Sri Puttaraju vs Sri S T Basavaraju
2022 Latest Caselaw 8671 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF JUNE 2022

                      BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

  WRIT PETITION NO.45821 OF 2018 (GM-CPC)

BETWEEN:

1.   SRI. PUTTARAJU
     S/O LATE RAME GOWDA,
     AGED ABOUT 58 YEARS

2.   SRI. SHIVARAJU
     S/O PUTTARAJU,
     AGED ABOUT 38 YEARS.

3.   SRI. RAMACHANDRA
     S/O PUTTARAJU,
     AGDD ABOUT 33 YEARS

     ALL ARE R/AT SANGARASHETTA HALLI,
     BETTADAPURA HOBLI,
     PERIYAPATNA TALUK - 571 107
     MYSORE DISTRICT
                                     ...PETITIONERS

(BY SRI. A MADHUSUDHANA RAO, ADVOCATE)

AND:

1 . SRI. S. T. BASAVARAJU
    S/O LATE RAMEGOWDA,
                          2




   AGED ABOUT 56 YEARS
   R/AT SANGARASHETTA HALLI,
   BETTADAPURA HOBLI,
   PERIYAPATNA TALUK - 571 107
   MYSORE DISTRICT

2 . SMT. SUNDRAMMA
    W/O PUTTARAJU,
    AGED ABOUT 53 YEARS
    SANGARASHETTA HALLI,
    BETTADAPURA HOBLI,
    PERIYAPATNA TALUK - 571 107
    MYSORE DISTRICT
                                    ....RESPONDENTS

(BY SRI. P.M. GOPI, ADVOCATE FOR
    SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR R-1
    R-2 SERVED AND UNREPRESENTED)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER FOUND AT ANNEXURE-N DATED
29.06.2018 PASSED BY THE LEARNED CIVIL JUDGE AND
JMFC IN I.A.NO.X PERIYAPATNA IN O.S.NO.73/2010 AND
ALLOW THIS WRIT PETITION WITH COSTS.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                     ORDER

The petitioners aggrieved by the order dated

29.06.2018, passed on I.A.No.10 in O.S.No.73/2010

by the Civil Judge & JMFC, Periyapatna, have filed this

writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

Respondent No.1 filed a suit for the relief of

permanent and mandatory injunction. The petitioners

filed written statement denying the averments made

in the plaint. Respondent No.1 filed an application in

I.A.No.10 seeking for amendment to the plaint. The

said application was opposed by the petitioners. The

Trial Court, after hearing the parties, allowed the

application vide order dated 29.06.2018. Hence this

writ petition.

3. Heard learned counsel for petitioners and

learned counsel for the respondent No.1.

4. Learned counsel for the petitioners submits

that I.A.No.10 was filed after commencement of trial.

He submits that the petitioners have not explained

that inspite of due diligence, respondent No.1 could

not raise the matter before commencement of trial.

In support of his submission, he places reliance on the

judgment of the Hon'ble Apex Court in the case of

PANDIT MALHARI MAHALE VS. MONIKA PANDIT MAHALE

& ORS. [(2020) 11 SCC 549]. He submits that the

order passed by the Trial Court is arbitrary and

contrary to the law laid down by the Hon'ble Apex

Court. He further submits that respondent No.1 is in

the habit of filing application after application to

amend the plaint. He has already filed applications in

I.A.Nos.3, 6, 7, 8 and 9 for amendment to the plaint.

The said applications are allowed and the instant

application is the 6th application filed by respondent

No.1. He further submits that if the application is

entertained, there will be no end to the litigation.

Hence, on these grounds, he prays to allow the writ

petition.

5. Per contra, learned counsel for the

respondent No.1 submits that a Court Commissioner

was appointed and he has submitted a report. After

perusal of the report, it has become essential for

respondent No.1 to make an application for

amendment of plaint. Hence, he submits that the

Trial Court was justified in passing the impugned

order. Hence he prays to dismiss the writ petition.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. It is not in dispute that the respondent No.1

initially filed a suit for the relief of permanent and

mandatory injunction. Petitioners filed written

statement denying the averments made in the plaint.

Respondent No.1 filed applications i.e., I.A.Nos.3, 6,

7, 8 and 9 seeking for amendment to the plaint. The

said applications came to be allowed by the Trial

Court. Later on, respondent No.1 filed the instant

application for amendment to the plaint i.e.,

I.A.No.10, after commencement of trial. From the

perusal of the application filed by respondent No.1,

respondent No.1 has nowhere pleaded in the

application that inspite of due diligence, respondent

No.1 could not raise the matter before

commencement of trial. The Trial Court, without

considering the proviso to Order VI Rule 17 CPC, has

allowed the application filed by respondent No.1. The

impugned order passed by the Trial Court is contrary

to the law laid down by the Hon'ble Apex Court in the

case of PANDIT MALHARI MAHALE (supra), wherein it is

held that if the party fails to explain due diligence,

then the application filed under Order VI Rule 17 of

CPC is liable to be dismissed.

8. In view of the above discussion and

considering the law laid down by the Hon'ble Apex

Court, I proceed to pass the following:

ORDER

The writ petition is allowed.

           The      impugned           order     dated
     29.06.2018, is set aside.          Consequently,
     I.A.No.10    filed   by    respondent     No.1   is
     dismissed.




                                         SD/-
                                        JUDGE


RD