Sri. Seebi Narasimhaswamy Temple vs State Of Karnataka
2021 Latest Caselaw 5718 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8TH DAY OF DECEMBER 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD

        WRIT PETITION NO.22378/2021 (GM-CPC)


BETWEEN :

1.      SRI. SEEBI NARASIMHASWAMY TEMLPLE
        CHAIKKASEEBI VILLAGE,
        BELLAVI HOBLI,
        TUMKUR TALUK AND DISTRICT 572128,
        REPRESENTED BY ITS
        SHEBAITH AND HEREDITARY
        DHARMAKARTHA
        SRI KARNIKNALLAPPA

2.      SRI KARNIK NALLAPPA
        S/O LATE T.K.LAKSHMINARASAIAH,
        AGED ABOUT 89 YEARS,
        SHEBAITH AND HEREDITARY
        DHARMAKARTHA OF
        SRI.SEEBINARASIMHASWAMY TEMPLE,
        CHIKKASEEBI VILLAGE,
        BELLAVI HOBLI,
        TUMKUR TALUK AND DISTRICT 572128
                                     .... PETITIONERS

(BY SRI. A MADHUSUDHANA RAO, ADVOCATE)
AND :

1.      STATE OF KARNATAKA
        REPRESENTED BY ITS
        PRINCIPAL SECRETARY,
                          2



     DEPARTMENT OF REVENUE,
     M.S.BUILDING,
     BANGALORE-560001.

2.   THE DEPUTY COMMISSIONER
     TUMKUR DISTRICT,
     TUMKUR 572101.

3.   THE ASSISTANT COMMISSIONER
     TUMKUR SUB DIVISION,
     TUMKUR 572101.

4.   THE TAHSILDAR
     TUMKUR TALUK,
     TUMKUR 572101.
                                    ... RESPONDENTS

(BY SRI. ARUNA SHYAM, AAG A/W
    SMT. H.R.ANITHA, HCGP FOR R1 TO R4)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
IMPUGNED ORDER DATED 27.11.2021 PASSED BY THE
LEARNED ADDITIONAL SENIOR CIVIL JUDGE, TUMKUR IN
O.S.NO.10/2011 PRODUCED AT ANNX-H ALLOW THIS
WRIT PETITION WITH COSTS AND GRANT SUCH OTHER
RELIEFS AS THIS HONBLE COURT DEEMS FIT IN THE
CIRCUMSTANCES OF THIS CASE.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
                                     3




                          ORDER

Sri. A.Madhusudhana Rao, learned counsel for the

petitioners and Sri. Aruna Shyam, learned Additional

Advocate General, are heard with their consent for final

disposal of the petition.

2. The petitioners, who are the plaintiffs in

O.S.No.10/2011 on the file of the Additional Senior Civil

Judge and CJM, Tumakuru (for short, 'the civil Court'),

which is remanded by a Division Bench of this Court in

R.F.A.No.568/2012 for reconsideration with liberty to

the respondents to file written statement, have

impugned the civil Court's order dated 27.11.2021. The

civil Court by this order has rejected the petitioners'

application under Order VI Rule 17 of the Code of Civil

Procedure, 1908 (for short, 'the CPC').

3. The facts necessary for the disposal of this

petition are that the petitioners succeeded in their suit

in O.S.No.10/2011 when it was decreed by judgment

dated 17.12.2011. The respondents have impugned this

judgment before a Division Bench of this Court in

R.F.A.No.568/2012. The Division Bench has allowed

the appeal setting aside the judgment and decree dated

17.12.2011 and remanding the matter for

reconsideration with liberty to the respondents to file

their written statement. The Division Bench has also

directed the civil Court to dispose of the suit in an

expedited manner leaving all contentions of the parties

open for consideration by the civil Court. The

petitioners have approached the Hon'ble Supreme Court

and the petitioners' petition in SLP.No.17403/2021 is

disposed of by the Hon'ble Supreme Court with the

following directions:

"(a) Pending disposal of the suit, the defendants in the suit are restrained from interfering with the peaceful possession and enjoyment of the property;

(b) The entire controversy shall be considered by the Trial Court at the earliest and without being influenced in any manner by any of the observations made by the High Court during the Course of the order which is presently under challenge."

4. The respondents, after the orders of the Division

Bench, have filed their written statement and the

petitioners, after the disposal of the aforesaid SLP, have

filed their present application under Order VI Rule 17 of

CPC to amend the plaint. The civil Court has rejected

this application essentially on the ground that the

petitioners' application would be for amendment after

the evidence which cannot be permitted, and there is

also inordinate delay in filing the application. The civil

Court has also observed that the application is filed in a

mechanical manner to drag the proceedings.

5. Sri. A. Madhusudhana Rao, submits that the

petitioners have filed their application for amendment

referring to certain proceedings which are after the civil

Court's judgment and the pleadings in this regard

would be necessary in the light of the written statement

now filed. He further submits that the civil Court could

not have rejected the application either on the ground of

delay or on the ground that its application are filed after

the commencement of trial in the facts and

circumstances of the case, and he asserts that the

observation that the application is filed mechanically

only with an intention to drag the proceedings, is

unjustified. He also canvasses that the petitioners will

not be able to meet the respondents' contentions

without necessary pleadings in this regard and the

pleadings are only to refute the respondents' assertions

to bring forth the controversy for adjudication.

6. Sri. Aruna Shyam, while not disputing that the

civil Court's observation that the application is filed

mechanically could be harsh given the circumstances

of the case, submits that the petitioners are trying to

take advantage of certain proceedings for the first time

after the written statement is filed. The petitioners are

not entitled to take such a new plea and therefore, this

Court must not intervene. He also submits that if this

Court is persuaded to intervene, the respondents must

have the liberty to file additional written statement

contending inter alia that the petitioners' belated plea by

way of an amendment cannot overwhelm the

respondents' defence.

7. The civil Court ought to have examined the

merits of the petitioners' application in the light of

circumstances that are peculiar to the case viz., the suit

being restored for reconsideration with liberty to the

respondents to file written statement. The civil Court

should have also considered that amendment to the

pleadings are not barred under all circumstances if trial

is commenced, and it would be open to the Courts to

allow amendments that are necessary for effective and

complete adjudication of the real dispute. The

petitioners' application is for brining on record certain

subsequent proceedings and to meet the respondent's

plea. These averments should enable a complete

adjudication. This Court is of the considered view that

the civil Court, in overlooking these circumstances, has

committed an error that would justify interference by

this Court.

Therefore, the petition is allowed and the

impugned order dated 27.11.2021 in O.S.No.10/2011

on the file of the Additional Senior Civil Judge and CJM,

Tumakuru is quashed allowing the petitioners'

application under Order VI Rule 17 of CPC to amend the

plaint with liberty to the respondents to file additional

written statement.

SD/-

JUDGE

RB