IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 16307 OF 2017 (GM-CPC) BETWEEN:
SRI. T. M. BELLIAPPA S/O T S MOTAIAH, AGE 27 YEARS, MUKKODLU VILLAGE, AVANDI POST, MADIKERI TALUK, KODAGU DISTRICT – 571 251.
(BY SRI. B O CHANDRA SHEKAR, ADVOCATE) AND:
SMT. NALINI UTHAPPA, W/O K A UTHAPPA, AGE 59 YEARS, HATTIHOLE, HADAGERI VILLAGE, SOMAWARPET TALUK, KODAGU DISTRICT – 571 251.
(BY SRI. JITENDRA C P, ADVOCATE) ... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 05.04.2017 PASSED ON I.A.NO.XII IN O.S.NO. 127/2014, PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE, SOMWARPET, KODAGU DIST, VIDE ANNX-A IN SO FAR AS IT RELATES TO REJECTION OF PROPOSED AMENDMENTS AT SL. NO. C & D OF THE APPLICATION AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
Page No.1 is retyped and replaced Vide Chamber Order Dated 19.11.2019 O R D E R Petitioner being the plaintiff in a declaratory suit in O.S.No.127/2014 is knocking at the doors of writ court for assailing the order dated 05.04.2017, a copy whereof is at Annexure-A, whereby the learned Sr.Civil Judge, Somwarpete having partly favoured his application in I.A.No.12 filed under Order VI Rule 17 r/w Sec.151 of CPC, 1908 has denied relief to amend in respect of paras ‘c & d’ in the subject application. After service of notice, the respondent having entered appearance through her counsel opposes the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court grant indulgence in the matter inasmuch as the reasons assigned for granting leave for amendment in respect of paras ‘a & b’ in the subject application in all fours apply to the prayer in respect of paras ‘c & d’ therein as well. The reasoning of the Court below that if the amendment in question is now introduced to the pleadings, it would change the nature of the suit, appears to be too farfetched a view.
3. The suit is for declaration of easementary rights.
The pleadings having been completed, the issues having been framed, the trial has also begun, is true; but the trial has not advanced to an extent where granting of leave for the subject amendment would prejudice the interest of the other side; any little prejudice that would be occasioned can be set right by the petitioner to pay reasonable costs.
In the above circumstances, this writ petition succeeds, the impugned order to the extent it denies leave to amend in respect of paras ‘c & d’ in the subject application having been favoured, leave is accorded for amending the pleadings as sought for, subject to petitioner paying a cost of Rs.5,000/- to the respondent on the next date of hearing of the suit or within one month, whichever is later, failing which the order now quashed shall stand resurrected.
All contentions of the parties are kept open.
It is open to the respondent to file additional pleadings if she so desires, within four weeks.
Sd/- JUDGE Snb/