ARSHIFA BAHAR KHANAM v. H. SHARATH KUMAR & Ors.

4. SRI. H. RAJESH S/O LATE HARISCHANDRA AGED ABOUT 44 YEARS.

5. SMT. H. SUREKA D/O LATE HARISCHANDRA AGED ABOUT 42 YEARS REPRESENTED BY GPA HOLDER SL NO.4 SRI. H. RAJESH. SL.NO.1 TO 5 ARE R/AT. NO.45, PERIANNA AGRAHARA NAIDU LAYOUT - 2 - NC: 2026:KHC:3696 W.P. No.2242/2023 HC-KAR RAJIV GANDHI ROAD KANAKAPURA MAIN ROAD BENGALURU-560072.

6. SRI. B. CHANDRASHEKAR S/O LATE G.H. BANGERA AGED ABOUT 65 YEARS R/A NO.12/1, 2ND MAIN 9TH CROSS, CHAMARAJPET BENGALURU-560018.

7. SRI. B. UTTAM KUMAR S/O LATE G.H. BANGERA AGED ABOUT 60 YEARS R/A NO.404, BILVASHREE NILAYA 9TH CROSS, IST MAIN ROAD PANCHASHEELA NAGAR MUDALAPALYA, BENGALURU-560072.

8. SMT. B. SUJATHA W/O SRI. KUMAR D/O LATE G.H. BANGERA AGED ABOUT 58 YEARS R/A C/O TANUJA SRINIVAS DODDAGUBBI VILLAGE BIDARA HOBLI VILLAGE BAGALURU ROAD BENGALURU EAST TALUK. (BY SRI. MANJUNATH H, ADV.,) AND: …PETITIONERS

THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE N R SQUARE, BENGALURU-560002.

THE EXECUTIVE ENGINEER RAJARAJESHWARI NAGAR DIVISION BBMP OFFICE - 3 - NC: 2026:KHC:3696 W.P. No.2242/2023 HC-KAR NEAR CHOWDESHWARI BUS STOP MATHIKERE, BENGALURU-560054.

THE ASSISTANT EXECUTIVE ENGINEER BBMP, WARD NO.160 NEXT TO BEML COMPLEX R R NAGAR, BENGALURU-560098.

M/S HARSHITHA CONSTRUCTIONS REGD UNDER SHOP & ESTABLISHMENT ACT REPTD BY IT'S PROPRIETOR NO.10, 10TH CROSS, ITI LAYOUT PAPAREDDY PALYA NAGARBHAVI 2ND STAGE BENGALURU-560072. …RESPONDENTS (BY SRI. MALLIKARJUN REDDY K.S. ADV., FOR R1 TO R3 SMT. NANDINI B, ADV., FOR SRI. BHARGAV G, ADV., FOR R4) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS PENDING DISPOSAL OF THE FILE OF THE COURT OF THE LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU (CCH-67) IN O.S.NO.2849/2017. QUASH THE IMPUGNED ORDER DTD 16.01.2023 IN O.S.NO.2849/2017 REJECTING THE APPLICATION MADE BY THE PETITIONER UNDER ORDER 6 RULE 17 R/W SECTION 151 OF CPC, 1908 WHICH IS PRODUCED AS ANNEXURE-A, PASSED BY THE COURT OF LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU CITY (CCH-67) AND CONSEQUENTLY ALLOW THE APPLICATION MADE BY THE PETITIONER UNDER ORDER 6 RULE 17 R/W SECTION 151 CPC, 1908 WHICH IS PRODUCED AS PER ANNEXURE-E & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - NC: 2026:KHC:3696 W.P. No.2242/2023 HC-KAR CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking the following reliefs: "A. Call for the records pending disposal on the file of the Court of the LXVI Additional City Civil and Sessions Judge, at Bengaluru (CCH-67) O.S.No.2849/2017. B. Issue a writ of Certiorari or any other appropriate writ quashing the impugned order dated

16.01.2023 in O.S.No.2849/2017 rejecting application made by the petitioner under Order 6 Rule 17 r/w Section 151 of CPC, 1908 which is produced as Annexure-A, passed by the Court of LXVI Additional City Civil and Sessions Judge at Bengaluru City (CCH-67) and consequently allow the application made by the petitioner under Order 6 Rule 17 read with Section 151 CPC, 1908 which is produced as per Annexure-E. C. Pass any other order/s as the Hon'ble trial Court deem fit to pass under the facts and circumstances of the revision petition. "

2. Sri. Manjunath H., learned counsel for the petitioners submits that the petitioners have filed an - 5 - NC: 2026:KHC:3696 W.P. No.2242/2023 HC-KAR application under Order VI Rule 17 read with Section 151 of CPC seeking amendment of the plaint on the ground that during the pendency of the suit in O.S.No.2849/2017 filed by the petitioners, the subsequent events have taken place. It is submitted that in violation of temporary injunction granted by the trial Court, respondent No.4, who is a Contractor under respondent Nos.1 to 3, in violation of temporary injunction, proceeded to take up the work. It is specifically averred the affidavit accompanying the application that on 10.03.2021, the respondent No.4, in violation of the temporary injunction order, continued with the work and the said fact was not appreciated by the trial Court and proceeded to reject the application for amendment on the ground that the application is filed at the belated stage i.e., when the matter was posted for arguments. It is further submitted that the question of due diligence and delay would not arise as the proposed amendment is a subsequent event which occurred during the pendency of the said suit with a - 6 - NC: 2026:KHC:3696 W.P. No.2242/2023 HC-KAR specific assertion that in violation of the temporary injunction order, on 10.03.2021 the respondent No.4- defendant No.4 had taken up the work. It is also submitted that unless the said application is allowed there would not be a complete adjudication of the dispute as the petitioners are seeking further prayer of mandatory injunction to remove the work carried out by the defendant No.4 during the pendency of the suit. Hence, he seeks to allow the writ petition.

3. Per contra, Sri. Mallikarjun Reddy K.S., learned counsel for respondent Nos.1 to 3 and Smt. Nandini B., learned counsel appearing on behalf of Sri. Bhargav G., learned counsel for respondent No.4 submits respondent No.4 has filed detailed objections to the application seeking amendment and it is specifically stated that the respondents had the knowledge about the temporary injunction granted by the trial Court and after the said order, no work has been taken up. It is submitted that the said aspect has also been admitted by PW-1 in - 7 - NC: 2026:KHC:3696 W.P. No.2242/2023 HC-KAR cross-examination, which has been considered by the trial Court and rejected the application. Therefore, the said order does not call for any interference and hence, seeks to dismiss the petition.

4. I have heard the arguments of the learned counsel for the petitioner, learned counsel for the respondents and meticulously perused the material available on record.

The records indicate that the petitioners filed a suit in O.S.No.2849/2017 for the relief of mandatory injunction against respondent Nos.1 to 4 restraining them from carrying out any development of roads and drains by way of tar etc. in the suit schedule properties by virtue of work order dated 25.10.2016. The records also indicate that the trial in the said case has been concluded and the matter is posted for arguments and at that stage, the petitioners have filed an application under Order VI Rule 17 read with Section 151 of CPC seeking for amendment - 8 - NC: 2026:KHC:3696 W.P. No.2242/2023 HC-KAR of the plaint. The perusal of the said application and the averments made in the accompanying affidavit indicate that the petitioners are making assertion that on

10.03.2021, the respondent No.4-defendant No.4, the contractor is taking up the work in violation of the temporary injunction and during the pendency of the contempt petition filed by the petitioners in Civil Mis. No.860/2017. To rebut the said assertion, the respondent No.4 - Contractor has filed objections and at para No.3 of the objections, a specific stand is taken that after the grant of a temporary injunction by the trial Court, work has been stopped and no further work has been carried out. The respondent No.4 has also asserted that PW-1 in his cross-examination has also admitted that no work has been taken up.

Learned counsel for the petitioners submitted that the cross-examination of PW-1 was conducted in the year 2017 and thereafter these events have taken place. The trial Court, taking note of the assertion made in the - 9 - NC: 2026:KHC:3696 W.P. No.2242/2023 HC-KAR application and objections, has recorded a finding that the application is filed at the belated stage and matter is posted for arguments. In my considered view, the finding recorded by the trial Court are in consonance with the law on point and material on record, hence, the same does not call for any interference.

It is to be noticed that the petitioners have also filed a contempt petition in Civil Mis. No.860/2017 for the alleged violation of the order. The trial Court would take note of the same if assertion of the petitioners made in the application is found to be correct. With the above observations, I am of the view that the present petition is devoid of merits and accordingly, the petition is rejected. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 0