IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.35542/2014(GM-CPC) 1. SRI K.N.MUNIRAJU S/O LATE NARAYANAPPA AGED ABOUT 58 YEARS, 2. SRI. N. VENKATASWAMY S/O LATE NARAYANAPPA AGED ABOUT 53 YEARS, 3. N. RAMESH S/O LATE NARAYANAPPA, AGED ABOUT 41 YEARS, PETITIONER 1 TO 3 ARE RESIDING AT KAIKONDARAHALLI, VARTHUR HOBLI, BANGALORE SOUTH TALUK.
(BY SRI S. SHEKAR SHETTY, ADVOCATE) AND:
1. SRI.K.P.CHAMPAKADHAMSWAMY S/O LATE K. S. PUTTASWAMY AGED ABOUT 53 YEARS, HON. SECRETARY, ... PETITIONERS M/S THE KARNATAKA ELECTRICAL BOARD EMPLOYEES CO-OPERATIVE SOCIETY LTD., NEAR ANANDRAO CIRCLE, BANGALORE-560 009.
2. SRI. SANJAY RAJ C.D., S/O DEVARAJ C.D AGED ABOUT 38 YEARS, RESIDING AT NO.4, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560 046.
3. THE SECRETARY NOW CALLED AS EXECUTIVE DIRECTOR K.P.T.C.L. EMPLOYEES CO-OP.
SOCIETY LIMITED, ANAND RAO CIRCLE, BANGALORE-560 009.
REPRESENTED BY SRI. M.G. NARAYANASWAMY.
... RESPONDENTS (BY SRI H. K. SRINIVASA, ADVOCATE FOR R2;
R1 AND R3 ARE SERVED BUT UNREPRESENTED) … THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.6.2014, PASSED BY THE XXXIX ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY ON IA.[DATED 9.4.14] FILED BY THE R1 UNDER ORDER VI RULE 17 OF THE CPC., IN OS.NO.8720/05, VIDE ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present writ petition is filed by the plaintiffs against the order dated 16.6.2014 passed on I.A. in O.S.8720/2005 on the file of the XXXIX Additional City Civil Judge, Bangalore City allowing the application filed by the 1st defendant-respondent No.1 to amend the plaint thereby permitting the 1st defendant to carry out the proposed amendment of the cause title to the plaint as prayed for in the application.
2. The present petitioners-plaintiffs filed a suit for a declaration against the respondents-defendants to declare that the Sale Deed dated 16.12.2013 executed by defendant No.1-respondent No.1 in favour of 2nd defendant-2nd respondent as null and void and not binding on them and for permanent injunction contending that they are the owners of the properties in question.
3. The defendants filed their written statement denying the plaint averments and contended that the suit filed by the plaintiffs is not maintainable, etc., and sought for dismissal of the suit. When the matter was posted for plaintiffs’ evidence, at that stage, defendant No.1 filed an application under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure seeking permission for amendment of cause title to the plaint by incorporating the Present President of the 1st defendant instead of Secretary/Executive Director reiterating the averments made in the written statement.
4. The said application was resisted by the plaintiffs by filing the objections and contended that the defendant No.1 is representing in personal capacity and he is not a party to the suit either as President or Secretary of KPTCL Employees Co-operative Society Limited. Hence, the application was not maintainable. The trial Court considering the application and objections, by the impugned order dated 16.6.2014 allowed the application permitting defendant No.1 to carryout the amendment to the cause title to the plaint as prayed for in the application. Against the said order, the present writ petition is filed by the plaintiffs.
5. I have heard the learned Counsel for the parties to the lis.
6. Sri S. Shekar Shetty, learned Counsel for the petitioners-plaintiffs contended that the very application filed by the 1st defendant-respondent No.1 for amendment of the cause title to the plaint is not maintainable in view of the provisions of Order VI Rule 17 of the Code of Civil Procedure. Inspite of the objections filed by the plaintiffs, the trial Court erroneously has allowed the application which is impermissible. Therefore, he sought to allow the writ petition.
7. Per contra, Sri H.K. Srinivasa, learned Counsel appearing for respondent No. 2 sought to justify the impugned order.
8. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiffs filed a suit for a declaration to declare that the Sale Deed dated 15.12.2003 is not binding on them and for permanent injunction. The same was disputed by the defendants by filing the written statement.
9. If there is any defect in the plaint either in the cause title or in the pleadings, it is only the plaintiff, who has to file for an amendment and not the defendant. Hence, the defendant cannot file an application for amendment of the cause title to the plaint and utmost he can take a defense that proper party is not included. The defendant instead of filing an application for amendment of the cause title to the plaint, he could have taken the defense in the written statement that in the absence of proper and necessary party or non-joinder of necessary party, the suit is not maintainable and the trial Court has erroneously proceeded to allow the application.
10. A careful reading of the provisions of Order VI Rule 17 of the Code of Civil Procedure clearly depicts that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties, provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.
11. In view of the wordings depicted in Order VI Rule 17 of the Code of Civil Procedure, the plaintiffs if want to amend the original suit, they can file an application and the 1st defendant can file an application for amendment of the written statement. The provisions of Order VI Rule 17 of the Code of Civil Procedure does not permit the 1st defendant to file an application for amendment of cause title to the plaint for making proper and necessary party and the plaintiffs cannot file an application for amendment of the written statement.
12. In view of the above, the impugned order passed by the trial Court allowing the application to amend the plaint at the instance of defendant No.1- respondent No.1 is contrary to the intention of the Legislature while enacting the provisions of Order VI Rule 17 of the Code of Civil Procedure and therefore, the impugned order is not sustainable in law.
13. For the reasons stated above, writ petition allowed. The impugned order dated 16.6.2014 made on I.A. filed by the 1st respondent-1st defendant under Order VI Rule 17 of the Code of Civil Procedure in O.S.No.8720/2005 by the XXXIX Additional City Civil Judge, Bangalore City is hereby quashed and the said application filed by the 1st defendant-respondent No.1 for amendment of cause title to the plaint is rejected.
14. However, it is always open for the 1st defendant-respondent No.1 to urge all the contentions available in accordance with law before the trial Court with regard to amendment to the cause title of the plaint as well as the averments in the plaint in accordance with law.
Sd/- Judge Nsu/-