Writ Petition No. 52140 of 2019 · The High Court
Case Details
- 1 - NC: 2025:KHC:4171 WP No. 52140 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 52140 OF 2019 (GM-CPC) BETWEEN: SRI. SADANANDA R, W/O LATE RAMANNA, AGED ABOUT 55 YEARS, R/O NO.604, PARVATHI NAGAR, LAGGERE MAIN ROAD, BENGALURU - 58. (BY SRI. SHIVAYOGESHA SHIVAYOGIMATH, ADVOCATE) …PETITIONER AND: SMT. SUSHEELAMMA, W/O LATE ESHWARAPPA, AGED ABOUT 67 YEARS, R/O NO.506, 1ST MAIN ROAD, PREETHINAGAR, LAGGERE BENGALURU - 58 …RESPONDENT
Legal Reasoning
(BY SRI. H.K. PAVAN, ADVOCATE) THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ON IA NO.V/2019 DATED 14.10.2019 PASSED BY LEARNED XXVII ADDL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-9) IN O.S.NO.8021/2017 VIDE ANNEXURE-E AND ETC., Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:4171 WP No. 52140 of 2019 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the orders passed on I.A.No.5 in O.S. No.8021/2017 dated 14.10.2019 by the XXVII Addl. City Civil and Sessions Judge, Bengaluru (CCH-9), the plaintiff is before this Court. 2. The plaintiff had filed the instant IA under Order VI Rule 17 to amend the paint. it is his case that he is the owner in position and occupation of the property site bearing No.123A, Assessment No.6, khata No.59 situated at Laggere Village, Yeshwanthapura Hobli, Bangalore North Taluk. At the time of filing of the suit, due to oversight and typographical error, the property number in the plaint in para No.2 in the line No.3 was wrongly mentioned as 121-A instead of 123-A and further, in the schedule property, western side boundary was wrongly mentioned as Conservancy and thereafter, site No. 160/2 instead of site No.160/2. Accordingly, they have filed the - 3 - NC: 2025:KHC:4171 WP No. 52140 of 2019 present application seeking amendment to the same. The Court had dismissed the application observing that on perusal of the entire records, it is clear that the suit of the plaintiff is one for permanent injunction against the defendant from interfering with the peaceful possession and enjoyment of the property. Already the issues are framed in the case and the case was posted for further chief examination of D.W.-1. At this juncture, this application is filed by the counsel for the plaintiff for amendment of the plaint as well as the boundary. As rightly contended by the counsel for the plaintiff pre trial amendment are normally allowed and any application filed after commencement of the evidence will not be allowed. In the present instance, already the matter was posted for cross- examination of D.W.-1. Further, the plaintiff in the amendment application sought for the change of the survey number as well as sought for the change of the boundary. If at all this application is allowed, certainly it will change the entire nature of the case and also once again additional issues have to be framed for the purpose of leading the additional evidence of the plaintiff. Accordingly, dismissed the application filed by the plaintiff. Aggrieved thereby, the plaintiff is before this Court. - 4 - NC: 2025:KHC:4171 WP No. 52140 of 2019 3. Learned counsel appearing for the plaintiff submits that according to the plaintiff, he has purchased the property by way of a registered sale deed dated 12.02.2004. In the registered sale deed, the boundaries and the survey numbers are mentioned and he is asserting his title and possession to the property by virtue of the said sale deed. When it comes to the plaint, the said survey number & boundary was wrongly mentioned. Thereafter, they have filed an application for seeking amendment of the plaint. Learned counsel submits that if the said amendment is not allowed, it would cause lot of prejudice to the plaintiff and that aspect was not considered by the trial Court and had dismissed the application. He submits the order needs to be set aside. 4. Learned counsel appearing for the defendant submits that after defendant No.1 was cross examined, at that stage, this application is filed. Now by virtue of this amendment, they are altogether introducing a new case and it would change the entire nature of the suit and it would cause prejudice to the plaintiff. He submits that once when an application under Order VI Rule 17 is filed after the commencement of the trial, the burden lies on the plaintiff to - 5 - NC: 2025:KHC:4171 WP No. 52140 of 2019 show that in spite of due diligence, all these aspects were not brought to the notice of the Court. He submits that in the affidavit, he has not stated anything and without there being such a pleading and for the lapses on the part of the plaintiff, the defendant cannot be punished and it would cause lot of hardship and prejudice to the defendant. He had relied on the judgment of the Apex Court in the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale and others1 and he has relied on paragraph No.8, which reads as under: 8. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order2of the High Court as well as of the Civil Judge, the amendment application stands dismissed. Relying on this judgment, learned counsel submits that the Court had rightly dismissed the application and no grounds are made out. 1 Reported in (2020)11 SCC 549. 2 Pandit Malhari Mahale v. Monika Pandit Mahale, 2018 SCC OnLine Bom 11687. - 6 - NC: 2025:KHC:4171 WP No. 52140 of 2019 5. Having heard the learned counsel on either side, perused the material on record. The present application is filed seeking amendment under Order VI Rule 17. The suit is filed seeking injunction mentioning the survey number and the boundaries. After the commencement of trial, the plaintiff has come up with this application, where he has sought to amend the plaint by changing the survey number and the boundaries. According to him, it is a typographical mistake. This Court has perused the sale deed, basing on which, he is asserting his title to the property. In the sale deed, the survey number and the boundaries that are mentioned is the same thing which he wants to introduce by way of an amendment. No doubt that these steps should have been taken by him with regard to this typographical mistake at an earliest point of time. Here in this case, it does not amount to introducing a new case for the reason that the whole basis of his pleading is his title to the property basing on a registered sale deed and now the boundaries and other things what he is mentioning is basing on the survey numbers, the recitals and the boundaries that are mentioned in the said sale deed. After the commencement of trial, the burden lies on the plaintiff to show that in spite of due - 7 - NC: 2025:KHC:4171 WP No. 52140 of 2019 diligence, he could not bring all these facts to the notice of the Court, at the same time, the courts have to look at the substantial justice and prejudice to the other side and when the pleadings itself are based on the said sale deed and this amendment that is sought is in consonance with that, this Court is of the view that the Court ought to have allowed the application. Hence, this Court is passing the following:
Decision
ORDER (i) The order dated 14.10.2019 passed on I.A.No.5 in O.S.No.8021/2017 by the XXVII Addl. City Civil and Sessions Judge, Bengaluru (CCH-9) is set aside. Consequently, I.A.No.5 filed by the plaintiff is allowed, on the condition that he shall pay an amount of ₹5000/- (Rupees Five Thousand only) as cost to the defendant. (ii) The Writ Petition is disposed of. (iii) All IAs., in this Writ Petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE KA List No.: 1 Sl No.: 45 CT: BHK