IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.55139/2016(GM-CPC) 1. SRI. RAJASHEKAR B J AGED ABOUT 45 YEARS S/O BALASAHEB S J RESIDING AT NO.583 4TH PHASE, HOSAKEREHALLI CROSS, GIRINAGAR, BENGALURU-560 085.
2. SRI LOKESH P AGED ABOUT 61 YEARS S/O PARASHA BOVI RESIDING AT NO.98 3RD CROSS, TELECOM LAYOUT MYSORE ROAD CROSS, NEAR NEW TIMBER YARD LAYOUT, BENGALURU-560 026.
... PETITIONERS (BY SRI Y. RAJENDRA PRASAD SHETTY, ADVOCATE ) AND:
SRI. NARAYANA GOWDA ALIAS NARAYAN S/O LATE SRI KEMPE GOWDA AGED ABOUT 60 YEARS, RESIDING AT NO.262 8TH MAIN ROAD, 3RD STAGE MANJUNATHA NAGAR, BENGALURU-560 010.
... RESPONDENT (BY SRI H. C. NATARAJ, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 17.10.2016 PASSED IN SO FOR AS ON I.A.II IN O.S.1829/2014 BY THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU AT ANNEXURE-A AND DISMISS THE I.A.II FILED BY THE RESPONDENT / PLAINTIFF.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants have filed the present writ petition against the Order dated 17th Octber, 2016 made in o.S.No.1829/2014 on I.A.2/16 allowing the application for amendment of the plaint.
2. The respondent, who is plaintiff has filed a suit for permanent injunction in respect of the suit schedule property morefully described in the schedule to the plaint contending that he is the owner and in possession of the suit schedule property. The defendants filed their written statement denying the plaint averments and contended that they are the owners and in possession and enjoyment of the suit schedule property and hence, the suit is not maintainable. When the matter was posted for evidence, at that stage, the plaintiff filed an application for amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure with regard to measurement in para-5 and schedule to the plaint of the schedule by adding schedule column continuing from Bangalore- 560085 onwards East-West: 50 feet, North-South 30 feet in all measuring 1500 sq. ft. and to delete para No.5 permitting the plaintiff to mention measurement as East-West 50 feet and North-South 30 feet instead of East-West 30 feet and North-South 50 feet and also to delete site No.432 in para No.5, 4th line and permit the plaintiff to add as site No.342 instead of 432 contending that while filing suit by oversight a typographical mistake has occurred in mentioning the measurement and the property number. Therefore, he sought to allow the application. The said application was opposed by the defendants by filing the objections. The trial Court considering the application and objections, by the impugned order dated 17.10.2016 allowed the application. Hence, the present writ petition is filed by the defendants.
3. I have heard the learned Counsel for the parties to the lis.
4. Sri Y. Rajendra Prasad, learned Counsel for the petitioners-defendants contended that the impugned order passed by the trial Court allowing the application for amendment after a lapse of more than two years is erroneous and contrary to the material on record. He would further contend that the amendment sought will virtually change the nature of the suit and hence, the amendment is not permissible. He would further contend that by way of amendment virtually the plaintiff wants to remove number and adding new site number, but the same has not been considered by the trial Court and if amendment is allowed, a new cause of action would arise. Therefore, he sought to allow the writ petition.
5. Per contra, Sri H.C. Nataraj, learned Counsel for the plaintiff-respondent sought to justify the impugned order and contended that the application filed is only to rectify the measurement in the schedule and site number in the schedule as well as in para-5 as site No.342 instead of site No.432. Therefore, he sought to dismiss the writ petition.
6. The trial Court considering the application and objections has recorded a finding that in order to avoid multiplicity of proceedings, the proposed amendment has to be allowed and no prejudice would be caused to the other side and it would not introduce new cause of action nor alter the nature of the suit. The amendment sought is only because of a typographical error in mentioning the measurement in the boundary and site number and the same deserve to be allowed.
Accordingly, the application for amendment was allowed.
7. Though the learned Counsel for the petitioners tried to pursued the Court that amendment would change the entire suit property and hence, amendment cannot be accepted at this stage, it has to be noted the suit is filed by the plaintiff originally in respect of site No.4308 carved in Sy.Nos.16, 17, 18, 19 of Gerehalli village and 101, 103/1, 103/2, 104/1, 104/2, 105 and 106 of Hoskerehalli village, Uttarahalli Hobli. In para-5 and schedule of the plaint, it is stated that the plaintiff is the absolute owner and in lawful possession and enjoyment of the site bearing No.4308 instead of site No.
342 carved in Survey Nos. 16, 17, 18, 19 of Gerehalli and by way of amendment, he wants to amend the measurement in the schedule and the correct site number as 342 instead of site No.432. Mere allowing the plaintiff to amend the measurement in the schedule and in para-5 of the plaint, will not affect or prejudice the case of the defendant. If he has already filed objections and written statement, the same has to be considered. While allowing the application for amendment, the trial Court ought to have permitted the defendants to file additional written statement, if any, but the same has not been done. The amendment sought is imperative for proper and effective adjudication of the case and will not prejudice the case of the other side as well as will not alter or change the nature and character of the case constitutionally or fundamentally. Therefore the contention of the learned Counsel for the petitioners cannot be accepted.
8. For the reasons stated above, the impugned order passed by the trial Court is just and proper and the petitioner has not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed. However, it is open for the defendant to file additional written statement, if any within a period of 15 days and the trial Court shall proceed with the suit in accordance with law.
9. Accordingly, writ petition stands dismissed.
Consequently, I.A.1/2017 does not survive for consideration.
Sd/- Judge Nsu/-