Karnataka High Court
Sri. Ananda R vs Bhavani Housing Co-Operative ... on 10 February, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.37972 OF 2013 (GM-CPC)
BETWEEN:
SRI. ANANDA R
S/O RAJANNA
AGED ABOUT 40 YEARS
RESIDING AT NO.10, KATHA NO.17/4
CORPORATION WARD NO.56
PADMANABHANAGARA DIVISION
BANGALORE SOUTH TALUK
BANGALORE
SINCE DECEASED BY HIS LRS.
1(a) SMT. PUSHPAMMA
W/O LATE MAYANNA
D/O LATE RAJANNA
AGED ABOUT 66 YEARS
1(b) SMT. LAKSHMI
W/O LATE LAKSHMANA
D/O LATE RAJANNA
AGED ABOUT 56 YEARS
1(c) SRI. SUBRAMANI
S/O LATE RAJANNA
AGED ABOUT 52 YEARS
2
1(d) SMT. VIJAYALAKSHMI
W/O YATHIRAJ
D/O LATE RAJANNA
AGED ABOUT 48 YEARS
LRS. OF DECEASED PETITIONER 1(a) TO 1(d)
ARE R/A No.399, 10TH CROSS,
SHASTRI NAGAR, BSK 2ND STAGE,
BANGALORE - 560028
...PETITIONERS
(BY SMT. Y P VIJAYA VASANTHA KUMARI, ADV.)
AND
1. BHAVANI HOUSING CO-OPERATIVE SOCIETY LTD.
NO.8239, UPSTAIRS,
BULL TEMPLE ROAD
NEXT TO UMA THEATRE,
CHAMARAJPET
BANGALORE-560018
2. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
BANGALORE - 560020
3. SRI RAGHU
S/O E VENKATA SUBBA NAIDU
R/A NO.126, YELLAPPA GARDEN
BANAGIRI NAGAR,
BANASHANKARI 3RD STAGE
BANGALORE - 560085
4. Y. NAGABHUSHANAM
S/O LATE E. SRINIVASALU NAIDU
OWNER OF SITE BEARING No.14/6
8TH BLOCK, BANASHANKARI 3RD STAGE
3
BANGALORE
ALSO AT No.111, YELLAPPA GARDEN
BANAGIRI NAGAR,
BANASHANKARI 3RD STAGE
BANGALORE - 560085
...RESPONDENTS
(BY SRI. M. UNNIKRISHNAN, ADV. FOR R2;
SRI. V. SHIVAKUMAR, ADV. FOR R3;
V/O DATED 22.03.2016, QUESTION OF
ISSUING NOTICE TO R1 DOES NOT ARISE;
R4 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER PASSED BY THE XXVII ADDL. CITY CIVIL
JUDGE, BANGALORE IN O.S. NO.3046/2002 ON ORDERS
ON I.A. NO.5 AND 6 DATED 23.7.2013 VIDE ANN-K AND
CONSEQUENTLY ALLOW THE SAID APPLICATIONS
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners aggrieved by the order dated
23.07.2013 passed on I.A.Nos.5 and 6 in
O.S.No.3046/2002 by the XXVII Additional City Civil
Judge, Bengaluru, filed this writ petition.
2. Brief facts leading rise to filing of this
petition are as under:
That petitioners filed a suit in O.S.No.3046/2002
against the respondents No.1 and 2. Later on
respondent No.3 was impleaded and the suit was
converted into a suit for declaration and possession.
The proposed respondent No.4 filed a suit in
O.S.No.3354/2004 against the petitioner, in respect of
the same property. During pendency of the suit, the
petitioner was dispossessed from a portion of suit
schedule property. The petitioner filed an application
for restitution. The said application was opposed by
the respondents. The Trial Court after hearing the
parties, rejected the application filed by the
petitioners. Hence, this writ petition.
3. Heard the learned counsel for petitioners
and also learned counsel for respondents.
4. Learned counsel for the petitioners submits
that the petitioners in order to avoid the multiplicity of
proceedings filed an applications for impleadment and
for amendment of plaint. The Trial Court rejected the
said applications. He further submits that the Trial
Court has committed an error in rejecting the
applications filed by the petitioners. Hence, on these
grounds, he prays to allow the writ petition.
5. Per contra, learned counsel for respondents
supports the impugned order.
6. It is not in dispute that the petitioners have
initially filed a suit for injunction against the
respondents No.1 and 2. Later on respondent No.3
was impleaded and the said injunction suit was
converted into a suit for declaration and possession.
The proposed respondent No.4 filed a suit in
O.S.No.3354/2004 against the petitioner, in respect of
the same property. During pendency of the suit, the
petitioner was dispossessed from a portion of the suit
schedule property. The said suit came to be decreed
vide judgment and decree dated 09.11.2011. The
petitioners aggrieved by the judgment and decree
passed in O.S.No.3354/2004 preferred appeal in
R.F.A. and the said appeal is pending for
consideration. The petitioners had filed earlier
application seeking for a relief of declaration and
possession and for addition of Para 6(a) to 6(c) by
way of amendment and the said application came to
be allowed. The petitioners were examined and
thereafter, matter is posted for defendants evidence.
The application for amendment of plaint is filed after
the commencement of trial. In order to consider the
case of the petitioners, it is necessary to consider
Order VI Rule 17, which read as under:
"17. Amendment of pleadings.- The
Court may at any stage of the proceedings
allow either party to alter or amend his
pleadings in such manner and on such
terms as may be just, and all such
amendments shall be made as may be
necessary for the purpose of determining
the real questions in controversy between
the parties:
Provided that no application for
amendment shall be allowed after the trial
has commenced, unless the Court comes to
the conclusion that in spite of due
diligence, the party could not have raised
the matter before the commencement of
trial."
As per the proviso to Order VI Rule 17 of C.P.C.,
no Court shall allow the application for amendment of
pleading after the commencement of trial, unless the
Courts come to conclusion that in spite of due
diligence, the parties could not raise the matter
before the commencement of trial.
7. From the perusal of the application filed by
the petitioners, the petitioners have not established
that in spite of due diligence, petitioners could not
able to raise the matter before the commencement of
trial. In view of the law laid down by the Hon'ble
Apex Court in the case of PANDIT MALHARI MAHALE VS.
MONIKA PANDIT MAHALE & ORS. [(2020) 11 SCC
549], no application for amendment of pleading can
be allowed, unless the parties establish that in spite
of due diligence the party could not have raised the
matter before the commencement of trial.
8. The petitioners is filing a successive
application for amendment. If, the application filed by
the petitioners are entertained, then there will be no
end to the litigation. The Trial Court, after considering
the material on record, is justified in passing the
impugned order. Hence, I do not find any grounds to
interfere with the impugned order. Accordingly, the
writ petition is dismissed.
SD/-
JUDGE
GRD
