IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.3168 OF 2019 (GM-CPC) BETWEEN:
1. Sri. Rajanna, S/o. Late Narayanaswamy, Aged about 53 years, 2. Sri. Krishnappa, S/o. Late Narayanaswamy, Aged about 40 years, 3. Sri. Chandrappa, S/o. Late Narayanaswamy, Aged about 38 years, 4. Sri. Srinivasa, S/o. Late Lakshmiah, Aged about 58 years, 5. Sri. Sathisha, S/o. Srinivasa, Aged about 38 years, 6. Sri. Harisha, S/o. Srinivasa, Aged about 29 years, All are R/at Uthanahalli Village, Jala Hobli, Bengaluru North Taluk, Bengaluru District – 562157.
(By Sri. N.Murali, Advocate) AND:
Sri. H.S.Muniyappa, S/o. Late Shivappa, Aged about 79 years, 2nd Cross, No.37, Ganganagar, Bengaluru-560032.
…petitioners ... Respondent This WP is filed under article 227 of the Constitution of India, praying to call for records in O.S.No.89/2013 on the file of the Civil Judge and JMFC, Devanahalli, quash the impugned order dated 17.07.2018 made in O.S.No.89/2013 on the file of the Civil Judge and JMFC, Devanahalli, vide annexure-K in the WP and consequently dismiss the application filed under Order 6 Rule 17 of CPC and etc.
This WP coming on for preliminary hearing this day, the Court made the following:
ORDER The defendant Nos.1 to 6 in the suit O.S.No.89/2013 on the file of the Civil Judge and JMFC, Devanahalli have preferred this writ petition under Article 227 of the Constitution of India challenging the order passed by the trial Court on an application filed under Order VI Rule 17 of CPC (Annexure-K).
2. Heard the petitioners’ counsel.
3. The petitioners’ counsel submits that at the time when respondent/plaintiff instituted a suit for permanent injunction, he gave the western boundary of the plaint schedule property as land of Narayanaswamy and Srinivas. Narayanaswamy is none other than the father of defendant Nos.1 to 3 and Srinivas is defendant No.4. He tried to project a picture that these defendants tried to interfere with his possession of property bearing Sy.No.24/1 to an extent of 1 acre 28 guntas. Defendants do not dispute that property measuring 1 acre 28 guntas in Sy.No.24/1 belongs to the plaintiff, but they dispute the western boundary. The counsel submitted that according to defendants, there is a road in between their property and the plaintiff’s property.
4. He further submitted that in the suit, defendants also made an application under Order 39 Rules 1 and 2 CPC seeking injunction against the plaintiff in respect of road and said application was allowed. Challenging that, the plaintiff preferred an appeal in MFA No.15056/2016 in the Court of V Additional District and Sessions Judge, Devanahalli. Said appeal was dismissed observing very clearly that the plaintiff had suppressed the fact of existence of road between the properties belonging to the plaintiff and the defendants. In order to over come these proceedings, the plaintiff made an application under Order VI Rule 17 of CPC to show the western boundary as ‘government pathway and land of late Narayanaswamy and Srinivasa’. Therefore it is the argument of the learned counsel for the petitioners that the plaintiff swore to a false affidavit stating that the pathway did not exist. The trial Court should not have allowed the application for amendment. Grant of amendment amounts to ratifying the false affidavit filed by the plaintiff. Hence this writ petition.
5. In para 3 of the affidavit filed along with the application under Order VI Rule 17 of CPC, it is stated that while filing the suit, inadvertently the western boundary was mentioned as land of Narayanaswamy instead of pathway and land of Narayanaswamy; it was a typographical error which requires correction.
6. After hearing the petitioners’ counsel, it is to be sated that the plaintiff/respondent has given a reason seeking amendment. According to him, there was a typographical error in mentioning the western boundary of the plaint schedule property. If according to petitioners, the respondent intentionally gave the western boundary wrongly at the time of filing the suit, the said conduct of the plaintiff is a matter to be considered by the trial Court at the time of deciding the suit on merits. Even according to the petitioners, there is a road in between the two properties. Therefore grant of amendment has not affected the defendants’ interest in any way. Since grant of relief of injunction lies within the discretionary power of the Court, if according to the petitioners intention of the respondent was to suppress a material fact with a view to misleading the Court, the petitioners can certainly bring this factor to the notice of the trial Court at the time of final hearing. The petitioners can also cross examine plaintiffs’ witness/witnesses on this aspect. I do not think that the trial Court has committed any error in granting amendment to plaint. The writ petition is not worth admission. It is thus disposed of.
KMV/-
Sd/- JUDGE