IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NOS.7869-7871 OF 2019 (GM-CPC) Between:
1. Sri T.K. Chikkegowda Aged 69 years S/o. late T. Karigowda.
2. T.K. Ravi Aged 33 years S/o. late Krishnegowda.
3. T.T. Rajegowda Aged 49 years, S/o. T.K. Thammegowda.
All are residing at: Thelaganakuppe Village, Ravandur Hobli, Periyapatna Taluk – 571 107 Mysuru District. … Petitioners (By Sri B.S. Nagaraj, Adv.) And:
1. Sri P.P. Mahadeva, Aged about 56 years, S/o. late Puttaiah.
2. Sri Santosha, Aged about 31 years, S/o. P.P. Mahadeva.
3. Sri Sampatha, Aged about 29 years, S/o. P.P. Mahadeva.
4. Sri Ramesh, Aged about 51 years, S/o. late Dhanaraj.
5. Sri Pinto, Aged about 41 years, S/o. late Dhanaraj.
All are residing at:
Opp: Corporation Bank, Periyapatna Town, Kasaba Hobli, Periyapatna Taluk – 571 107. Mysuru District.
... Respondents (By Sri Abubacker Shafi, Adv. for R1 to R5) *** These Writ Petitions are filed under Article 227 of the Constitution of India praying to quash the impugned order dated 04.02.2019 passed by rhw Hon’ble Court of the Civil Judge and JMFC at Periyapatna on I.A.No.IV in the suit O.S.No.7/2018 copy submitted at Annexure-L.
These Writ Petitions coming on for Orders, this day, the court made the following:
ORDER The plaintiffs No.1 to 3 have filed the present writ petition against the order dated 04.02.2019 passed on I.A. No.IV made in O.S.No.7/2018 by the Civil Judge and JMFC at Periyapatna rejecting the application for amendment of the plaint.
2. The plaintiffs filed suit for permanent injunction in respect of the suit schedule property contending that they are the owners in possession of the same. The defendants/respondents having no right, title and interest over the suit schedule property, interfered with the same. The respondents/defendants filed written statement denying the plaint averments and contended that they are the owners of the property in question. When the matter was posted for evidence, at that stage, I.A.No.IV came to be filed by the plaintiffs under Order VI Rule 17 R/w Section 151 of Code of Civil Procedure seeking permission to incorporate paragraphs 2(A), 2(B), 2(C) and 2(D) to the facts of the case to show how they became the owners of the said property. The said application was resisted by the defendants. The trial Court considering the application and objection, by the impugned order dated 04.02.2018, dismissed the application filed by the plaintiffs. Hence the present writ petition is filed.
3. I have heard the learned counsel appearing for the parties to lis.
4. Sri B.S. Nagaraj, learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the application is erroneous and contrary to material on record. He further contended that the amendment as sought is only the certain facts which are clarification in nature to prove how they became the owners of the property and no prejudice would be caused to the defendants if the present writ petition is allowed. He would further contend that the trial Court has erred in holding that the plaintiffs have not exercised their due diligence in filing the application and except blaming the previous counsel have not made out ground to allow the application and there was a direction by this Court in W.P.No.23281-83/2018 to dispose of the case. Hence, he sought to allow the writ petitions.
5. Per contra, Sri Abubacker Shafi, learned counsel appearing for respondents No.1 to 5 sought to justify the impugned order of the trial Court and contended that in the suit for permanent injunction, proposed amendment of facts are not necessary. Ultimately it is for the plaintiffs to prove their case on the basis of oral and documentary evidence on record. Therefore, he sought to dismiss the petitions.
6. Having heard learned counsel appearing for the parties, it is an undisputed fact that the plaintiffs have filed suit for permanent injunction claiming that they are the owners in possession of the property in question. The defendants filed written statement denying the plaint averments and contended that they are the owners of the property in question. Whether the plaintiffs are the owners or the defendants are the owners of the property in question is the matter which has to be adjudicated after full fledged trial on the basis of oral and documentary evidence to be adduced by both the parties. The amendments though contains 3 pages which are in the nature of facts to assert how the plaintiffs become the owners and in possession of the suit property and in no way prejudice the case of the defendants in respect of the suit property.
7. In the suit for permanent injunction, ultimately it is for the plaintiff to prove his case for grant permanent injunction. The learned judge proceeded to reject the application mainly on the ground that the plaintiffs were not due diligence in filing the amendment application at the relevant point of time and kept quit till the matter reached before the Appellate Court and this Court. The suit is filed in the year 2018. When the application came to be filed for amendment, evidence was not yet commenced. The trial Court ought to have allowed the application as the evidence not yet commenced. Mere allowing the application not amounts to granting of decree in favour of the plaintiffs. Ultimately the plaintiffs have to establish their case by oral and documentary evidence on record.
8. The proposed amendment as sought for is in the nature of clarification and is imperative for proper adjudication of the case. The amendment sought is bonafied and will not cause prejudice to other side. Refusing the prayer sought causes injustice and will lead to multiplicity of proceedings. The proposed amendment constitutionally and fundamentally will not change the nature and the character of the suit. Therefore, the trial Court ought to have allowed the application, but the same has not been done in the present case.
9. In view of the aforesaid reasons, the writ petition is allowed, the impugned order dated 04.02.2019 made in O.S.No.7/2018 by Civil Judge and JMFC, Periyapatna is hereby quashed. I.A.No.IV filed by the plaintiffs/petitioners under Order VI Rule 17 R/w Section 151 of CPC is allowed. The petitioners/plaintiffs are permitted to amend the plaint accordingly.
10. In view of the above, the defendants/respondents are directed to file amended written statement if any. Ultimately it is for the plaintiffs to prove their case based on the oral and documentary evidence.
With the above observation, the writ petitions stand disposed of.
Sd/- JUDGE PN/-