Sri. Rama Reddy vs Sri. R. Mukunda Reddy
2022 Latest Caselaw 4796 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF MARCH, 2022

                         BEFORE

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

    WRIT PETITION No.9305 OF 2017 (GM-CPC)


BETWEEN:

1. SRI.RAMA REDDY
S/O A.P.MUNIYAPPA
AGED ABOUT 52 YEARS

2. SRI.M.RAMESH
S/O LATE A.P.MUNIYAPPA
AGED ABOUT 43 YEARS

BOTH ARE R/A AGARA VILLAGE
SARJAPURA HOBLI
BENGALURU -560 034.                ..PETITIONERS

(BY SRI.L.VENKATARAMA REDDY, ADVOCATE)

AND:

1. SRI.R.MUKUNDA REDDY
S/O A.P.MUNIYAPPA
AGED ABOUT 52 YEARS

2. SRI.R.RAMA MURTHY
S/O R.MUKUNDA REDDY
DEAD BY L.RS.,

2(a) CHAMANTH REDDY
S/O LATE RAMA MURTHY
AGED ABOUT 11 YEARS
                                2
                                               W.P.No.9305/2017


2(b) KUM.KAVANA
D/O LATE RAMA MURTHY
AGED ABOUT 9 YEARS

REPRESENTED BY THEIR
GUARDIAN GRANDFATHER-
THE 1ST PLAINTIFF
R/AT NO.755, 16TH MAIN ROAD
3RD SECTOR, HSR LAYOUT,
BENGALURU

3. SRI.M.KRISHNA MURTHY
S/O R.MUKUNDA REDDY
AGED ABOUT 31 YEARS

ALL ARE R/A AGARA VILLAGE
SARJAPURA HOBLI,
BENGALURU -560 034.                     ..RESPONDENTS

(BY SRI.G.R.LAKSHMIPATHI REDDY, ADVOCATE FOR R-1, R-2
(a) and (b) AND R-3, R-2(a) & (b) ARE MINORS REPRESENTED
BY R-1)


                            ****
      This Writ Petition is filed under Article 227 of the
Constitution of India, praying to quash the order dated
07.02.2017 vide Annexure-G made in O.S.No.1175/1999
pending on the file of VII Additional City Civil Judge, (CCH
No.19), Bangalore.


      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 respondents as plaintiffs have initiated a

suit against the present petitioners arraigning them as

W.P.No.9305/2017

defendants 1 and 2 and also arraigning two more

defendants, for the relief of permanent injunction with

respect to the suit schedule property on 11.02.1999 in the

court of the learned VII Additional City Civil Judge, (CCH

No.19) at Bangalore (hereinafter for brevity referred to as

"the Trial Court") in O.S.No.1175/1999.

2. The present petitioners as defendants 1 and 2

appeared in the said suit and filed their written statement,

issues were framed by the trial court in the said suit and the

matter was posted for plaintiffs' evidence. However, due to

the reason of non-prosecution said suit came to be

dismissed for default on 24.09.2004. The plaintiffs by filing

miscellaneous petition No.762/2004 and the order passed in

the said miscellaneous petition dated 09.07.2010 got the

original suit restored on the file. Thereafter, plaintiffs filed

I.A.No.2 under Order VI Rule 17 read with Section 151 of

Civil Procedure Code on 09.03.2011. However, by

withdrawing the said I.A.No.2 on 04.03.2016 they filed

another similar I.A.No.6 under Order VI Rule 17 of

W.P.No.9305/2017

Civil Procedure Code seeking permission to amend the

plaint by incorporation of paragraph No.6(a) in the plaint

and also addition of `B' schedule to the suit schedule

property and addition of prayer 1(a) and 1(b) to the effect

of seeking the relief of mandatory injunction and delivery of

vacant possession of the `B' schedule property. The said

application was seriously disputed by defendants 1 and 2.

However, trial court by its impugned order dated

07.02.2017 allowed the said application with a cost of

Rs.1,000/- payable to the defendants. Challenging the said

order, the defendants 1 and 2 are before this Court through

this writ petition.

3. Learned counsel for the petitioners in his

arguments submitted that the conduct of the plaintiffs is

highly objectionable since from the year 1999 till date they

on one pretext or the other are stalling disposal of the suit

and by virtue of the proposed amendment, the plaintiffs are

adding a prayer for a new relief and also a different and

new property which totally changes the nature of the suit.

W.P.No.9305/2017

However, the trial court without considering these aspects

has erroneously allowed the said I.A.No.6. In his support,

learned counsel for the petitioners relied upon a Judgment

in the case of REVAJEETU BUILDERS AND DEVELOPERS

VS NARAYANASWAMY AND SONS AND OTHERS

reported in (2009) 10 SCC 84 and submitted that the

principles laid down in the said case has not been followed

by the trial court. He further submitted that the trial court

also did not consider that the relief of declaration prayed for

was belated, which ought not to have been allowed to be

incorporated as an additional prayer in the plaint.

4. Learned counsel for the respondents in his

arguments though conceded the fact as narrated by the

plaintiff upto the stage of filing of I.A.No.6, however,

submitted that the proposed amendment would in no

manner either introduce a new case or changes the nature

of the suit already filed. Though, the suit is filed for bare

injunction however by virtue of the subsequent

development which has taken place during the pendency of

W.P.No.9305/2017

miscellaneous petition, the plaintiffs were constrained to file

the amendment application in order to secure a portion of

the suit schedule property which was unauthorisedly

interfered by the defendants. Thus, the proposed

amendment was very much warranted in the case and

would not cause any prejudice to the interest of the

defendants.

5. In Revajeetu case (supra) the Hon'ble Apex Court

has summed up the basic principles which are required to

be taken into consideration while allowing or rejecting an

application for amendment. Those principles are enunciated

in paragraph No.67 of the Judgment which reads as below:

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

1. Whether the amendment sought is imperative for proper and effective adjudication of the case?

W.P.No.9305/2017

2. Whether the application for amendment is bonafide or malafide?

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."

6. In the proposed amendment, the application of

which I.A.No.6 is produced at Annexure-E herein, shows

that in the proposed paragraph 6(a) the plaintiffs have

stated that during the pendency of the miscellaneous

petition No.762/2004 for restoration of the

suit more particularly in

W.P.No.9305/2017

the month of December, 2010 defendants 1 and 2 tress

passed into the suit schedule property on the eastern side

to the extent of East to West 60 feet and North to South 40

feet and put up a shed and compound in the absence of

plaintiffs. The plaintiffs came to know about the illegal act

of defendants in the second week of January, 2011 and

questioned their proprietary rights. Defendants 1 and 2

threatened the plaintiffs claiming that said property tress

passed by them which property is described in `B' schedule

as belonging to them. This has constrained them to seek

amendment to the pleading. The more details in that

regard has been given by the applicant in the sworn

affidavit accompanying the application.

7. No doubt, the original suit as instituted in the first

instance was for the relief of bare injunction with respect to

the suit schedule property which according to plaint is

property bearing Khaneshumari No.176, Agara Village,

Sarjapur Road, Bengaluru -34, measuring East to West 60

feet and North to South 380 feet the boundary mentioned in

W.P.No.9305/2017

the plaint. The`B' schedule which the plaintiffs sought for

impleading in the plaint is shown to be a portion of the

property bearing Khaneshumari No.176, Agara Village,

Bengaluru -560 034, measuring East to West 60 feet and

North to South 40 feet. The northern boundary of the said

property is shown to be remaining land in the very same

Khaneshumari No.176. Thus, it is clear that `B' schedule

property is a portion of `A' schedule property. Though the

plaintiffs have not specifically mentioned `B' schedule is a

portion of `A' schedule, however, schedule to the `A' and

`B' properties and description given in the plaint makes it

clear `B' schedule property is the one which is alleged to

have been tress passed by the defendants during the

pendency of the miscellaneous petition No.762/2004.

Thus, it is subsequent development which is said to have

taken place during the pendency of miscellaneous petition

No.762/2004, which the plaintiffs have attempted to place

on record in the form of the amendment.

Therefore, the contention of the petitioners that the

inclusion of `B' schedule property

W.P.No.9305/2017

introduces totally a different property than the one which

was shown as `A' schedule property is unfounded one.

8. The plaintiffs through his application has explained

as to what made them to include `B' schedule property and

he has categorically stated in paragraph 6(a) which was

supposed to be included in the plaint that during the

pendency of miscellaneous petition No.762/2004,

defendants 1 and 2 tress passed into the schedule property

on the eastern side and put up a shed and compound in the

absence of the plaintiffs. Thus, with respect to the suit

schedule (`A' schedule) since certain developments are

alleged to have taken place by the acts of very same

defendants 1 and 2 that too during the pendency of a

litigation in the court, though in the form of miscellaneous

petition No.762/2004, the plaintiffs cannot be found fault

with in bringing it to the notice of the court by seeking an

amendment of the plaint. Since according to plaintiffs, a portion

of the original `A' schedule property said to have been encroached by

then existing defendants 1 and 2 by their alleged act of tress

W.P.No.9305/2017

pass into the property, the plaintiff was also constrained to

pray for the relief of mandatory injunction and the delivery

of vacant possession of the `B' schedule property. Thus,

the proposed amendment cannot be termed either as

making out a new case for the plaintiffs or bringing certain

facts on record which were already in the notice and

knowledge of the plaintiffs at time of filing of the suit. It

cannot be called that the proposed amendment is for any

malafide reason. Similarly by carrying out amendment, no

prejudice would be caused to the defendants since they

would get an opportunity to file their additional written

statement, if they feel so, and to contest the matter which

according to them they were doing hither to. Thus, since

the proposed amendment does not fundamentally change

the nature or character of the suit and it does not make out

a new case for the parties but brings certain alleged

subsequent development on record which appears to have

been necessitated the plaintiffs to place on record in the

form of amendment, the trial court cannot be found fault

with allowing the application i.e.,

W.P.No.9305/2017

I.A.No.6 by exercising its discretionary power. Such

exercise of discretionary power cannot be called as arbitrary

exercisal of discretionary power. I do not find any reason to

interfere. Accordingly, writ petition is dismissed.

Since the original suit is said to be of the year 1999

the early disposal of the original suit by the trial court not

later than six months from today would be highly

appreciated. The parties to this writ petition by placing a

certified copy of this order before the trial court

immediately in the next date of hearing before the trial

court are required to co-operate with the trial court in the

early disposal of the suit.

Sd/-

JUDGE

SBN