Smt Gowramma vs Smt Kandamma
2022 Latest Caselaw 11378 Kant

                            1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF AUGUST, 2022

                         BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

     WRIT PETITION NO.15541 OF 2022 (GM-CPC)

BETWEEN:

1.    SMT. GOWRAMMA
      W/O LATE DASAPPA
      AGED ABOUT 69 YEARS

2.    SMT. MAHADEVAMMA
      W/O LATE KUMAR
      AGED ABOUT 45 YEARS

3.    ANJU
      D/O LATE KUMAR
      AGED ABOUT 30 YEARS

4.    LAKSHMI
      D/O LATE KUMAR
      AGED ABOUT 28 YEARS

5.    SRI. LOKESH
      S/O LATE KUMAR
      AGED ABOUT 26 YEARS

      PETITIONER NO.1(a), 1(b)(a) TO 1(b)(d)
      ARE RESIDING NO.431, KANAKANAGARA,
      J.P. NAGARA POST,
      KANAKAPURA MAIN ROAD
      BENGALURU-560078

6.    SMT. NAGAMMA
      D/O LATE DASAPPA
      W/O SHIVARAMU
      AGED ABOUT 50 YEARS
                              2




7.     SMT. SUNDRAMMA
       S/O LATE DASAPPA
       W/O MAHADEVA
       AGED ABOUT 49 YEARS

8.     SMT. JAYA
       D/O LATE DASAPPA
       W/O MANJUANTH
       AGED ABOUT 39 YEARS

9.     SMT. VANAJA
       D/O LATE DASAPPA
       W/O MAHADEVA
       AGED ABOUT 37 YEARS

10.    SRI. SRINIVASA
       S/O LATE DASAPPA
       AGED ABOUT 35 YEARS

       ALL ARE RESIDING AT
       KODIPALYA GUNDUTHOPU,
       HOSUR POST, BIDADI HOBLI,
       RAMANAGARA TALUK,
       RAMANAGARA DISTRICT,
       PIN CODE-562109.
                                   ...PETITIONERS
(BY SRI. SHIVASWAMY, ADVOCATE)

AND:

1.     SMT. KANDAMMA
       W/O LATE PERUMAL,
       AGED ABOUT 65 YEARS
       R/A KODIPALAY GUNDUTHOPU,
       HOSUR POST, BIDADI HOBLI,
       RAMANAGARA TALUK,
       RAMANAGARA DISTRICT,
       PIN CODE-562109.

2.     RAJESHWARI
       D/O LATE PERUMAL
       AGED ABOUT 48 YEARS
       R/A KODIPALYA GUNDUTHOPU,
                          3




     HOSUR POST, BIDADI HOBLI,
     RAMANAGARA TALUK,
     RAMANAGARA DISTRICT,
     PIN CODE: 562109.

3.   SRI. KALAIAH
     S/O PERUMAL
     AGED ABOUT 49 YEARS
     R/A KODIPALYA GUNDUTHOPU,
     HOSUR POST, BIDADI HOBLI,
     RAMANAGARA TALUK,
     RAMANAGARA DISTRICT,
     PIN CODE: 562109.

4.   SRI NARASHIMA MURTHY
     S/O PERUMAL
     AGED ABOUT 47 YEARS,
     R/A KODIPALYA GUNDUTHOPU,
     HOSUR POST, BIDADI HOBLI,
     RAMANAGARA TALUK,
     RAMANAGARA DISTRICT,
     PIN CODE: 562109.

5.   SRI. GOVINDA RAJU
     S/O PERUMAL
     AGED ABOUT 45 YEARS
     R/A KODIPALYA GUNDUTHOPU,
     HOSUR POST, BIDADI HOBLI,
     RAMANAGARA TALUK,
     RAMANAGARA DISTRICT,
     PIN CODE: 562109.

6.   SRI. NAGENDRA
     S/O PERUMAL
     AGED ABOUT 43 YEARS
     R/A KODIPALYA GUNDUTHOPU,
     HOSUR POST, BIDADI HOBLI,
     RAMANAGARA TALUK,
     RAMANAGARA DISTRICT,
     PIN CODE: 562109.
                                        ...RESPONDENTS

(BY SRI. P. BASAVARAJU, ADVOCATE FOR RESPONDENT NO.5)
                               4




      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR RECORDS FROM THE HON'BLE ADDITIONAL CIVIL JUDGE
(JR.DN) AND JMFC AT RAMANAGARA, RAMANAGARA DISTRICT
IN O.S.NO.102/2013 AND SET ASIDE THE ORDER DATED
19.07.2022 PASSED BY THE HON'BLE ADDITIONAL CIVIL JUDGE
(JR.DN.) AND JMFC AT RAMANAGARA, RAMANAGARA DISTRICT
IN O.S.NO.102/2022 VIDE ANNEXURE-E AS ILLEGAL AS IT
RELATES TO REJECTION OF I.A.NO.21 FOR SEEKING
AMENDMENT OF PRAYER AND ETC.

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

                             ORDER

The petitioners are the legal representatives of the

deceased plaintiff in O.S.No.102/2013 on the file of the

Additional Civil Judge and J.M.F.C., Ramanagara

(hereinafter referred to as 'trial Court' for short), who have

challenged an order dated 19.07.2022, by which, an

application was filed by the plaintiff under Order VI Rule 17

of the Code of Civil Procedure (hereinafter referred to as

'CPC' for short) was rejected.

2. The parties shall henceforth be referred to as

they were arrayed before the trial Court.

3. The suit in O.S.No.102/2013 was filed for

declaration of title of the plaintiff to the suit schedule

property and for perpetual injunction restraining the

defendants from interfering with the peaceful possession

and enjoyment of the plaintiff over the suit schedule

property. The plaintiff asserted in the plaint that the

defendants had "wrongfully and illegally encroached

towards western side and had put up cement block house".

The plaintiff had also enclosed the photographs showing

the encroached portion. However, the plaintiff did not seek

for the relief of recovery of the possession of encroached

portion. The defendants contested the suit. When the case

was listed for arguments, the plaintiff engaged another

lawyer, who advised the plaintiff to file an application to

amend the plaint to seek the relief of demolition of the

construction put up by the defendants and to recover

possession of the encroached portion. Based on such

advise, at the stage of reply arguments of the plaintiff, an

application was filed to amend the plaint and to

incorporate the relief of mandatory injunction to direct the

defendants to demolish the encroached legal construction

and to deliver vacant possession of the encroached

portion. The trial Court rejected this application on the

ground that the same was filed belatedly. It also held that

the plaintiff was not diligent in not seeking the amendment

before issues were framed.

4. Being aggrieved by the said order, the plaintiff

has filed this writ petition.

5. Learned counsel for the plaintiff submitted that

the requisite pleadings to support the relief of mandatory

injunction and recovery of possession is already there in

the plaint and the amendment was required to formally

introduce the reliefs in the plaint, which would not affect

the defendant in any manner whatsoever. He also

undertook not to lead any oral evidence in support of the

reliefs that is proposed to be inserted by way of

amendment. He would further submit that the reliefs

sought to be introduced by way of amendment, is only

consequential and is subject to the plaintiff demonstrating

title to the suit schedule property.

6. Per contra, learned counsel for the defendant

submitted that a perusal of the application for amendment

itself discloses that the construction was put up as on the

date of the suit and therefore, it was incumbent upon the

plaintiff to have sought for relief of recovery of possession,

which the plaintiff failed. He submitted that the plaintiff

cannot now seek for the amendment that too at the

penultimate stage of the suit.

7. It is no doubt true that an application for

amendment cannot be entertained at the fag end of the

proceedings and the plaintiff is bound to exercise all due,

care and caution, while seeking the reliefs in the suit. In

the present case, the plaintiff has already pleaded about

the encroachment by the defendants and also the

construction that was put up by them in the encroached

portion. Therefore, the plaintiff was bound to seek the

consequential relief of recovery of possession of the

encroached portion. Since the relief sought to be

introduced by way of amendment is consequential in

nature and since the said relief is essential for fully and

finally adjudicating the dispute between the parties and

also since the application is filed well within the time

prescribed under the law of limitation, it is appropriate to

allow the application by compensating the defendants for

the delay in the adjudication of the suit. This would also

meet the ends of justice.

8. In that view of the matter, though the

reasoning assigned by the trial Court is unexceptionable

but yet since the plaintiff deserves a final opportunity, the

writ petition is allowed. Consequently, the impugned

order passed by the trial Court is set aside. The application

filed by the plaintiff under Order VI Rule 17 of CPC is

allowed, subject to payment of cost of Rs.10,000/-

(Rupees Ten Thousand only) payable by the plaintiff to the

contesting defendant No.4.

It is made clear that the plaintiff shall not lead any

oral evidence in support of the reliefs that are introduced

by way of amendment. The trial Court shall permit the

plaintiff to amend the suit reliefs.

It is open for the defendants to file their written

statement to the amended plaint and the trial Court may

proceed to pass judgment based on the available pleadings

and evidence.

Sd/-

JUDGE

NR/-