Sri M N Arun Kumar vs Sri Madappa
2022 Latest Caselaw 5182 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF MARCH, 2022

                           BEFORE

        THE HON'BLE MR. JUSTICE E.S.INDIRESH

           W.P. NO.12252 OF 2020 (GM-CPC)

BETWEEN

SRI M N ARUN KUMAR
AGE 39 YEARS
S/O LATE P.NARAYANA AND
SMT. VIJAYALAKSHMI,
R/AT NO.1622, 5TH CROSS,
HOSAKERI, K.R. MOHALLA,
MYSURU-570001
                                            ...PETITIONER
(BY SRI CHANDRASHEKAR P PATIL, ADVOCATE)

AND

SRI MADAPPA
AGED ABOUT 45 YEARS
S/O LATE MADE GOWDA
AGED ABOUT 45 YEARS
R/AT NO.2378/2,
NEW KANTHARAJ URS ROAD,
K.G. KOPPAL,
MYSURU-570001
                                           ....RESPONDENT
(BY SRI V SRINIVAS, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 29.01.2020 PASSED BY THE LEARNED III
                                   2




ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE IN
O.S.NO.859/2017 ON I.A.NO.2 PRODUCED AS ANNEXURE-E.

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


                               ORDER

This Writ Petition is filed by the plaintiff in Original Suit No.

859 of 2017 (Old No. 166 of 2017) on the file of the III

Additional Senior Civil Judge and CJM, Mysuru challenging the

order dated 29.01.2020 passed on IA.2.

2. Brief facts are that, plaintiff has filed a suit for

declaration with consequential relief of possession directing the

defendants to deliver the possession of the plaint 'B' schedule

property. The said suit was resisted by the defendant by filing

the written statement. In the meanwhile, the plaintiff filed

application-IA.2 under Order VI Rule 17 of Code of Civil

Procedure, and sought certain amendment in the plaint. The said

application was resisted by the defendant. The trial Court, after

considered material on record, by order dated 29.01.2020

dismissed the application. Feeling aggrieved by the same, the

plaintiff has preferred this Writ Petition.

3. I have heard Sri Chandrashekar P. Patil, learned

counsel appearing for the petitioner and Sri V. Srinivas, learned

counsel appearing for the respondent.

4. Sri Chandrashekar P. Patil, learned counsel

appearing for the petitioner argued that the finding recorded by

the trial Court that the plaintiff has taken new plea in the

proposed amendment is not correct. He further submitted that

application for amendment is filed before the commencement of

evidence and therefore, same has to be considered liberally. In

that view of the matter, he places reliance on the judgment of

the Hon'ble Apex Court in the case of Revajeetu Builders and

Develpers vs. Narayanaswamy and sons and others

reported in (2009) 10 SCC 84 and accordingly, sought

interference in this petition.

5. Per contra, Sri V. Srinivas, learned counsel appearing

for the respondent drew the attention of the court to the

paragraph 16 of the written statement and argued that, if the

proposed amendment is allowed, it will prejudice the right of the

defendant. Accordingly, he submitted that the trial Court has

rightly, dismissed the application filed by the plaintiff.

6. Having heard the learned counsel appearing for the

parties, I have carefully considered the averments made in the

plaint, wherein, the plaintiff has sought for relief of declaration

with consequential relief of possession, mandatory and

permanent injunction. On careful examination of averments

made in the written statement reveals that, the defendant

pleaded that the disputed portion to an extent of 20x152 feet is

belong to the him and considering the said averment in the

written statement, I have considered the proposed amendment

sought in the application produced at Annexure- C to the Writ

Petition. The plaintiff had averred in the proposed amendment

that he is in possession and enjoyment of the said property, and

therefore, incorporating the new plea in the proposed

amendment, which could enlarge the scope of the relief sought

for in the suit and on the other hand, if the said amendment is

allowed, definitely, it will prejudice the right of the defendant as

per paragraph 16 of the written statement. In that view of the

matter, I find force in the arguments advanced by the learned

counsel appearing for the respondent as the finding recorded by

the trial Court that the said amendment will change the earlier

pleadings of the plaint. Hence, I do not find any material

illegality in the order passed by the trial Court. Accordingly, Writ

Petition is dismissed.

Sd/-

JUDGE

SB