The High Court
Case Details
- 1 - NC: 2025:KHC:20346 W.P. No.36211/2019 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.36211/2019 (GM-CPC) Digitally signed by RUPA V Location: High Court of karnataka BETWEEN: MR. B.M. ADARSH AGED ABOUT 41 YEARS S/O LATE SRI. B.K. MANJUNATH AGRICULTURIST PERMANENT RESIDENT OF BELAGODU B. HOSAHALLI VILLAGE AND POST MUDIGERE TALUK CHIKMAGALURU DISTRICT-577133. (BY SRI. A.S. GIRISH, ADV.,) AND: 1. MR. B.D. RAVI AGED ABOUT 58 YEARS S/O B.E. DYAVANNA GOWDA AGRICULTURIST, BELAGODU B. HOSALLI VILLAGE AND POST MUDIGERE TALUK CHIKMAGALURU DISTRICT-577113. 2. SMT. I.N. KRISHNAMMA AGED ABOUT 78 YEARS S/O B.E. DYAVANNA GOWDA AGRICULTURIST, BELAGODU B. HOSALLI VILLAGE AND POST MUDIGERE TALUK CHIKMAGALURU DISTRICT-577113. …PETITIONER
Legal Reasoning
(BY SRI. CHIDAMBARA G.S. ADV.,) …RESPONDENTS - 2 - NC: 2025:KHC:20346 W.P. No.36211/2019 HC-KAR THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING ANNX-G PASSED IN O.S.157/16 BY HON'BLE CIVIL JUDGE AND JMFC MUDIGERE DTD 19.07.2019 AND KINDLY ALLOW THE I.A.NO.2 FILED BY THE PLAINTIFF ON 2.4.2019 BY ISSUANCE OF WRIT OR DIRECTION & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking the following reliefs: the Petitioner WHEREFORE most respectfully prays that this Hon'ble Court be pleased to Issue a Writ in the nature of certiorari quashing ANNEXURE in O.S.No.157/2016 passed by Hon'ble Civil Judge and JMFC Mudigere dated 19-7-2019 and kindly allow the I.A. No.2 filed by the plaintiff on 2-4-2019 by issuance of Writ or direction as this Hon'ble Court may pass in the circumstances of the case in the interest of justice and equity. "G" 2. Sri.A.S.Girish, learned counsel appearing for the petitioner submits that the petitioner filed a suit for declaration and permanent injunction against the defendants and in the said suit, the defendants, who are the adjacent property owners have filed a written statement. It is further submitted that after the death of - 3 - NC: 2025:KHC:20346 W.P. No.36211/2019 HC-KAR father of the petitioner, petitioner came to know that both the defendants are in illegal possession of the suit schedule property and the prayer for possession was not sought by inadvertence in the plaint. Hence, an application came to be filed seeking amendment of the paragraph of the plaint and additional prayer for possession. It is also submitted that the said application came to be opposed by the respondents. The trial Court considering the same, rejected the application under the impugned order on the ground that the proposed relief sought in the application would change the nature of the suit and the application is filed at a belated stage and without due diligence. It is submitted that the non-seeking of the prayer for possession was a bonafide mistake on the part of the petitioner and non-allowing of such application would lead to multiplicity of proceedings as the petitioner has the right to file another suit for possession and to avoid such further proceedings, it would be necessary to allow the application by setting aside the impugned order. - 4 - NC: 2025:KHC:20346 W.P. No.36211/2019 HC-KAR 3. Per contra, Sri.Chidambara G.S., learned counsel appearing for respondent Nos.1 and 2 supports the impugned order of the trial Court and submits that the specific averments made in the paragraph Nos.6 and 11 of the plaint state that the plaintiff is in possession of the suit schedule property and contrary to the said assertion now the amendment is sought claiming that the respondents are in possession of the suit schedule property. The respondents have already filed the written statement and taken their stand. There is a delay of more than four years in filing of such an application. The application is also hit by limitation. In support of his contention he placed his reliance on the following decisions of the Hon'ble Supreme Court and seeks to dismiss the petition. i) Shiv Gopal Sah alias Shiv Gopal Sahu v. Sita Ram Saraugi and Others1 ii) Sampath Kumar v. Ayyakannu and Another2 1 AIR 2007 SC 1478 - 5 - NC: 2025:KHC:20346 W.P. No.36211/2019 HC-KAR iii) Vishwambhar and Others v. Laxminarayan and Another3 4. I have heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondents and meticulously perused the material available on record. 5. The pleading and material available on record indicates that the petitioner has filed O.S.No.157/2016 for declaration and permanent injunction with regard to the suit schedule property. At paragraph Nos.6 and 11 of the plaint, the petitioner has averred that during the life time of the father of the petitioner and after his death plaintiff is in possession and enjoyment over the suit schedule property having right and title over the suit schedule property. In para 11, it is averred that the defendants being the adjacent owners of the suit schedule property took undue advantage after the death of the father of the
Decision
ORDER i) Writ petition is allowed. ii) Impugned order dated 19.07.2019 passed on IA.No.2 in O.S.No.157/2016 passed by the Principal Civil Judge and JMFC, Mudigere is set aside. Consequently, IA.No.2 filed under Order 6 Rule 17 by the petitioner is allowed. iii) The petitioner shall file amended plaint within a period of two weeks and the respondents are permitted to file additional written statement subject to the petitioner paying cost of Rs.5,000/- to the respondents. iv) It is made clear that insofar as question of limitation raised by respondent No.2 is kept open to be urged and adjudicated by the trial Court. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK List No.: 1 Sl No.: 36