Smt T Rajeevi vs Sri K N Chandrashekar Reddy
2022 Latest Caselaw 9791 Kant

                           1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28 TH DAY OF JUNE, 2022

                        BEFORE

  THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

            R.F.A.NO.1187 OF 2021 (INJ)
BETWEEN
SMT. T. RAJEEVI
W/O LATE C. V. BHASKAR WARRIER,
AGED ABOUT 70 YEARS,
R/A G-2, BLOCK NO.16, RK APARTMENTS,
HOYSALA NAGAR, T C PALYA MAIN ROAD,
RAMAMURTHY NAGAR,
BENGALURU-560 016.

REPRESENTED BY GPA HOLDER
SRI. DINESH THAZHEPATH.
                                            ...APPELLANT
(BY SRI. YESHU BABA R. MISHRA, ADVOCATE)

AND

SRI. K. N. CHANDRASHEKAR REDDY
S/O LATE K. M. NANJA REDDY,
AGED ABOUT 50 YEARS,
R/A NO.07, MEG LAYOUT,
A NARAYANA PURA,
BENGALURU-560 016.

ALSO AT: HOUSE NO.10,
13TH CROSS, 1ST A MAIN ROAD,
VIGNANA NAGAR, KAGGADASAPURA,
BENGALURU-560 075.
                                           ...RESPONDENT
(BY SRI. B.G. FAYAZSAB, ADVOCATE )

     THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER
41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 01.09.2021 PASSED IN OS No.6121/2016 ON THE FILE
OF THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
                                      2

BENGALURU,        DISMISSING         THE       SUIT   FOR   PERMANENT
INJUNCTION.
     THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THROUGH PHYSICAL HEARING, THE COURT DELIVERED THE
FOLLOWING:

                            JUDGMENT

This appeal by the unsuccessful plaintiff in

O.S.No.6121/2016 is directed against the impugned

judgment and decree dated 01.09.2021 passed in

O.S. No.6121/2016 on the file of the learned III

Additional City Civil and Sessions Judge, Bengaluru

City (for short "the trial Court") whereby the said suit

filed by the appellant-plaintiff for permanent

injunction restraining the respondent-defendant from

interfering with the appellant's possession and

enjoyment of the suit schedule immovable property

was dismissed by the trial Court.

2. A perusal of the material on record

including the impugned judgment and decree will

indicate that the appellant instituted the aforesaid suit

against the respondent-defendant on 23.08.2016.

Along with the suit, the plaintiff filed an application,

I.A.No.1 for ad interim exparte temporary injunction

against the respondent restraining him from

interfering with the appellant's possession and

enjoyment over the suit schedule property. On

25.08.2016, the trial Court passed an ad interim

exparte order of exparte temporary injunction in

favour of the appellant. The order sheet maintained

by the trial Court indicates that the said interim order

was being extended from time to time. On

07.02.2019, the trial Court extended the said interim

order of temporary injunction in favour of the plaintiff

against the defendant until further orders.

3. Subsequently, during the course of trial,

the plaintiff filed an application under Order 39 Rule

2A CPC alleging willful disobedience by the defendant

of the order of temporary injunction and another

application seeking police protection to implement the

said order. On 13.07.2021, the trial Court directed

the said applications to be registered as separate

miscellaneous proceedings. Subsequently, on

04.08.2021, the plaintiff filed one more application

under Section 151 CPC for a direction to the

defendant to demolish the shed and to restore

possession of the suit schedule property to the

plaintiff. By order dated 10.08.2021, the trial Court

directed the said application to be decided along with

the main suit. Thereafter, on 01.09.2021, the trial

Court proceeded to pass the impugned judgment and

decree dismissing the suit filed by the appellant-

plaintiff, who is before this Court by way of the

present appeal.

4. In the present appeal, appellant-plaintiff

has filed an application, I.A.No.1/2022 under Order VI

Rule 17 CPC seeking amendment of the plaint by

incorporating additional reliefs' of declaration of title,

recovery of possession and permanent injunction

against the respondent-defendant in respect of the

suit schedule property. In the proposed amendment,

appellant-plaintiff also seeks to incorporate

corresponding pleadings in this regard by adding

paragraphs 19 to 21 to the plaint. The said

application, I.A.No.1/2022 is contested by the

respondent.

5. Heard learned counsel for the appellant and

learned counsel for the respondent and perused the

material on record.

6. In addition to reiterating the various

contentions urged in the Memorandum of Appeal and

referring to the documents produced by the appellant,

learned counsel for the appellant submits that the trial

Court committed an error in not taking any steps

pursuant to the order dated 07.07.2021 directing the

Registry of the trial Court to register the applications

for disobedience and police protection filed by the

appellant as a separate miscellaneous proceedings. It

is submitted that the trial Court also erred in not

passing any orders on the application dated

04.08.2021 filed by the appellant-plaintiff seeking

restoration of possession from the respondent-

defendant. It is further submitted that the material

on record clearly indicates that the appellant-plaintiff

was the absolute owner in lawful and peaceful

possession and enjoyment of the suit schedule

property and that the defendant did not have any

manner of right, title, interest or possession over the

same and failure to appreciate this has resulted in

erroneous conclusion. Lastly, it is submitted that

having regard to the specific contention urged by the

appellant-plaintiff before the trial Court as well as the

trial Court that the respondent-defendant has illegally,

high handedly and willfully disobeyed the order of

temporary injunction that was in force in the suit and

dispossessed the plaintiff from the suit schedule

property during the pendency of the suit, the

appellant-plaintiff has filed I.A.No.1/2022 seeking to

amend the plaint by incorporating comprehensive

reliefs along with corresponding amendments to the

body of the plaint, which are relevant and essential to

adjudicate upon the issues in controversy between the

parties and as such, the said application,

I.A.No.1/2022 deserves to be allowed and the matter

be remitted back to the trial Court for reconsideration

afresh in accordance with law.

7. Per contra, learned counsel for the

respondent, in addition to supporting the impugned

judgment and decree submits that there is no merit

either in the appeal nor in the application,

I.A.No.1/2022 and the suit schedule property is

owned and possessed absolutely by the respondent-

defendant over which the plaintiff has not right and

her claim has been correctly rejected by the trial

Court. It is submitted that I.A.No.1/2022 is highly

belated and lacks bonafides and the same being

barred by limitation is liable to be dismissed. It is

therefore submitted that the impugned judgment and

decree passed by the trial Court does not warrant

interference by this Court in the present appeal and

I.A.No.1/22 is also devoid of merit and the same are

liable to be dismissed.

8. The following points arise for my

consideration in this appeal:

i. Whether the appellant has made out sufficient grounds to allow I.A.No.1/2022 filed by her under Order VI Rule 17 CPC for amendment of the plaint?

ii. Whether the impugned judgment and decree passed by the trial Court warrants interference in the present appeal?

Re. point No.i:

9. The material on record discloses that the

appellant-plaintiff instituted the suit for permanent

injunction inter alia contending that the defendant was

interfering with her possession and enjoyment of the

suit schedule property. When the matter was posted

before the trial Court on 05.07.2021, the appellant

filed two applications viz., under Order 39 Rule 2A

CPC alleging disobedience committed by the

defendant and under Section 151 CPC for police

protection. Subsequently, on 05.08.2021, the plaintiff

filed one more application seeking restoration of

possession to her from the defendant by directing him

to demolish the illegal and unauthorised shed put up

by him on the suit schedule property. In all the

aforesaid applications and affidavits, it was specifically

contended that taking advantage of the Covid-19

pandemic exigency, defendant had disobeyed the

order of temporary injunction and had dispossessed

the appellant from the suit schedule property and had

put up illegal and unauthorised shed. It is the

grievance of the appellant that the trial Court had

neither disposed of the aforesaid applications nor

taken any steps to treat the same as miscellaneous

petition despite a specific order in this regard.

10. The said applications and contentions urged

by the appellant are opposed by the defendant, who

has not only filed objections to the same but also

asserts that he has always been in possession and

enjoyment of the suit schedule property.

11. In this backdrop, a perusal of the proposed

amendment will indicate that the same reads as

under:

"Proposed Amendment:

To add after prayer a)

a1) To declare the Plaintiff is the absolute owner of the suit schedule property;

a2) To direct the Defendant to hand over vacant physical possession of the suit schedule property to the plaintiff;

a3) To grant a decree by way of permanent injunction to restrain the Defendant from alienating the suit schedule property;

Add para 19 to 21:

19. This Hon'ble Court was pleased to grant ex-

parte temporary injunction in favour of the Plaintiff vide order dated 25.08.2016 and upon hearing both parties vide order dated 08.03.2019, this Hon'ble Court was pleased to extend the order of temporary injunction till further orders. The Defendant misusing the first nationwide lockdown due to COVID- 19, in violation of the injunction order, proceeded to construct sheds in the suit schedule property and disposed the Plaintiff in violation of the injunction order.

20. It is submitted that the Plaintiff immediately preferred an application under Order 39 Rule 2A to initiate proceedings for violation of the interim order. This Hon'ble Court without considering the same, kept the said application pending and did not proceed to pass any order on the same and posted the matter for final arguments. This Hon'ble Court upon hearing both parties was pleased to dismiss the above suit vide judgment dated 01.09.2021 on the ground that the plaintiff has failed to produce documents to show that Site No.40 is part and parcel of Sy.No.77/1 as the recital in the sale deed does not disclose the survey number, that

no documents have been produced to show that land in Sy.No.77/1 was converted for non-agricultural residential purpose and that the vendor of the Plaintiff had formed approved layouts in Sy.No.77/1.

21. The Plaintiff has produced Khata Certificate, Khata extract issued by City/Town Municipal Corporation, H A Sanitary Board, Bengaluru, Khata endorsement issued by KR Puram City Municipal Corporation, Khatha extract issued by KR Puram City Municipal Corporation, BBMP Certificate, Assessment Extract issued by BBMP and Tax Paid Receipts. All of the said documents clearly mention that Site No.40 is carved out of Sy.No.77/1 in Kaggadasapura, KR Puram Hobli. Hence, there is no ambiguity whatsoever that the suit schedule property is part and parcel of Sy.No.77/1"

12. A perusal of the proposed amendment

sought for by the appellant-plaintiff and the

averments made in the accompanying affidavit will

indicate that it is her specific contention that during

the pendency of the suit, despite there being an order

of temporary injunction, taking advantage of the

prevailing Covid-19 pandemic, the defendant had

dispossessed the plaintiff from the suit schedule

property. The proposed amendment clearly discloses

that the same relates to pleadings as regards

subsequent events that have occurred during the

pendency of the suit and additional pleadings with

regard to the alleged title of the plaintiff and by

incorporating necessary reliefs in the suit.

13. A perusal of the entire material on record

including the proposed amendment will clearly

indicate that the proposed amendment is necessary

and essential to adjudicate upon the issues in

controversy between the parties, particularly when

there is a serious dispute with regard to the right,

title, interest and possession as well as the identity

and location of the suit schedule property put forth by

both sides. Further, the proposed amendment will not

in any way cause prejudice to the defendant nor take

away any right accrued in his favour by lapse of time

and the same will not in any way change or alter the

nature or character of the suit or its cause of action,

particularly when no prejudice would be caused to the

respondent-defendant who would be entitled to file his

additional written statement to the amended plaint.

In so far as the contention of the defendant that the

proposed amendment is barred by limitation is

concerned, the interest of the defendant can be

adequately safeguarded and protected by directing

that the proposed amendment shall not relate back to

the date of the suit but that the proposed amendment

shall be reckoned from the date of filing the

application by the appellant i.e., on 24.05.2022 and

by leaving open the question of limitation to be

decided by the trial Court. Under these circumstances,

I am of the considered opinion that the application

I.A.No.1/2022 filed by the appellant-plaintiff deserves

to be allowed.

Point No.i is accordingly answered in favour of

the appellant and I.A.No.1/2022 is allowed.

Re. point No.ii

14. After having allowed I.A.No.1/2022, the

next question that arises for consideration is the

procedure to be followed for disposal of the appeal.

As stated supra, upon the plaint being amended, the

respondent-defendant would be entitled to file his

additional written statement to the amended plaint,

pursuant to which both parties would be entitled to

adduce further oral and documentary evidence and

also cross-examine the other side and his/her

witnesses. So also, additional issues would have to be

framed in the suit by the trial Court pursuant to the

amended plaint and additional written statement.

Further, in addition to disposing off the suit afresh,

the trial court would also have to take necessary steps

to decide the application filed by the appellant-plaintiff

under Order 39 Rule 2-A CPC. Under these

circumstances, I am of the view that in the light of

I.A.No.1/2022 being allowed and several disputed

issues/questions of fact and law as well as contentious

issues that would arise for consideration between the

parties upon conversion of the suit for bare injunction

simpliciter into a comprehensive suit for declaration,

possession and injunction, it would be just and

appropriate to set aside the impugned judgment and

decree and remit the matter back to the trial Court for

reconsideration afresh in accordance with law by

leaving open all questions including limitation to be

decided by the trial Court.

Point No.2 is also answered accordingly.

15. In the result, I pass the following:

ORDER

i. The appeal is hereby allowed.

ii. The impugned judgment and decree

dated 01.09.2021 passed in

O.S. No.6121/2016 on the file of the

learned III Additional City Civil and

Sessions Judge, Bengaluru City is

hereby set aside and the matter is

remitted back to the trial Court for

reconsideration afresh in accordance

with law.

iii. Without expressing any opinion on the

merits and demerits on the rival

contentions urged in the suit, the

present appeal as well as on

IA.No.1/2022 and without prejudice to

the rights and contentions of the

parties, IA.No.1/2022 is hereby

allowed and appellant is permitted

amend the plaint as sought for in

I.A.No.1/2022, subject to the condition

that the amendment shall not relate

back to the date of the suit, but shall

be reckoned from the date of filing the

application i.e., 24.05.2022.

iv. Liberty is reserved in favour of the

respondent to file additional written

statement to the amended plaint.

v. All rival contentions between the

parties including contentions with

regard to the limitation etc., are kept

open, to be decided by the trial Court

afresh in accordance with law.

vi. The trial Court is directed to dispose of

the suit as well as the application filed

by the appellant-plaintiff under Order

39 Rule 2-A CPC in accordance with

law as expeditiously as possible.

vii. Both parties undertake to appear

before the trial Court without

awaiting further notice from the

trial Court on 11.07.2022.

viii. Liberty is reserved in favour of parties

to file suitable interlocutory application

before the trial Court, which shall be

considered by the trial Court in

accordance with law.

Sd/-

JUDGE JY/BMC