IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.38187/2014 (GM-CPC) BETWEEN:
SRI. R.V.GANGABYRAIAH S/O. LATE D.V.REVANNA AGED ABOUT 51 YEARS, RESIDING AT NO.503/B, NETHRAVATHI STREET, CHIKKAMARENAHALLI, NEW BEL ROAD, BANGALORE-560 054 (BY SRI.M.RAMA MOHAN, ADVOCATE) AND:
1. SRI.D.VENKATESH S/O. LATE DEVAPPA AGED ABOUT 47 YEARS, RESIDING AT NO.275/1, RAMA MANDIRA ROAD, KODIGEHALLI, SAHAKARNAGAR POST, BANGALORE-560 092 2. SRI.K.R.RAJANNA S/O. LATE G. RAMAIAH, AGED ABOUT 55 YEARS, RESIDING AT NO.1293, KODIGEHALLI, BANGALORE-560 092 ...PETITIONER ...RESPONDENTS (BY SMT. CHANDINI FOR SRI.N.DINESH RAO, ADVS FOR R-1;
SRI.B.V.ACHAR FOR SRI.P.LAKSHMINARAYANA, ADV. FOR R-2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED BY TRIAL COURT IN O.S.NO.7083/2010 DTD. 25.4.2014 PASSED BY THE V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE I.E., CCH- 13 VIDE ANNEX-E.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is the plaintiff in O.S.No.7083/2010. On conclusion of recording of evidence and when the matter was set down for arguments being addressed on the main matter, I.A.No.14 came to be filed by the plaintiff under Order VI Rule 17 of CPC seeking amendment of the plaint namely, to incorporate paragraph No.12A after paragraph 12, whereunder plaintiff sought to contend that suit schedule property though originally carved out of Sy.No.210/3 later it was renumbered as Sy.No.210/18 by revenue authorities contending interalia that this fact was not within his knowledge and inspite of due diligence being exhibited, he could not ascertain this fact and he became aware of this fact only after evidence of D.W.2 namely, second defendant was tendered deposing in his cross-examination that Sy.No.210/3 had been renumbered as Sy.No.210/18. Hence, contending he came to know about this fact only then, plaintiff has sought for incorporating the additional paragraph in plaint.
2. After considering the objections filed by the first defendant to the said application, learned trial Judge by impugned order has dismissed the same on the ground that it has been filed belatedly after matter was set down for final arguments; proposed amendment is uncalled for and unnecessary to decide the controversy between the parties and said plea would not be required for determination of the issues framed.
3. Having heard the learned Advocates appearing for the parties and on perusal of trial Court records it would emerge therefrom that, suit in question has been filed by the petitioner for perpetual injunction and to declare the judgment and decree passed in O.S.No.8333/1995 is not binding on the plaintiff. The pleadings as well as evidence on record would also disclose that petitioner is claiming title to the suit property by virtue of a sale deed dated 13.12.2001 executed by second defendant contending interalia that suit site has been carved out Sy.No.210/3. However, by the proposed amendment plaintiff intends to plead that Sy.No.210/3 was later renumbered as Sy.No.210/18. It is this proposed amendment which was sought for by plaintiff has been turned down by the trial Court, which is impugned in the present writ petition.
4. Suit in question being a suit for bare injunction, burden is on the plaintiff to prove his possession and enjoyment of the suit property and in the light of evidence tendered by D.W.2, it cannot be gainsaid by the petitioner that application filed for amendment requires to be allowed. However, at the same time, defendant cannot be heard to contend that plaintiff would not be entitled to place on record such material to establish that Sy.No.210/3 was renumbered by survey/revenue authorities as Sy.No.210/18.
5. In that view of the matter, without disturbing the impugned order, liberty is granted to the petitioner to place on record such material as he deems fit before the trial Court to establish that Sy.No.210/3 has been renumbered as Sy.No.210/18. However, under the guise of such liberty having been granted, petitioner would not be entitled to seek for any adjournment or postponement of proceedings before the trial Court.
Subject to these observations, petition stands rejected.
SD/- JUDGE DR