IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITON No.38780 OF 2014 (GM-CPC) BETWEEN:
1. SRI RAMAIAH AGED ABOUT 66 YEARS S/O. LATE DODDAPAPAIAH 2. SRI H.R. MANJUNATHA AGED ABOUT 31 YEARS S/O. RAMAIAH BOTH ARE RESIDENTS OF HAROHALLI VILLAGE ANUGONDANAHALLI HOBLI HOSAKOTE TALUK BANGALORE RURAL DISTRICT 3. SRI MANJUNATHA AGED ABOUT 36 YEARS S/O. MUNIYAPPA 4. SRI. MARKONDA AGED ABOUT 41 YEARS S/O. MUNIYAPPA 5. SRI BABU AGED ABOUT 51 YEARS S/O. MUNIKRISHNAPPA P3 TO P5 ARE RESIDENTS OF MUTHSANDRA VILLAGE ANUGONDANAHALLI HOBLI HOSAKOTE TALUK BANGALORE RURAL DISTRICT. …PETITIONERS (BY SRI D. NAGARAJA REDDY, ADVOCATE) AND SMT. RAJAMMA AGED ABOUT 51 YEARS W/O. NAGARAJU R/O HAROHALLI VILLAGE ANUGONDANAHALLI HOBLI HOSAKOTE TALUK BANGALORE RURAL DISTRICT. … RESPONDENT (BY SMT. GOWHARUNNISA FOR SRI V. VISHWANATHA SHETTY, ADVOCATES) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 24.06.2014 PASSED ON APPLICATION FILED UNDER ORDER VI RULE 17 OF THE CPC., PASSED BY THE CIVIL JUDGE AND JMFC, HOSAKOTE IN O.S.NO.154/2008, AS PER ANN-E AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the defendants in respondent’s injunctive suit in O.S.No.154/2008 are invoking the writ jurisdiction of this Court for assailing the order dated 24.06.2014, a copy whereof is at Annexure – E, whereby the learned Civil Judge (Jr.Dn.), Hosakote having favoured respondent-plaintiff’s application filed under Order VI Rule 17 of CPC, 1908 has accorded leave to amend the plaint. The respondent having entered appearance through her counsel, opposes the writ petition.
2. Learned counsel for the petitioners argues that the suit is of the year 2008; it is for a decree of bare injunction; trial having been accomplished, the matter was posted for arguments; at this stage, the application for amendment of pleadings could not have been favoured, in view of the bar enacted in the proviso under Order VI Rule 17 of CPC, 1908 as held by the Apex Court in Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117; he further submits that amendment as sought for, would change the very nature of the suit; therefore, the same is not permissible especially apparently when there are no bona fides in the application for amendment. So contending, he seeks allowing of the writ petition.
3. Learned counsel for the respondent-plaintiff per contra contends that the order allowing the amendment is a product of exercise of discretionary power by the Court below; although ordinarily, such an amendment is not permissible, in the special circumstances of the suit, the Court below has granted leave to amend the plaint; the amendment allowed now will not change the nature of the suit and conversely, it facilitates due adjudication of the lis between the parties and prevents multiplication of the suit proceedings. So contending, she seeks dismissal of the writ petition.
4. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants indulgence in the matter for the following reasons:
a). The suit in O.S.No.154/2008 filed by respondent herein for an injunctive decree having been tried was posted for arguments and at this stage, the subject application for amendment of plaint has been moved; therefore, the bar enacted in the proviso under Order VI Rule 17 of CPC, 1908 come into play against allowing such an application especially when going by the material on record, it lacked bona fide and diligence;
b). the amendment now allowed by the Court below not only results into admissions made in the pleadings having been withdrawn but it would alter the very nature and structure of the suit to the prejudice of the petitioner-defendants; and, c). the explanation offered for delay in making such an application does not constitute one of the exceptions enlisted by the Apex Court in the case of the K.K. Veluswamy V/s. Palanisamy (2011) 11 SCC 275.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught;
Since the suit is more than a decade old, a request is made to learned trial Judge to dispose off the same as early as possible.
No costs.
Sd/- JUDGE KTY