Karnataka High Court
Smt. Bhagyamma vs Sri. Kariyappa on 22 June, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.9324 OF 2021 (GM-CPC)
BETWEEN:
1. SMT. BHAGYAMMA
W/O. LATE SRI. SAVANDAYYA,
AGED ABOUT 67 YEARS,
2. SRI. B. S. PRASANNA KUMAR
S/O. LATE SRI. SAVANDAYYA,
AGED ABOUT 41 YEARS,
BOTH ARE R/AT DODDAVADAGERE VILLAGE,
MADHURE HOBLI,
DODDABALLAPURA TALUK,
BENGALURU RURAL DISTRICT.
...PETITIONERS
(BY SRI. R B SADASHIVAPPA, ADVOCATE)
AND:
1. SRI. KARIYAPPA
S/O LATE SRI. ANJINAPPA,
AGED ABOUT 75 YEARS.
2. SRI. ANJANKUMAR
S/O SRI. KARIYAPPA,
AGED ABOUT 42 YEARS,
2
BOTH ARE R/AT DODDAVADAGERE VILLAGE,
KANNAMANGALA POST
MADHURE HOBLI,
DODDABALLAPURA TALUK,
BENGALURU RURAL DISTRICT.
3. SRI. VENKATACHALAIAH
S/O. LATE SRI. VENKATAPPA,
AGED ABOUT 75 YEARS,
R/AT NO. 21, 9TH MAIN,
15TH CROSS, SUBBARAJU LAYOUT,
BENGALURU-560 030.
....RESPONDENTS
(BY SRI. N. SHIVAKUMAR, ADVOCATE FOR
SRI. CHETAN B.R., ADVOCATE FOR R-1 TO R-3)
------
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 29.02.2020 PASSED BY THE
PRINCIPAL CIVIL JUDGE AND JMFC, DODDABALLAPURA
ON IA FILED UNDER ORDER 6 RULE 17 OF CPC VIDE
ANNX-E AND CONSEQUENTLY PERMIT THE PETITIONER TO
AMEND THEIR PLAINT AS SOUGHT FOR IN THE
APPLICATION VIDE ANNX-C.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
3
ORDER
The petitioners/plaintiffs aggrieved by the order
on the interlocutory application dated 29.2.2020
passed in O.S.No.389/2013 by the Principal Civil
Judge and JMFC, Doddaballapur, have filed the
present writ petition.
2. Brief facts leading rise to filing of this petition
are as under:
The petitioners filed a suit in O.S.No.389/2013
for the relief of permanent injunction. The respondent
filed written statement denying the averments made
in the plaint. The Trial Court framed the issues and
posted the matter for recording evidence of the
petitioners. The petitioners before commencement of
the evidence, filed an application seeking to amend
the plaint. The said application was opposed by the
respondent. The Trial Court after hearing the parties
rejected the application filed by the petitioners.
Hence, this writ petition.
3. Heard learned counsel for petitioners and
learned counsel for respondent.
4. Learned counsel for the petitioners submits
that as the petitioners have filed the suit for bare
injunction now, by virtue of the proposed amendment,
they want to seek the relief of declaration. He further
submits that the application is filed before
commencement of trial and places reliance on
judgment of the Hon'ble Apex Court in ABDUL REHMAN
& ANR. VS. MOHD. RULDU & ORS., reported in 2012
AIR SCW 5419; (2012) 11 SCC 341 wherein the
Hon'ble Apex Court has held that an application for
amendment has to be considered liberally if it is filed
before commencement of trial. Hence, on these
grounds, he prays to allow the writ petition.
5. Per contra, learned counsel for the
respondent submits that the Trial Court was justified
in passing the impugned order. He further submits
that the application was filed when the case was
posted for evidence. He further submits that the
petitioners have not shown sufficient cause that in
spite of due diligence, they could not raise the issue.
Hence, on these grounds, he prays to dismiss the writ
petition.
6. Perused the records and considered the
submissions made by learned counsel for the parties.
7. The petitioners filed a suit in
O.S.No.389/2013 for the relief of permanent
injunction against the respondent. The respondent
filed written statement denying the averments made
in the plaint. The petitioners filed an application
seeking amendment to the plaint. The petitioners by
way of proposed amendment is seeking the relief of
declaration by way of easementary right by necessity
and mandatory injunction. The petitioners have filed
the application only with an intention to avoid uncalled
multiplicity of litigation. The purpose and object of
Order VI Rule 17 CPC is to minimize the litigation,
minimize the delay and to avoid multiplicity of suits.
Therefore, it has been included to do justice and not
shut out justice merely on technicality of pleadings.
The Courts should decide the merits of the cases that
comes before it and should consequently allow all
amendments that may be necessary for determining
the real question in controversy between the parties
provided it does not cause injustice.
7.1. In the present case, the petitioners have
filed the application seeking amendment before
commencement of trial. Further, the petitioners have
shown sufficient cause seeking for amendment of the
plaint before commencement of their evidence. As the
proposed amendment is necessary for determining the
real question in controversy between the parties, if
the application for amendment is allowed, no injustice
would be caused to the respondent as the respondent
can be compensated by costs. Therefore, when the
application seeking amendment is filed before
commencement of trial, the said application has to be
considered liberally in view of the law laid down by the
Hon'ble Apex Court in the case of ABDUL REHMAN
supra.
7.2. In view of the above discussion, the
impugned order passed by the Trial Court is arbitrary
and the same is liable to be set aside.
8. Hence, I proceed to pass the following order :
ORDER
i) The writ petition is allowed;
ii) The impugned order dated 29.2.2020
passed in O.S.No.389/2013 by the Principal
Civil Judge and JMFC, Doddaballapur is set
aside;
iii) Accordingly, the interlocutory application
filed by the petitioners is allowed subject to
payment of cost of Rs.5000/- payable by
the petitioners to the respondent on the
next date of hearing before the Trial Court.
SD/-
JUDGE
rs
