IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION No.908/2017 (GM-CPC) BETWEEN:
Sri M. Sampangi S/o Late Muniswamappa, Aged about 61 years, R/at Menasiganahalli village, Kasaba Hobli, Anekal Taluk, Bengaluru Urban District-562 106. …Petitioner (By Sri Shankar Murthy for Sri Rasheed Khan, Advocate) AND:
1. Sri Rajendra S/o Late Pandmavathi, Aged about 54 years, 2. Padmavathi W/o Late Rajendra, Aged about 44 years, Respondent No.1 & 2 are R/at Mensiganahalli Village, Kasaba Hobli, Anekal Taluk, Bengaluru Urban District-562 106.
3. Sri Krishnappa S/o Late Muniyappa, Aged about 54 years, R/at Maranayakanahalli Village, Kasaba Hobli, Anekal Taluk, Bengaluru Urban District-562 106.
4. Sri Mallesh S/o Late Yellamma, Aged about 49 years, R/at Kalakondanahalli village, Huliranahalli Tharapu, Denkanikote Taluk, Krishnagiri District-653 113. …Respondents (By Sri Fayaz Sab B.G. Advocate for R1 & R2, R3-served, unrepresented) This writ petition is filed under Article 227 of the Constitution of India, praying to set aside the order dated 11.11.2016 passed by the Principal Civil Judge (Jr.Dn) and JMFC., at Anekal in O.S.No.427/2008 vide Annexure-D.
This writ petition coming on for orders this day, the court made the following:
O R D E R Heard Sri Shankara Murthy, for Sri Rasheed Khan, learned counsel appearing for petitioner and Sri Fayaz Sab B.G., learned counsel appearing for respondent Nos.1 and 2. Perused records.
2. Petitioner herein instituted a suit for perpetual injunction in OS No.427/2008 against respondents/defendants on 30.07.2008. On service of suit summons, defendants appeared and filed their written statement on 17.09.2008, where-under they have claimed title to the suit schedule property. This necessitated the plaintiff to seek for amendment of plaint, by seeking additional prayer, namely to declare that he is the absolute owner of the suit schedule property and being in lawful possession of the same. Said application came to be filed on 09.08.2010. Trial Court by impugned order has rejected the same on the ground of delay as it is filed after a lapse of two years. Pleadings of the parties would disclose that on the one hand plaintiff is asserting that he is the absolute owner and in lawful possession of the suit schedule property and on the other hand defendants are claiming title to the suit schedule property. The prayer sought for by the plaintiff to declare him to be the absolute owner of suit schedule property would clearly indicate that it is a comprehensive relief, which has been sought for by the plaintiff and it would also encompass the adjudication of defendants’ title, if any, to the suit schedule property. As such, trial Court was not justified in rejecting the application only on the ground of delay.
3. Proviso to Rule 17 of Order VI of Code of Civil Procedure would indicate that pre-trial amendment would be allowed as a matter of course. However, post trial amendment would be allowed only in the event of ingredients specified under the proviso to Rule 17 of Order VI is satisfied or in other words, if such amendment would not workout injustice to other side and/or take away the valuable right that may have accrued to otherside or such claim being time barred.
4. In the instant case, plaintiff having sought for declaration of his title within two years from the date of written statement having been filed by the defendants, they cannot be heard to contend that claim of the plaintiff was time barred. However, delay in filing said application can be condoned by compensating the defendants by awarding reasonable costs. Hence, this Court is of the view that trial Court was not justified in dismissing the application for amendment of plaint.
Hence, I proceed to pass the following:
O R D E R (i) Writ Petition is hereby allowed.
(ii) Order dated 11.11.2016 - Annexure-D is hereby set-aside. IA No.IV filed by the plaintiff under Order VI Rule 17 of CPC is hereby allowed on payment of cost of Rs.1,000/- payable by plaintiff to defendants.
(iii) Plaintiff shall carryout amendment to the plaint on the next date of hearing before the trial Court and defendants would be at liberty to file additional written statement, if any.
Ordered accordingly.
SD/- JUDGE UN/KMV