IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.36020 OF 2017 (GM-CPC) BETWEEN:
Sri. Anjana Murthy S/o Late Munilingappa Aged about 44 years R/o Channasandra Village Uttarahalli Hobli Subramanyapura Post Bangalore South Bangalore – 560060.
(By Sri. Mohan Kumar T. Advocate) AND:
1. Sri R Manju S/o Raju Aged about 45 years R/at No.1267 2nd Cross, 12th Main Raghavendra Block Srinagara Bengaluru-560050 2. Sri Doddalingappa S/o Muniyappa Aged about 68 years ... PETITIONER 3. Sri Hanumanthappa S/o Muniyappa Aged about 66 years 4. Sri Annayappa S/o Muniyappa Aged about 60 years 5. Sri Shivalingappa S/o Muniyappa Aged about 56 years 6. Sri Muniraju S/o Munilingappa Major 7. Sri Muniyappa S/o Munilingappa Aged about 70 years 8. Sri Muniswamy S/o Nanjappa Aged about 63 years 9. Sri Hanumanthappa S/o Nanjappa Aged about 44 years 10. Sri.Prakash S/o Nanjappa Major 11. Sri.Ramaiah S/o Huchappa Aged about 56 years All are R/o Channasandra Village Uttarahalli Hobli Subramanyapura Post Bangalore South Bangalore - 560060 …RESPONDENTS This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order dated 13.03.2017 on I.A.No.7 passed by the XVII Addl. City Civil and Sessions Judge, Bangalore (CCH-16) in O.S.No.3794/2008 vide Annexure-E by allowing the above W.P. and etc.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER The 8th defendant filed the present Writ Petition against the order dated 13th March 2017 on I.A.No.7 made in O.S.No.3794/2008 allowing the application filed by the plaintiff under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure to amend the plaint.
2. In a suit for declaration and permanent injunction, the plaintiff filed an application under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure to amend the plaint and to insert the facts at Para 13(a) and Prayer as (bb) to restore the suit property in the original manner by demolishing illegal construction of compound wall put up over the middle of the suit property.
3. The said application was opposed by the 8th defendant-the present petitioner by filing objections and contended that the very amendment is highly belated and liable to be rejected. He further contended that the defendants have not violated any interim order and not put up any construction as alleged. Therefore, the application seeking for amendment of the plaint is not maintainable and liable to be dismissed.
4. The trial Court considering the application and objections by the impugned order dated 13.03.2017 allowed I.A.No.7 filed under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure. Hence, the present Writ Petition by the 8th defendant.
5. I have heard the learned counsel for the petitioner.
6. Sri.Mohan Kumar T., the learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court allowing the application for amendment of plaint is erroneous and contrary to material on record. He further contended that initially the suit was only for permanent injunction and later, it was converted into declaration. Subsequently, the application is filed for demolition of alleged construction put up by the defendant even though the defendant denied any construction put up and now, in view of application for amendment of plaint is filed, the plaintiff is seeking additional prayer to restore the suit schedule property in the original stage. He further contended that the present application for amendment is filed after commencement of the trial which is impermissible in view of proviso to Order 6 Rule 17 of Code of Civil Procedure. Therefore, he sought to quash the impugned order by allowing the present Writ Petition.
7. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiff filed a suit for declaration and permanent injunction in respect of suit schedule property contending that he is the absolute owner in peaceful possession and enjoyment of the suit schedule property. The same was disputed by the respondents-defendants by filing objections, including the present petitioner. It was contended that the plaintiff is not the owner and not in possession of the suit schedule property. Hence, he is not entitled for the relief sought for. During the pendency of the proceedings, the plaintiff filed an application to amend the plaint averments contending that how the defendants encroached the suit schedule property and constructed the compound wall illegally unauthorisedly and also prayed to restore the suit schedule property in the original stage by demolishing illegally construction of compound wall. The same was opposed by the respondents.
8. The trial Court allowed the application on the ground that amendment sought for by the plaintiff is on the basis of subsequent event. The trial Court considering the several judgments relied upon by the defendants proceeded to hold that whether defendants have put up any construction of compound wall is a matter to be decided during the trial. The trial Court also held that the defendants are always at liberty to file additional written statement.
9. According to the defendants, they never constructed any compound wall illegally. Whether defendants have constructed the compound wall during the pendency of the suit is a matter to be decided in the trial of the suit. Ultimately, it is for the plaintiff to establish that he is the owner and in possession of the suit schedule property and it is for him to prove that the defendants have trespassed into the suit schedule property and constructed the compound wall. It is only after full-fledged trial, the true facts can be ascertained. Mere allowing the application for amendment will not take away or prejudice the rights of the defendants and the same will not change the nature of the suit. Ultimately, it is for the plaintiff to prove the declaration, injunction and alleged construction of compound wall during the pendency of the suit based on oral and documentary evidence. Mere amendment of subsequent facts will no way prejudice the rights of the defendants and the same has to be proved by the plaintiff by adducing oral and documentary evidence. As held by the trial Court, it is always open for the defendants to file additional written statement. If the amendment is refused, it will lead to multiplicity of litigation. Hence, the impugned order passed by the trial Court is just and proper.
10. For the reasons stated above, the impugned order passed by the trial Court allowing the application filed by the plaintiff under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure is justified. The same is in accordance with law. The petitioner has not made out any ground to interfere in the impugned order by exercising powers under Article 227 of the Constitution of India. Accordingly, the Writ Petition is dismissed.
However, it is made clear that it is open for the defendants to file additional written statement, as observed by the trial Court.
Sd/-
JUDGE Prs*