Smt.Sangavva W/O Amarappa Nashi vs Good News Welfare Society
2022 Latest Caselaw 573 Kant

       IN THE HIGH COURT OF KARNATAKA
               DHARWAD BENCH

     DATED THIS THE 13th DAY OF JANUARY, 2022

                        BEFORE

 THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

     WRIT PETITION NO.102590/2018 (GM-CPC)

BETWEEN:

1.   Smt. Sangavva W/o. Amarappa Nashi,
     Aged about 68 years, Occ: Household,
     R/o. Akkihonda, Hubballi.

2.   Mallappa S/o. Amarappa Nashi,
     Aged about 48 years, Occ: Household,
     R/o.Akkihonda, Hubballi.

3.   Smt. Sujata D/o. Amarappa Nashi,
     @ Smt. Sujata W/o. Shivayogi Sangolli,
     Aged about 38 years,
     Occ: Household, R/o. Keshwapur,
     Hubballi post and taluk,
     Dharwad Dist.

4.   Sri. Gurusiddappa S/o. Amarappa Nashi,
     Aged about 37 years,
     Occ: Agriculture and Business,
     R/o. Keshwapur, Hubballi.

5.   Sri. Vishwanath S/o. Amarappa Nashi,
     Aged about 35 years, Occ: Agriculture
     and business, R/o. Keshwapur, Hubballi.

6.   Smt. Mangala D/o. Amarappa Nashi,
     @ Mangala W/o. Vijay Yalavatti,
                                               W.P.No.102590/2018


                             :2:


       Aged about 33 years, Occ: Household,
       R/o. Vidyanagar, Hubballi.
                                                 ... Petitioners
(By Sri. Sathish M.S., Advocate)

AND:

1.     Good News Welfare Society,
       Kalaghatagi represented by
       Its Administrative Officer presently
       Brother Niju Thomas, Aged about 40 years,
       R/o. Kalaghatagi.

2.     The Secretary,
       Pattan Panchayath, Kalaghatagi,
       Taluk: Kalaghatagi, Dharwad district

                                                ...Respondents

(Sri. Srinand A. Pachhapure, Advocate for R1;
R2- served)
                             ---


       This writ petition is filed under Articles 226 & 227 of
the Constitution of India, praying to (a) quash the order
dated 19.03.2018 passed by the Hon'ble Civil Judge and
JMFC, at Kalaghatagi in O.S.No.03/2010 as marked at
Annnexure-F, etc.,


       This petition coming on for Preliminary Hearing - B
group through physical hearing/video conferencing hearing
this day, the court made the following:
                                             W.P.No.102590/2018


                           :3:


                          ORDER

The present petitioners were the plaintiffs in

O.S.No.3/2010 on the file of Civil Judge & JMFC Court,

Kalaghatagi, (for brevity hereinafter referred to as 'the

trial Court'), which suit originally was filed for the relief

of permanent injunction against the present respondents

who were the defendants therein, seeking injunction

against them, restraining them from putting up any new

construction in the suit property. During the pendency of

the suit, an amendment was carried out in the plaint at

the instance of the plaintiffs. It is thereafter, when the

suit was said to be at its final stage and posted once

even for Judgment, the plaintiffs have come up with

I.A.No.23 under Order VI Rule 17 read with Section 151

of CPC, seeking permission to carry out the amendment

in the plaint, including the relief prayed for in the plaint.

The said application was opposed strongly by the

defendants. After hearing both sides, the trial Court by W.P.No.102590/2018

its impugned order dated 19.03.2018, dismissed the I.A.

filed under Order VI Rule 17 of CPC. Challenging the

said order, which is at Annexure-F, the plaintiffs in the

trial Court have preferred the present writ petition.

2. The respondent No.1 is appearing through its

counsel. The respondent No.2 though served with the

notice, has remained absent.

3. Heard the submission from both sides.

Perused the material placed on record, including the writ

petition and the impugned order.

4. It is not in dispute that originally the suit of

the present plaintiffs in O.S.No.3/2010 before the trial

Court was for the relief of injunction seeking restraining

the defendant No.1 therein, from putting up any

construction in the suit property and for a direction to

the defendant No.2 to cancel the licence granted in

favour of the defendant No.1. The same is evident in the W.P.No.102590/2018

plaint which is at Annexure-A. It is also not in dispute

that, during the pendency of the said suit, the plaintiffs

filed an amendment application seeking amendment of

the plaint incorporating a paragraph to the effect that

the defendants since have put up the construction, the

same is required to be demolished. Accordingly, an

additional prayer for demolition of the alleged

construction by the defendant No.1 was also sought in

the form of mandatory injunction. The said amendment

was also permitted to be carried out, as such, the plaint

has stood amended at the instance of the plaintiffs. It is

then, after leading the evidence and when the matter

after hearing final arguments once even posted for

Judgment, the plaintiffs are shown to have filed the

present application under Order VI Rule 17 of CPC which

is at Annexure-D, seeking once again the permission

to amend the plaint in the form of

incorporation of the paragraphs from Para 5(b) to 5(e).

W.P.No.102590/2018

In the said paragraphs the plaintiffs are intended to

incorporate certain pleading to the effect that their

earlier suit in O.S.No.243/1998 which was filed for

possession was ended in its incompleteness, as such,

there is great necessity for them to seek the possession

of the property, accordingly, they are intending to

amend the plaint. With the said proposed amendment,

they have also sought an amendment in the prayer

column seeking possession of the suit schedule property

from the defendant No.1 to them.

5. The said application was vehemently opposed

to and objected by the defendant No.1 who has filed his

statement of objection contending that the proposed

paragraph Nos.5(b) to 5(e) in the proposed amendment

of the plaint is nothing but repetition of the averments

of the plaint in O.S.No.243/1998, which suit has been

dismissed for non-prosecution long back. The defendant

also contended that, if the proposed amendment is W.P.No.102590/2018

allowed, the suit becomes barred under Order IX Rule 9

of CPC. The trial Court after hearing both sides, by its

impugned, order which is at Annexure-F, dismissed the

I.A. filed under Order VI Rule 17 of CPC, by the

plaintiffs. Aggrieved by the same the plaintiffs are before

this Court through this petition.

6. The learned counsel for the petitioners in his

brief arguments submitted that, when the plaintiffs are

entitled for the possession of the suit schedule property

in which the defendant has put up an illegal and

unauthorised construction, they had initially confined the

relief only for the relief of mandatory injunction,

however, since securing the possession by virtue of the

illegal construction put up by the defendant has arisen

for them, there is necessity for amending the plaint, as

such, the trial Court is at err in rejecting their

application.

W.P.No.102590/2018

7. Learned counsel for the respondent No.1

reiterated the contentions taken up by him in his

statement of objections and highlighted the fact that the

very same plaintiffs had earlier instituted a suit in

O.S.No.243/1998 with respect to the same suit schedule

property exclusively for the relief of possession which

ended in dismissal.

8. It is an admitted fact that, the present

petitioners had earlier instituted a suit against the

present respondent No.1 in O.S.No.243/1998 for the

relief of possession of the very same suit schedule

property. Admittedly, the said suit came to be dismissed

for non-prosecution. It is also an undisputed fact that

the plaintiffs made no attempts in getting the said order

of dismissal for non-prosecution recalled and getting the

original suit restored. On the other hand, subsequently

they filed the present suit in O.S.No.3/2010, however,

confining the relief only for permanent injunction at its W.P.No.102590/2018

inception and subsequently by amending the plaint and

including the prayer for the relief of mandatory

injunction also. Even though an amendment was

permitted and the plaintiffs were permitted to seek the

relief of mandatory injunction also, however, the

plaintiffs then also did not pray for the possession, who

at the time of filing O.S.No.243/1998 itself, were aware

of the fact that they are in requirement of the relief of

possession of the property. In such an event, even

though the cause of action for seeking the relief of

permanent injunction had arisen to them as long back

as in the year 1998 which they utilised by instituting a

suit in the form of O.S.No.243/1998, but, for the

reasons best known to them, they did not proceed to

pursue the suit and ensure its completeness and

disposal on its merits.

9. Admittedly, the said suit came to be

dismissed for non-prosecution, which order of the trial W.P.No.102590/2018

Court was not challenged or got recalled and the suit got

restored by the plaintiffs. On the other hand, once again

they instituted and initiated a fresh legal action against

the very same defendant for the relief of permanent

injunction and subsequently by amending the plaint,

incorporated the relief for the mandatory injunction also.

Even at that time also, they did not pray for the relief of

possession knowing fully well that they are entitled for

the alleged relief since long back and had made a futile

attempt in that regard. As such, the trial Court has

rightly observed that, allowing the application would

amount in permitting the plaintiffs to set up a new case

or a new cause of action, particularly when a suit on the

new cause of action is barred by limitation and an

attempt through O.S.No.243/1998 was earlier made by

the plaintiffs. Hence, I do not find any error, illegality,

irregularity or perversity in the said order warranting

any interference at the hands of this Court.

W.P.No.102590/2018

10. Accordingly, the petition stands dismissed as

devoid of merits.

Sd/-

JUDGE

*Svh/-