Karnataka High Court
Sri.M.Krishna Rao vs Sri.M.Manjunatha on 23 May, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.1927 OF 2018 (GM-CPC)
BETWEEN:
1. SRI.M. KRISHNA RAO
S/O LATE V. VENKATA RAO
AGED ABOUT 68 YEARS
R/A NO.10, BABU BUILDING
BSK II STAGE, KATTRIGUPPE
MAIN ROAD. 5TH CROSS,
NEAR VIDHYAPEETA CIRCLE,
BENGALURU 560 050.
2. SRI. G.V. NAGENDERA RAO
S/O LATE V.VENKATARAO
SINCE DECEASED BY HIS LR'S
2(A) SMT. PRAMILA BAI
W/O LATE NAGENDRA RAO G.V.
AGED ABOUT 58 YEARS
2(B) SRI. VENKATESHWARA RAO
S/O LATE NAGENDRA RAO G.V.
AGED ABOUT 43 YEARS
2(C) SRI. RAGHAVENDRA RAO
S/O LATE NAGENDRA RAO G.V.
AGED ABOUT 41 YEARS
2
R/AT No.1367/2, SRINIVASANAGAR
9TH MAIN ROAD, DR. RAJ ROAD, 8TH CROSS,
BANASHANKARI 2ND STAGE
BENGALURU - 560 050.
2(D) SMT. LAKSHMI BAI S
W/O SURESH R
AGED ABOUT 42 YEARS
RESIDING AT No.135, 71ST CROSS
NEAR KUMARASWAMY LAYOUT
BENGALURU - 560 078.
...PETITIONERS
(BY SRI. GANGADHARAIAH A N, ADVOCATE)
AND:
SRI. M.MANJUNATHA
S/O SRI. M. MARIYAPPA
AGED ABOUT 38 YEARS
R/AT NO.139/1-2-1,
PIPELINE EAST MAIN ROAD,
KASTURBANAGAR,
MYSORE ROAD,
BENGALURU 560 026.
....RESPONDENT
(BY SRI. B N PUTTALINGAIAH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE ORDER PASSED THE XVII ADDL. CITY
CIVIL JUDGE AT BANGALORE IN O.S.NO.2653/2015 ON
I.A.NO.5 DATED 27.11.2017 VIDE ANNEXURE-E AND
ALLOW I.A.NO.5 FILED BY THE PETITIONERS FOR
AMENDMENT OF THEIR WRITTEN STATEMENT BY
ALLOWING THIS PETITION.
3
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners aggrieved by the order passed on
I.A.No.5 dated 27.11.2017, passed in O.S.No.
2653/2015 by the XVII Addl. City Civil Judge,
Bengaluru has filed this writ petition.
2. Brief facts leading rise to filing of this petition
are as under:
The respondent filed a suit in O.S.No.2653/2015
against the petitioners for the relief of declaration and
injunction. The trial Court issued summons to the
petitioners. Petitioners appeared through counsel, but
did not choose to file written statement. Thereafter
the matter was posted for respondent's evidence.
Respondent filed affidavit in lieu of examination-in-
chief. Thereafter petitioners filed an application
seeking permission to file written statement. The trial
Court allowed the application and permitted the
petitioners to file written statement. The trial Court
framed issues and thereafter matter was posted for
cross-examination of the respondent i.e., PW-1. At
that time, petitioners filed an application for
amendment of written statement. The said
application was opposed by the respondent by filing
objections. 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 the respondent.
4. Learned counsel for the petitioners submits
that the trial Court has committed an error in passing
the impugned order. He further submits that the
application was filed by the petitioners prior to
commencement of evidence. He further submits that
the trial Court has committed an error in recording a
finding that this Court in RFA No.855/2014 has set
aside the judgment and decree passed in
O.S.No.5576/2007. He further submits that this Court
has disposed of the aforesaid appeal. He further
submits that the trial Court without considering the
contention of the petitioners has passed the impugned
order. Hence, on these grounds, he prays to allow the
writ petition.
5. Per contra, learned counsel for the
respondent submits that prior to the filing of this suit,
the petitioners filed a suit against the respondent and
his vendor in O.S.No.5576/2007 for injunction. The
said suit came to be decreed and the said judgment
was challenged in RFA No.855/2014 and this Court
has disposed of the appeal. He further submits that
the application was filed by the petitioners after the
commencement of trial. He further submits that the
trial Court was justified in passing the impugned
order. Hence he prays to dismiss the writ petition.
6. Perused the records and considered the
submissions made by learned counsel for the parties.
7. It is not in dispute that the petitioners filed a
suit in O.S.No.5576/2007 against the respondent and
his vendor for permanent injunction. The said suit
came to be decreed vide judgment and decree dated
28.02.2014. The respondent and his vendor
aggrieved by the judgment and decree passed in the
aforesaid suit preferred an appeal in RFA No.855/2014
before this Court. This Court vide judgment dated
03.03.2015, disposed of the appeal granting leave to
file such a suit within a period of 15 days, if not
earlier, from the date of the judgment. In view of the
leave granted by this Court in the aforesaid appeal,
the respondent filed the suit in O.S.No.2653/2015 for
declaration and injunction. In the said suit, the trial
Court issued summons to the petitioners. Petitioners
appeared through counsel, but did not choose to file
written statement. The trial Court has taken the
written statement as not filed. Meanwhile, the
respondent has filed an affidavit in lieu of
examination-in-chief. Thereafter, the petitioners filed
an application seeking permission to file written
statement. The said application came to be allowed
by the trial Court. After accepting the written
statement, on the basis of pleadings of the parties,
the trial Court framed issues. Thereafter, the matter
was posted for respondent's evidence. At that time,
petitioners filed an application to amend the written
statement to incorporate the plea of res judicata and
also the plea of limitation. The trial Court has
recorded a finding that the respondent has produced
certified copy of the judgment passed in RFA
No.855/2014 wherein the trial Court observed that
this Court has set aside the judgment and decree
passed in O.S.No.5576/2007. Learned counsel for
petitioners has provided a copy of judgment passed in
RFA No.855/2014. From the perusal of the judgment
passed in the aforesaid appeal, it discloses that this
Court has disposed of the appeal without making any
observation as to whether the judgment and decree
passed by the trial Court in O.S.No.5576/2007 is set
aside or confirmed. Without there being any
observation to that effect, the trial Court has
committed an error in recording a finding that this
Court has set aside the judgment and decree passed
in O.S.No.5576/2007. The finding recorded by the
trial Court in para-11 is contrary to the records. After
framing of issues, the respondent did not file fresh
affidavit in lieu of examination-in-chief, though
proceeded upon the examination-in-chief which was
filed prior to the filing of written statement. The
petitioners filed an application for amendment of
written statement. The trial Court rejected the
application on the ground that the petitioners have not
made out a case that proposed amendment is very
much necessary for effectual disposal of the suit.
While considering an application for amendment of
pleadings, the Court is required to consider whether
the proposed amendment changes the nature of case
and cause of action. In the present case, the trial
Court while considering the application for amendment
of written statement, has recorded a finding in the
impugned order, on the merits of the case. Insofar as
amendment of written statement, the Court shall
adopt for more liberal approach, than for amendment
of the plaint. The said view is supported by the
decision of Hon'ble Apex Court in the case of SUSHIL
KUMAR JAIN VS. MANOJ KUMAR & ANR., reported in
AIR 2009 SC 2544. The proposed amendment as
sought by the petitioner does not change the nature of
defence. The trial Court has committed an error in
rejecting the application filed by the petitioners.
Hence, I proceed to pass the following:
ORDER
The writ petition is allowed.
The impugned order dated
27.11.2017 passed on I.A.No.5 in O.S.No.
2653/2015 is set aside.
Consequently the application filed by
the petitioners i.e., I.A.No.5 is allowed.
Petitioners are permitted to carry out the
amendment in the written statement.
SD/-
JUDGE
RD
