evidence of the defendants’ side had begun.
5. Learned counsel for the respondent further submits that the amendment now sought for belatedly is only an ill design to protract the suit proceedings indefinitely and therefore, the application is rightly rejected by the trial court to prevent the abuse of process of law. Lastly, he submits that no prejudice will be caused to the petitioner by the impugned order denying leave for amendment of plaint inasmuch as, it is open to her to constitute a comprehensive suit for the reliefs now sought to be introduced in the suit by amending the pleadings.
6. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the petition papers.
7. The suit of the year 2014 having been resisted by the Written Statement filed on 27.06.014 inter alia with the denial of title is at the trial stage when the application for amendment is filed, is undisputed. The petitioner in her affidavit supporting the application has explained the reason for the delayed prayer for amendment; her counsel did not his job and even the interim protection granted at earlier stage was also not got extended because of laxity and eventually she shifted her brief to the other counsel. Such things are not very uncommon now a days. Although this Court does not cast any aspersion on any counsel, the explanation offered for the delay in seeking leave for amendment appears to be plausible.
8. The reason assigned by the trial Court for denying leave for amendment of pleadings that the same would change the nature of suit proceedings may not per se constitute a sufficient ground inasmuch as any amendment of pleadings ordinarily result into some change; whether such a change of the nature of the proceedings would cause prejudice which the other side cannot overcome by filing Additional Written Statement has not been adverted to. In the considered opinion of this Court, no prejudice will be caused to the respondent side by the conversion of bare injunction suit into the one for declaration of title and permanent injunction inasmuch as after the amendment of plaint, the other side will have an opportunity /right of filing its additional pleadings.
9. True it is, that the application for amendment being allowed at a belated stage would cause some hardship to the other side; however there is no hardship which cannot be compensated by award of costs. Taking into consideration all the relevant factors, a cost of Rs.10,000/- payable by the petitioner to the respondent Nos. 1 & 2 herein would do justice to them.
10. In the above special circumstances, this writ petition succeeds; the impugned order is set aside; the petitioner’s application in IA No.7 filed under Order VI Rule 17 of CPC, 1908 is favoured and leave is granted for amending the plaint as sought for; petitioner to file the amended plaint within four weeks, whereupon the respondents may chose to file their Additional Written Statement.
On the next date of hearing of the suit, petitioner shall pay a sum of Rs.10,000/- to the respondent Nos. 1 and 2 herein failing which, the impugned order stands resurrected.
Sd/- JUDGE nvj