IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.54846/2017(GM-CPC) BETWEEN:
SRI. R. RAMAKRISHNE GOWDA SON OF LATE C. M. RAMAIAH, AGED ABOUT 68 YEARS, RESIDING AT DALASANUR VILLAGE AND POST, SRINIVASAPURA TALUK, KOLAR DISTRICT, KARNATAKA-563 126.
... PETITIONER (BY SRI ABHINAY Y. T., ADVOCATE) AND:
1. SRI. SRINIVAS SON OF LATE GATHI VENKATAPPA, AGED ABOUT 32 YEARS, 2. SRI. GOWNAPALLI VENKATAPPA SON OF LATE MUNISHAMI BHOVI, AGED ABOUT 82 YEARS, 3. SRI. NARAYANAPALLI VENKATESHAMI SON OF LATE VENKATAPPA, AGED ABOUT 62 YEARS, 4. SRI. MUNIYAPPA SON OF LATE MUNISHAMI BHOVI, AGED ABOUT 64 YEARS, 5. SRI. VENKATASHAMI SON OF SARAYI VENKATAPPA, AGED ABOUT 54 YEARS, 6. SRI. VENKATASHAMI SON OF LATE MUNISHAMI BHOVI, AGED ABOUT 67 YEARS, 7. SRI. VENKATESHAPPA SON OF LATE SHETTAPPA, AGED ABOUT 57 YEARS, 8. SMT. VENKATAMMA WIFE OF LATE RAMANA BHOVI, AGED ABOUT 87 YEARS, 9. SRI. VENKATASHAMI SON OF LATE GATHE VENKATAPPA, AGED ABOUT 52 YEARS, 10. SMT. YALLAMMA WIFE OF YARRAPPA, AGED ABOUT 58 YEARS, SINCE DECEASED REP. BY LRS 10(a) VENKATAPPA SON OF YARAPPA AGED ABOUT 45 YEARS, 10(b) SREENIVAS SON OF YARAPPA AGED ABOUT 40 YEARS, 10(c) VENKATESH SON OF YARAPPA AGED ABOUT 38 YEARS, ALL ARE RESIDING AT KONETI THIMMAHALLI VILLAGE, DALASUR POST, SRINIVASAPURA TALUK, KOLAR DISTRICT-563126.
11. SRI. SRINIVAS SON OF VENKATESHAPPA, AGED ABOUT 37 YEARS, ALL ARE RESIDING AT KONETI THIMMANAHALLI VILLAGE, DALASANUR POST, SRINIVASAPURA TALUK, KOLAR DISTRICT, KARNATAKA-563 126.
12. SRI. VENKATAPPA SON OF VENKATESHAPPA, AGED ABOUT 47 YEARS, 13. SMT. MUNISHAMI SON OF VENKATESHAPPA, AGED ABOUT 44 YEARS, 14. SRI. CHIKKAVENKATASWAMY SON OF VENKATESHAPPA, AGED ABOUT 42 YEARS, 15. SRI. VENKATESHAPPA SON OF LATE GATHI VENKATAPPA, AGED ABOUT 44 YEARS, 16. SRI. GURAPPA SON OF LATE MUNIVEERAPPA, AGED ABOUT 39 YEARS, RESPONDENT 12 TO 16 ARE RESIDING AT KONETHIMMANAHALLI VILLAGE, DALASANUR POST, SRINIVASAPURA TALUK, KOLAR, KARNATAKA-563 126.
... RESPONDENTS (BY SRI K. SEENAPPA, ADVOCATE FOR R1-R9 & R11-R16 & R10(a) TO R10(c)) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.11.2017, PASSED ON IA NO.5 IN OS NO.112 OF 2014 BY THE ADDITIONAL CIVIL JUDGE & JMFC AT SRINIVASAPUR (ANNEXURE-F) AND CONSEQUENTIALLY ALLOW IA NO.5.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner - plaintiff filed the present writ petition against the order dated 10.11.2017 on I.A. No.5 made in O.S. NO.112/2014 on the file of the Additional Civil Judge & JMFC, Srinivasapura, rejecting the application filed by the plaintiff under Order 6 Rule 17 r/w Section 151 of the Code of Civil Procedure.
2. The plaintiff filed the suit for declaration and possession in respect of the suit schedule property, morefully described in the schedule to the plaint contending that the plaintiff is the owner of the property and the defendants are in unauthorized possession of the same. The defendants filed the written statement and denied the averments made in the plaint and contended that the defendants are in possession and enjoyment of the suit schedule property for more than 30 years and the suit filed by the plaintiff is not maintainable and therefore sought for dismissal of the suit.
3. When the matter was posted for the plaintiff’s evidence, at that stage, the plaintiff filed an application under Order 6 Rule 17 r/w Section 151 of the Code of Civil Procedure for deletion of paragraphs 4 and 5 and in its place to include amended paragraphs 4 and 5 relating to details/particulars of Sy.No.19, contending that the plaintiff is uneducated and not having worldly knowledge and due to his illiteracy, he has wrongly furnished the documents which belong to Sy.No.1 of the same village instead of the documents of the suit schedule property. Thereafter he came to know that it was a mistake and therefore he has filed the present application to incorporate the details/particulars relating to the suit schedule property i.e,. Sy.No.19 situated at Koneti Thimmanahalli village, Srinivasapura taluk, Kolar district etc., The said application was opposed by the defendants and contended that the very application is not maintainable and liable to be dismissed.
4. The trial Court considering the application and the objections by the impugned order dated 10.11.2017 rejected the application filed by the plaintiff for amendment of the plaint on the ground that the plaintiff has not satisfied the Court that inspite of his due diligence, the matter for amendment cannot be raised before commencement of the trial. Hence the present writ petition is filed for the reliefs sought for.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Abhinay Y.T., learned counsel for the petitioner – plaintiff contended that the impugned order passed by the trial Court rejecting the application for amendment of the plaint, is erroneous and contrary to the material on record. He would further contend that at the time of filing the suit, the plaintiff has wrongly furnished the documents pertaining to Sy.No.1 instead of the documents pertaining to the suit schedule property i.e, Sy.No.19 and therefore he has filed the present application for amendment to delete paragraphs 4 and 5 and to incorporate new paragraphs 4 and 5 relating to details/particulars of Sy.No.19 and therefore he sought to allow the application for amendment. Mere allowing the application for amendment would not prejudice the case of the defendants. The trial Court proceeded to reject the said application erroneously. He would further contend that in the schedule to the plaint, it is correctly mentioned as Sy.No.19 and at paragraphs 4 and 5 of the plaint, the plaintiff wants to incorporate the details relating to the suit schedule property i.e., Sy.No.19. Hence the trial Court ought to have allowed the application in order to do substantial justice between the parties to the lis. Therefore he sought to allow the writ petition.
7. Per contra, Sri K. Seenappa, learned counsel for the respondents sought to justify the impugned order and contended that the before filing the suit, it is the duty of the plaintiff to verify the records and proceed to file a suit in a proper perspective. By way of amendment, the plaintiff wants to change the very nature of the property in question. He would further contend that the application filed is only an after thought and nothing but to drag on the proceedings and to harass the defendants and therefore he sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed the suit for declaration of title on the basis of the palupatti dated 6.3.1997 and to direct the defendants to hand over the vacant physical possession of the suit schedule property and for Permanent Injunction against the defendants from alienating or encumbering the suit schedule property, raising various contentions. The defendants filed the written statement and denied the plaint averments and contended that they are in possession of the suit schedule property for more than 30 years adverse to the interest of the plaintiff and sought for dismissal of the suit.
9. When the matter was posted for evidence, at that stage, the present application came to be filed by the plaintiff for amendment of the plaint to delete paragraphs 4 and 5 and to incorporate new paragraphs 4 and 5 relating to the details/particulars of suit schedule property i.e, Sy.No.19 situated at Koneti Thimmanahalli village, Srinivasapura taluk, Kolar district. On careful perusal of the plaint, it clearly discloses that the plaint schedule property is Sy.No.19 situated at Koneti Thimmanahalli village, Srinivasapura taluk, Kolar district, measuring 1 acre 27 guntas, morefully described in schedule to the plaint. By way of amendment, the plaintiff wants to delete the existing paragraphs 4 and 5 in the plaint and to incorporate new paragraphs 4 and 5 giving the details/particulars of suit schedule property i.e, Sy.No.19. The amendment sought is only clarificatory in nature. In view of the objection raised by the defendants, the trial Court proceeded to dismiss the application mainly on the basis that the plaintiff was not diligent and if the amendment is allowed, the nature of the suit will be altered and change the cause of action and the same is not permissible. Accordingly rejected the application filed by the plaintiff for amendment of the plaint.
10. The specific case of the plaintiff is that he is the owner of the suit schedule property morefully described in the schedule i.e., Sy.No.19 and at the time of filing the suit, the plaintiff has wrongly furnished the documents pertaining to Sy.No.1 instead of the documents pertaining to suit schedule property i.e., Sy.No.19 and therefore he has filed the application for amendment to delete paragraphs 4 and 5 and to incorporate new paragraphs 4 and 5 relating to details/particulars of Sy.No.19. Proposed amendment is only clarificatory in nature. By mere allowing the application for amendment of the plaint on par with the plaint schedule, no prejudice would be caused to the defendants and the evidence not yet commenced.
11. In the present case, the amendment sought is imperative for proper and effective adjudication of the case and the application for amendment is bonafide and the amendment sought will not cause prejudice to the case of the defendants and further refusing the amendment will lead to injustice or lead to multiple litigation and the amendment sought to incorporate new paragraphs 4 and 5 relating to details/particulars of suit schedule property i.e. Sy.No.19, will not constitutionally or fundamentally change the nature and character of the suit. Ultimately, it is for the plaintiff to prove that he is the owner of the suit schedule property based on the oral and documentary evidence to be adduced and produced by the parties. In view of the above, the impugned order passed by the trial Court cannot be sustained.
12. At this stage, Sri Abhinay Y.T., learned counsel for the petitioner - plaintiff fairly submits that in addition to the existing paragraphs 4 and 5 of the plaint, the proposed amendment can be treated as Paragraphs 4A and 5A to clarify the original paragraphs 4 and 5. Learned counsel for the respondents fairly submits that he has no objection to treat the proposed amendment as paragraphs 4A and 5A.
13. For the reasons stated above, the writ petition is allowed. The impugned order passed by the trial Curt dated 10.11.2017 on I.A. No.5 made in O.S. No.112/2014 on the file of the Addl. Civil Judge & JMFC, Srinivaspur is quashed. I.A. No.5 in O.S. NO.112/2014 is allowed in the following terms: The petitioner - plaintiff is permitted to incorporate the proposed amendment as paragraphs 4A and 5A in addition to the existing paragraphs 4 and 5 of the plaint as the same is only clarificatory in nature. In view of the above, the defendants are permitted to file additional written statement, if any within one month from the date of receipt of copy of this order and the trial Court shall proceed with the case strictly in accordance with law.
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