IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10th DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.40838 OF 2017 (GM - CPC) BETWEEN:
Venkatesh.V S/o Venkatswamappa, Aged about 50 years, Residing at Kannuramma Temple Road, RMV II Stage, Bengaluru – 560 004.
... Petitioner (By Sri.Vishwanath.N, Advocate) AND:
The Commissioner Bengaluru Water Supply & Sewerage Board, Cauvery Bhavan, Kempegowda Road, Bengaluru – 560 009.
… Respondent (By Sri.M.Narayanappa, Advocate) This writ petition is filed under Article 227 of the Constitution of India praying to quash the impugned order dated 17.04.2017 on I.A.No.6 in O.S.No.8194/2012 on the file of XI Additional City Civil and Sessions Judge, Bengaluru vide Annexure-E to the writ petition.
This writ petition coming on for Orders this day, the Court made the following:
ORDER The petitioner-plaintiff filed the present writ petition against the order dated 17.04.2017 on I.A.No.6 passed by XI Additional City Civil and Sessions Judge, Bengaluru made in O.S.No.8194/2012 rejecting the application for amendment, filed by plaintiff under Order VI Rule 17 of Code of Civil Procedure.
2. The petitioner-plaintiff filed suit for permanent injunction in respect of the suit schedule property contending that the plaintiff is the owner in possession and enjoyment of suit schedule property more fully described in schedule to the plaint under the registered sale deed dated 20/30.07.1931. The defendant authority who had no right, title and interest in the property came to the suit schedule property at the instance of third party tried to dig up schedule land without intimation to the plaintiff. Therefore, the plaintiff filed suit for the relief prayed for. The defendant filed the written statement and denied the plaint averments and contended that in the suit schedule property a road was formed long back and same is used by the public and also the defendant laid the sanitary pipe line on one edge of the road which connects Devinagar to Kannuramma Layout before institution of the said suit. Further, BESCOM authorities have already laid the electrical power cables and the public are making use of this road. The defendant is a statutory authority has not involved in any activities as alleged and sought for dismissal of the suit.
3. When the mater was posted for plaintiff’s evidence, at that stage, the plaintiff filed application under under Order VI Rule 17 of Code of Civil Procedure to amend para 5(a) of the plaint to the effect that the property originally belonged to grand father Sri.Doddamuni- venkatappa who purchased under the registered sale deed dated 20/30.07.1931 and enjoying the suit schedule property. Either the BBMP or the defendant BWSSB or any other authority had not acquired the suit schedule property for formation of the road or laying water pipe line etc. and no acquistion notice is received by the plaintiff. Inspite of granting temporary injunction against the defendant, the defendant has digged the suit schedule property and laid water pipe line in the said property, therefore, it has necessiated for the plaintiff to seek ownership of the suit schedule property. The said application was resisted by the defendant by filing objections and contended that the application is not maintainable since the defendant already laid sanitary pipe line on one edge of the road which connects Devinagar to Kannuramma Layout before institution of the suit and has not voilated the interim order passed by the Court below and has not disobeyed or disrespected the order of the trial Court and sought for dismissal of the application. The trial Court considering the application and objections by impugned order dated 17.04.2017 has rejected the application-I.A.No.6 filed by the plaintiff. Hence, the present writ petition is filed.
4. I have heard the learned counsel appearing for the parties to the lis.
5. Sri.N.Viswanath, learned counsel appearing for the petitioner contended that originally the suit was filed for permanent injuction. Since the defendant violated the interim order and tried to dig the suit schedule property and laid the water pipe line and denied the title, therefore, based on the same set of facts, the plaintiff wants to amend the relief for declaration. The same would no way cause prejudice to the case of otherside. He would further contend that the impugned order passed by the trial Court is not speaking order and rejected only on the ground that the plaintiff all along for 2 years evaded to lead evidence and now come up with this application. Proposed amendment is not only belated but also not necessary for adjudication of the controversy. He would further contend that the proposed amendment will not change or alter the nature of the suit nor prejudice would be caused to the defendant. Therefore, sought to allow the writ petition.
6. Per contra, Sri.M.Narayanappa learned counsel for the respondent sought to justify the impugned order and contended that the application is filed only an after thought and cannot be entertained. Admittedly, the defendant has taken specific contention in the written statement that even before institution of suit, the sanitary pipe line has already been laid in the suit schedule property and never disobeyed the interim order. The application is filed only to drag the proceedings. Therefore, he sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is undisputed fact that initially the plaintiff has filed suit for permanent injunction based on the registered sale deed dated 20/30.07.1931 contending that he is in possession of suit schedule property. The defendant filed written statement denied the plaint averments and contended that the defendant already laid sanitary pipe line on one edge of the road which connects Devinagar to Kannuramma layout even before the institution of suit. The plaintiff filed the application on the same set of facts for the relief of declaration since the defendant denied the title of the plaintiff in the written statement. Mere allowing the application for the relief of declaration on the same set of facts in a suit for injuction, no prejudice will be caused, it is for the plaintiff to prove the declaration based on the original documents to be produced and adduced by the parties. Admittedly, in the present case, evidence has not yet commenced. The learned judge erroneously rejected the application holding that the application is belated.
8. The learned judge passed the order without assigning any reason in rejecting the application. The amendment sought based on the same set of facts is proper perspective, imperative for proper adjudication of the case and the application filed for amendment is bonafide and by allowing the application for amendment, no prejudice would be caused to the defendant. If the application is not allowed, it will lead to injustice and in multiplicity of litigation. The proposed amendment sought would not constitutionally or fundamentally changes the character of the suit. In view of the above reasons, the impugned order cannot be sustained.
9. For the reasons stated above, the writ petition is allowed. The impugned order dated 17.04.2017 on I.A.No.6 passed by XI Additional City Civil and Sessions Judge, Bengaluru made in O.S.No.8194/2012 is hereby quashed. I.A.No.6 filed by the plaintiff under Order VI Rule 17 of Code of Civil Procedure for amendment is allowed, subject to payment of costs of Rs.2,500/- payable to the defendant on the next date of hearing. The defendant is also permitted to file additional written statement if any, within a period of 15 days from the date of receipt of this order and the trial Court shall proceed in accordance with law.
Sd/- JUDGE UN