IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 50372 OF 2019 (GM-CPC) BETWEEN:
SRI. U M RAMESH RAO, AGED ABOUT 76 YEARS, S/O LATE U M KRISHNA RAO, CHARTERED ACCOUNTANT AND COFFEE GROWER, L G ROAD, CHIKMAGALUR – 577 101.
… PETITIONER (BY SRI. S K V CHALAPATHY, SENIOR COUNSEL A/W SRI. POONACHA C M, ADVOCATE) AND:
SRI. S DINAKAR RAO, AGED ABOUT 89 YEARS, S/O LATE S G SUNDAR RAO, RESIDING AT NO.47, PRABHU STREET/ CHURCH STREET, CHIKMAGALURU – 577 101.
… RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 07.09.2019 PASSED ON I.A.NO.11 IN O.S.NO.55/2016 BY THE COURT OF THE SECOND ADDL. SENIOR CIVIL JUDGE AND JMFC, CHIKMAGALURU (ANNX-A) AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the defendant in a partition suit in O.S.No.55/2016 is invoking the writ jurisdiction of this Court for assailing the order dated 07.09.2019, a copy whereof is at Annexure-A, whereby the learned Second Additional Sr. Civil Judge, Chickmagaluru, having favoured respondent-plaintiff’s application filed under Order VI Rule 17 of CPC, 1908, has granted leave to amend the plaint as sought for therein.
2. Having heard the learned Sr. Counsel, Shri K.V.Chalapathy, appearing for the learned counsel for the petitioner on record and having perused the petition papers, this Court declines to grant indulgence in the matter concuring with the reasoning at para No.18 of the impugned order, which reads as under:
“I find that amendment sought for is just and necessary to effectively decide all the issues arising between the parties. Trial is not yet commenced. The amendment sought for will not change the nature of suit and does not alter the cause of action. The amendment sought for is necessary for the purpose of determining the real question in controversy between the parties and to do complete justice. I find that the amendment which are sought to be included also relate to certain subsequent events which have taken place during the pendency of suit are necessary to effectively determine the real question in controversy between the parties. Nature and character of suit will not be changed by allowing the proposed amendment. The cause of action remain the same. There are no inconsistent pleas.”
3. The contention of the learned Sr. Advocate that the amendment now allowed shall change the nature of the suit may be to some extent true as any amendment would result into some change the parameters of the litigation; what the Court has to look into is whether the change brought about by the sanctioned amendment is prejudicial to the interest of the challenger; this Court does find that any such prejudice the other reason for declining indulgence in the matter is that it is a pre-trial amendment which ordinarily Courts would consider leniently in the absence of special reasons to the contrary.
In the above circumstances, the writ petition being devoid of merits, is rejected in limine.
The learned trial judge, however is requested to try & dispose off the suit as expeditiously as possible.
All contentions of the parties are kept open.
Sd/- JUDGE Bsv