IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No. 2187/2017 (GM-CPC) BETWEEN:
SRI VEERABHADRAPPA, S/O SANNAPPA, AGED ABOUT 55 YEARS, GUNJANOORU VILLAGE, KASABA HOBLI, SORABA-TALUK, SHIVAMOGGA DISTRICT-577 429.
... PETITIONER (BY SRI V. TUKARAM RAO, ADVOCATE FOR SRI S. P. KULKARNI, ADVOCATE) AND:
SRI BELLI NARAYANAPPA, S/O SANNAPPA, AGED ABOUT 57 YEARS, GUNJANOORU VILLAGE, KASABA HOBLI, SORABA TALUK, SHIVAMOGGA DISTRICT-577 429.
… ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/ SET ASIDE THE ORDER DATED 4.1.2017 MADE ON I.A.NO.V IN O.S.NO.211/2014 FILED UNDER ORDER VI RULE 17 OF CPC ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, SORABA, BEING ARBITRARY, ERRONEOUS AND OPPOSED TO LAW VIDE ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner, who is defendant has filed the present writ petition against the order dated 4.1.2017 on I.A.V in O.S.No. 282/2009 filed under Order VI Rule 17 of the Code of Civil Procedure on the file of the Principal Civil Judge and JMFC., Soraba to insert additional pleadings to para-3 of the plaint and additional para-6-A with additional pleadings regarding interference of the defendant to the suit schedule property.
2. The respondent, who is plaintiff filed a suit for permanent injunction on the ground that the suit schedule property was granted to him by the jurisdictional Tahsildar on 6.1.1999 and hence, he is the owner of the suit schedule property; that though the defendant having no manner of right, title and interest over the suit schedule property, had tried to interfere with the same on 21.10.2014, etc., and hence, he filed a suit for the relief sought for.
3. The defendant-petitioner denied the entire plaint averments and contended that property bearing Sy.No. 51/1 is the property belonging to the joint family of him and the plaintiff; that the plaintiff-respondent is not the absolute owner of the suit schedule property. Hence, both he and the plaintiff are in possession and enjoyment of the suit schedule property and therefore, sought for dismissal of the suit.
4. When the matter was posted for plaintiff’s evidence, at that stage, plaintiff filed I.A.V under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure, 1908 seeking for amendment of the plaint by inserting additional pleadings and prayer. The said application was resisted by the defendant by filing objections.
5. The trial Court considering the entire material on record, by the impugned order dated 4.1.2017 allowed the application. Hence, the present writ petition is filed.
6. I have heard the learned Counsel for the petitioner.
7. Sri V. Tukaram Rao for Sri S.P. Kulkarni, learned Counsel for the petitioner contended that the impugned order passed by the trial Court allowing the application for amendment is totally arbitrary, erroneous and contrary to the law. He further contended that the proposed amendment is different from the one already pleaded in the original suit. The respondent herein has attempted to merge a new and different cause of action in the previously instituted suit and as such, the same is not permissible in law. He also contended that in view of the amended provision of the Code of Civil Procedure, the amendment application cannot be allowed after commencement of the trial. In the present case, when the trial had already been commenced, the application for impleading is not maintainable. Therefore, sought to set aside the impugned order passed by the trial Court.
8. The material on record clearly indicates that the plaintiff filed a suit for permanent injunction on the basis of the grant dated 6.1.1999 contending that he is in possession and enjoyment of the suit schedule property. The revenue entries were also standing in his name. The said averments were disputed by the defendant by filing written statement and contended that the suit schedule property is the joint family property of the defendant and they are in possession and enjoyment of the same.
9. It is also not in dispute that when the matter was posted for recording of evidence, at that stage, the present application for amendment was filed which was opposed by the defendant.
10. The amendment application is filed under Order VI Rule 17 of the Code of Civil Procedure only for inserting additional facts and additional prayer on the same set of pleadings already pleaded which will not prejudice the case of the defendant.
11. It is well settled that if an application for amendment is allowed permitting the plaintiff to insert additional pleadings and prayer, it is always open for the defendant to file additional written statement, if any. The trial Court considering the pleadings and objections to the said I.A., has specifically recorded a finding that the proposed amendments are in respect of the pleadings of alleged interference to be inserted in plaint para No.3 and para No.6A; that the amendment sought will not change the nature of the suit and if the application is allowed and the plaintiff is permitted to amend the plaint by inserting additional pleadings to the plaint, no injury would be caused to the defendant. Hence, allowed I.A.5 filed under Order 6 Rule 17 of the Code of Civil Procedure.
12. In view of the above, the defendant-present petitioner has not made out any ground to interfere with the impugned order passed by the trial Court. Accordingly, writ petition is dismissed.
13. However, it is always open for the defendant to file additional written statement, if any, to the application for amendment of pleadings in accordance with law.
Sd/- Judge Nsu/-