Karnataka High Court
Mr Abdul Wahab Ansari vs Mr Y K Arase Gowda on 5 January, 2021
Author: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.13527 OF 2018 (GM-CPC)
BETWEEN
MR ABDUL WAHAB ANSARI,
AGED ABOUT 45 YEARS,
S/O. LATE. ABID ALI ANSARI,
R/AT NO. 440, R.V.ROAD,
BASAVANGUDI,
BENGALURU-560004. ... PETITIONER
(BY SRI SAINATH, ADVOCATE)
AND
MR Y K ARASE GOWDA,
AGED ABOUT 47 YEARS,
S/O. LATE. KEMPARASE GOWDA,
R/AT NO.38/1, 14TH CROSS,
22ND MAIN, PADMANABHANAGR,
BENGALURU-560070.
REPRESENTED BY HIS GPA HOLDER
MR. VENKATESH M.
AGED ABOUT 33 YEARS,
S/O. LATE. MUNIVENKATAPPA,
R/AT NO.498, C.J.V DAS ROAD,
PADMANABHANAGAR,
BENGALURU-560070. ... RESPONDENT
(BY SRI D K RAVINDRA & M DEVARAJA, ADVOCATES)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDERS DTD:21.2.2018 ON I.A.NO.7 PASSED
HON'BLE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
[CCH 44], BANGALORE CITY IN O.S.NO.2690/2012 AT
ANNEXURE-A.
2
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY THROUGH PHYSICAL HEARING,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner being the defendant in an injunctive suit in
O.S.No.2690/2012, is knocking at the doors of the Writ Court
for assailing the order dated 21.2.2018, a copy whereof is at
Annexure-A whereby the learned XLIII Addl. City Civil Judge
(CCH-44), Bangalore city, having favoured the application in
I.A.No.7 filed by the respondent-plaintiff u/o VI Rule 17 of
CPC, 1908, has accorded leave to amend the plaint for
converting the suit into one for declaration, as well.
2. After service of notice, the respondent-plaintiff
having entered appearance through his counsel, resists the
writ petition making submission in justification of the
impugned order and the reasons on which it has been
founded.
3. Having heard the learned counsel for the parties
and having perused the petition papers, this Court is inclined
to grant indulgence in the matter for the following reasons:
(a) The suit is for a decree of bare injunction; it was
filed on 11.4.2012; the petitioner-defendant resisted the suit
by filing his Written Statement on 13.6.2012; at paras 4, 5 &
6 of the Written Statement, petitioner has specifically denied
the title of the respondent-plaintiff narrating the facts and
mentioning the title deeds in his favour; however, the trial
went on and when it was half a through, the respondent-
plaintiff made the subject application only on 28.1.2017;
thus, not only such an application is barred under the
Proviso to Order VI Rule 17 of the amended code but also
there is enormous latches staring at the respondent; this
aspect having not been properly adverted to by the learned
Judge of the court below, there is an error apparent on the
face of the record warranting indulgence of Writ Court.
(b) The vehement contention of learned counsel for
the petitioner that the amendment could not have been
favoured by the court below since what is sought to be
introduced by way of such amendment is a claim for
declaration of title that was hopelessly time barred, appears
to be bit difficult to countenance; whether a claim for
declaration is barred by limitation or not is eminently a mixed
question of law & facts and therefore, ordinarily, a binding
finding cannot be entered while treating the application of the
kind; be that as it may.
In the above circumstances, this Writ Petition succeeds
and impugned order is invalidated; the subject application of
the respondent-plaintiff is rejected.
However, this judgment shall not come in the way of
respondent-plaintiff taking up an appropriate suit or other
proceeding for doing what he intended to do by way of subject
amendment of the plaint, in accordance with law.
All contentions of the parties including the limitation or
the like are kept open for being urged in such proceedings.
No costs.
Sd/-
JUDGE
cbc
