Sri S Prashanth vs Smt Padmarajamma
2022 Latest Caselaw 4111 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF MARCH, 2022

                              BEFORE

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

    WRIT PETITION No.16672 OF 2017 (GM-CPC)

BETWEEN:

1. Sri.S. Prashanth
S/o. late Sri.S. Somu
Aged about 35 years
Proprietor
Siddaiah Auto Garage
Old No.19/3, new No.30/3
14th Main Road, T.R. Nagar,
Bengaluru - 560 028.

2. Sri. S. Deepak
S/o. late Sri. S. Somu
Aged about 33 years,
R/at old No.19/3
New No.30/3, 14th Main Road,
T.R. Nagar, Bengaluru - 560 028.
                                       ..   Petitioners
(By Sri. R.B. Sadasivappa, Advocate)

AND:

1. Smt. Padmarajamma,
D/o. late Sri. Venkataramachar,
Aged about 72 years.

2. Smt. Rukmini Devi
D/o. late Sri. Venkataramachar
Aged about 61 years
                                  2
                                               W.P.No.16672/2017


3. Dr. Vinay Narayan Pandith
S/o. late Sri. Narayan Pandith
Aged about 35 years

4. Sri. Ajay Pandith
S/o. late Sri Narayan Pandith
Aged about 34 years

Respondents 1 to 4 are
R/at No.1379, 24th Cross
24th Main, BSK 2nd Stage
Bengaluru - 560 070.
                                               .. Respondents

(By Sri. G. Papi Reddy, Senior Counsel for
Sri. Vinod Reddy V., Advocate for R-1 to R-3;
Notice to R-4 - dispensed with v/o.dt.28-06-2017)

                              ****
      This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue writ in the nature of
certiorari quashing the impugned order dated 23-02-2017
passed by the 5th Additional City Civil Judge, Bengaluru on the
application filed under Order 6 Rule 17 r/w. Section 151 of CPC
in O.S.No.909/2014 vide Annexure-A , etc.

      This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:

                           ORDER

The present petitioners are plaintiffs in

O.S.No.909/2014 in the Court of the learned V Additional

City Civil Judge, at Bangalore City (CCH-13) (hereinafter for

brevity referred to as "the Trial Court"), which suit was filed

W.P.No.16672/2017

against the present respondents, arraigning them as

defendants for the relief of bare injunction.

2. During the pendency of the suit, at pre-trial stage,

the application seeking permission for amendment of the

plaint by the plaintiffs which was filed under Order VI, Rule

17 read with Section 151 of the Code of Civil Procedure,

1908 (hereinafter for brevity referred to as "the CPC"),

came to be rejected by the impugned order dated

23-02-2017. Aggrieved by the same, the plaintiffs in the

Trial Court are before this Court as petitioners.

3. The learned counsel for the petitioners/plaintiffs in

his argument submitted that, admittedly, recording of

evidence has not yet begun in the Trial Court, as such, it is

a pre-trial application filed in the Trial Court by the

plaintiffs, which would not change the nature of the suit.

He submitted that, the proposed amendment was very

much essential for the plaintiffs to put forth the true facts

before the Court for its complete adjudication and rendering

justice. As such, the application of the plaintiffs ought not

W.P.No.16672/2017

to have been rejected by the Trial Court, which, however,

wrongly holding that the proposed amendment would

change the circumstances of the case and it was also not

necessary to carryout such amendment, has rejected their

application, which warrants interference by this Court.

In support of his contention, the learned counsel for

the petitioners/plaintiffs relied upon few judgments of the

Hon'ble Apex Court, which would be referred to at an

appropriate stage.

4. Per contra, learned counsel for the respondents

No.1 to 3/defendants, in his argument submitted that, the

specific reason as to why the amendment is required, has

not at all been stated by the petitioners. In the guise of

amendment, the plaintiffs are attempting to place an

alleged piece of evidence in the form of pleading which is

not permissible. However, the said alleged piece of

evidence may be confronted to the competent witnesses

from the defendants' side in their cross-examination by the

plaintiffs.

W.P.No.16672/2017

With this, relying upon the judgment of the Hon'ble

Apex Court reported in (2009) 10 Supreme Court Cases 84,

the learned counsel for the respondents No.1 to 3 submitted

that, the impugned order passed by the Trial Court does not

warrant any interference at the hands of this Court.

5. It is not in dispute that, the suit between the

parties is for a bare injunction with respect to an immovable

property. It is also not in dispute that, the recording of

evidence has not yet commenced in the Original Suit, from

which the present petition has arisen. It is at that stage,

the application was filed, which, according to the

respondents, two years after the institution of the suit,

seeking amendment of their pleading. The summary of the

amendment proposed to be incorporated in the plaint is

mainly by the addition of a paragraph as paragraph 13(a),

after paragraph 13, wherein, the plaintiffs are intending to

submit about the defendant No.3 filing a Police complaint

against the plaintiffs wherein he is said to have admitted

the possession of the suit schedule property by the plaintiffs

W.P.No.16672/2017

since the year 1989. The Trial Court, observing that the

said amendment is an attempt to bring out the new case in

the case of the plaintiffs and it introduces new set of facts

and also that the said amendment is not necessary for the

adjudication of the matter, has dismissed their application

seeking amendment.

6. In the judgment relied upon by the learned counsel

for the respondents No.1 to 3, which is the judgment

rendered in the case of Revajeetu Builders and Developers

Vs. Narayanaswamy and Sons and others reported in

(2009) 10 Supreme Court Cases 84, the Hon'ble Apex

Court, at paragraph 63 of its judgment, was pleased to lay

down certain principles which are required to be taken into

consideration while allowing or rejecting the application for

amendment. Those principles are as below:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

W.P.No.16672/2017

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

It is keeping the above principles in mind, the case on

hand is required to be analysed.

7. Admittedly, the application seeking permission for

amending the plaint has been filed by the plaintiffs in the

Trial Court, before commencement of the trial. It is the

contention of the learned counsel for the petitioners/

plaintiffs that, a pre-trial amendment could not be generally

rejected. In this connection, the learned counsel for the

petitioners has relied upon a judgment of the Hon'ble Apex

Court in the case of Rajkumar Gurawara (Dead) Thr. L.Rs.

W.P.No.16672/2017

Vs. M/s. S.K. Sarwagi and Co. Pvt. Ltd and Anr. reported in

AIR 2008 Supreme Court 2303. In the said case, with

respect to Order VI, Rule 17 of the CPC, particularly, the

amendment sought at the pre-trial stage, the Hon'ble Apex

Court was pleased to observe that, the amendments are to

be allowed liberally than those which are sought to be made

after the commencement of the trial.

8. The Trial Court has observed that the amendment

sought for, if permitted, would change the nature of the

case. The Hon'ble Apex Court, in its judgment in the case

of Surender Kumar Sharma Vs. Makhan Singh reported in

AIR 2009 SC (Supp) 2671, was pleased to observe that, in

the case before it, the suit was for eviction on the ground of

arrears of rent. After verifying the nature of amendment,

the Hon'ble Apex Court allowed the amendment sought for,

observing that even if it is carried out, the suit would still

remain for eviction, as such, refusal of the amendment on

the ground that it changes the nature of the suit, was

improper.

W.P.No.16672/2017

9. In the instant case also, admittedly, the suit

instituted at the first instance was for the relief of bare

injunction. The proposed amendment would neither add

nor subtract any of the reliefs sought for in the plaint, as

such, the nature of the plaint for the relief of bare

injunction, remains un-altered. Needless to say, the

proposed amendment, would, in no way, introduce any new

element which may give rise to a new right to the plaintiffs

to pray for any other relief/s which has not already been

prayed for in the plaint. As such, the question of the

proposed amendment, if allowed, changing the nature of

the suit, would not arise.

10. However, the Trial Court, without considering the

said aspect and without even giving any reasons as to how

the proposed amendment would change the nature of the

case has simply observed that, the proposed amendment, if

allowed, would change the nature of the case, which finding

is bereft of any reasoning, thus prove to be unsustainable.

The proposed amendment, summary of which has been

W.P.No.16672/2017

mentioned above, would only go to show that, prior to the

filing of the suit, what had transpired in the matter, wherein

the defendant No.3 is alleged to have filed a Police

complaint with certain allegations including the one that the

plaintiffs are shown to have been in possession of the

property by putting up a garage in the suit schedule

property. No doubt, that may act as a piece of evidence in

favour of the plaintiffs at a later stage, but without there

being any basis of plaint averment, the said evidence also,

if brought directly at the stage of evidence, it would be the

defendants, at first, who would raise an objection to that

effect. As such, the contention of the learned counsel for

the respondents/defendants that the said piece of evidence

can be confronted to the defendants' witnesses at the

appropriate stage, cannot be accepted. On the other hand,

since the applicants have shown in their application the

reason as to why the alleged fact could not be brought at

the earliest point of time in their pleading. The merit of the

alleged proposed amendment at paragraph 13(a) cannot be

analysed or appreciated at this stage and as such, the

W.P.No.16672/2017

proposed amendment in the form of incorporation of

paragraph 13(a) and amendment to paragraph 13 of the

plaint ought not to have been rejected by the Trial Court.

When the Trial Court, while considering the application

filed by the plaintiffs under Order VI Rule 17 of the CPC, has

failed to exercise its jurisdiction properly and proceeded to

assume certain things on its own in the absence of there

being no material for the same. As observed by the Hon'ble

Apex Court in the case of Sajjan Kumar Vs. Ram Kishan

reported in (2005) 13 Supreme Court Cases 89 which

judgment was relied upon by the learned counsel for the

petitioners, such errors are liable to be corrected by the

High Court, in exercise of its supervisory jurisdiction.

Thus, the impugned order now having proved to be an

erroneous order and rejection of the plaintiffs' application

seeking permission for amendment being erroneously

rejected by the Trial Court, the same deserves to be

quashed and the application deserves to be allowed.

W.P.No.16672/2017

Accordingly, I proceed to pass the following:

ORDER

[i] The Writ Petition is allowed.

[ii] The impugned order dated 23-02-2017,

passed by the learned V Additional City Civil

Judge, Bangalore, on the application filed under

Order VI, Rule 17, read with Section 151 of the

Code of Civil Procedure, 1908, in

O.S.No.909/2014, is quashed.

Consequently, the interlocutory application

filed by the plaintiffs under Order VI, Rule 17

read with Section 151 of the Code of Civil

Procedure, 1908, in the Trial Court, stands

allowed.

Sd/-

JUDGE

BMV*