IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.46462/2017(GM-CPC) SRI NARAYANA SWAMY S/O N. KRISHNAPPA, AGE: 44 YEARS, R/O 553/14A, I B CROSS SRI VENKATESHWARA LAYOUT MAHADEVAPURA, BENGALURU-48.
... PETITIONER (BY SRI CHANDRASHEKHAR C. CHANASPUR, ADVOCATE) AND:
SRI SOMANCHI UMA MAHESHWARA RAO S/O SRI SOMANCHI KRISHNAMURTHY AGE: 47 YEARS, R/O 8614 ARGENTINE WAY PLANO, TEXAS-75024 USA.
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER HIS MRS. SRIRANGAM RADHA RAMANI, W/O DR. S. V. G. KRISHNA SASTRY, FLAT NO.14061, BLOCK 14, TIMARU, PRESTIGE WELLINGTON PARK APARTMENTS NEAR GANGAMMA CIRCLE, IAF MAIN ROAD, JALAHALLI, BENGALURU-560013.
... RESPONDENT (BY SMT. VAISHALI HEGDE, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.9.2017 ON I.A.NO.4 PASSED BY THE XXXV ADDITIONAL CITY CIVIL JUDGE IN O.S.NO.6383/2013 VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant has filed the present writ petition against the order dated 13.9.2017 passed on I.A.4 in O.S.No.6383/2013 by the Learned XXXV Additional City Civil Judge allowing the application filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint.
2. The plaintiff filed a suit for possession and mesne profits contending that he is owner of the of the suit schedule property and hence, he is entitled for the same which was disputed by the defendant by filing written statement. When the matter was posted for framing of issues, at that stage, the plaintiff filed an application for amendment of plaint in para-4 at second line by adding “after the trespass, to an extent of 721 sq.feet which is clearly delineated and narrated in schedule ‘B’ attached to this plaint” and to add schedule ‘B’ after the schedule that “ All the piece and parcel of the eastern side of the schedule property measuring East to West:- 13.8 feet on the northen side and East to West 17 feet on the Southern side and North to South 40 feet, totally measuring 721 sq. feet” and to add prayer 1(B) i.e, “direct the defendant to demolish the building illegally constructed on the Schedule B Property” reiterating the averments made in the plaint. The said application was opposed by the defendant.
3. The trial Court proceeded to allow the application holding that the parties have been heard I.A.4 and perused the record. It also observed that if the proposed amendment is allowed, it would not change the nature of the cause of action of the suit and so also not barred by the time. Aggrieved by the said order, the present writ petition is filed by the defendant.
4. Sri Chandrashekar C. Chanaspur, learned Counsel for the petitioner-defendant contended that the impugned order passed by the trial Court is not a speaking order and cannot be sustained since the learned Judge has not at all considered the objections filed by the defendant to the application for amendment. Therefore, he sought to allow the writ petition.
5. Per contra, Smt. Vaishali Hegde, learned Counsel for the respondent-plaintiff sought to justify the impugned order and contended that before commencement of the trial, the application is filed for amendment only for incorporating certain boundaries and measurement and will no way affect the case of the defendant. The learned Judge ought to have given reasons for allowing the application. Mere not giving reasons cannot be a ground to allow the writ petition. Therefore, she sought to dismiss the writ petition.
6. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiff filed a suit for possession and mesne profits contending that he is the owner and in possession of the suit schedule properties. The same was disputed by the defendant by filing the written statement. When the application was filed by the plaintiff for amendment of certain boundaries and measurements, the same was opposed by the defendant. In all fairness, the trial Court ought to have passed reasoned order and on that ground alone, the impugned order is not a speaking order and it cannot be sustained.
7. For the reasons stated above, writ petition is allowed. The impugned order dated 13.9.2017 passed on I.A.4 in O.S.No.6383/2013 by the XXXV Additional City Civil Judge, Bengaluru allowing the application for amendment of the plaint is hereby quashed. The trial Court is directed to reconsider the application – I.A.4 and pass appropriate reasoned order, after hearing both the parties on the next date of hearing i.e., on 23.4.2019 in accordance with law.
Sd/- Judge Nsu/-