Karnataka High Court

Abdul Rasheed S/O Abdul Khaleel vs B. Syed Hussain S/O Syed ... on 4 August, 2023

Bench: S.R. Krishna Bysrkkj

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                                                               NC: 2023:KHC-D:8317
                                                       WP No. 110230 of 2017




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                            DATED THIS THE 4TH DAY OF AUGUST, 2023
                                             BEFORE
                          THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
                           WRIT PETITION NO. 110230 OF 2017 (GM-CPC)


                   BETWEEN:
                   1.   ABDUL RASHEED S/O. ABDUL KHALEEL,
                        AGED ABOUT: 65 YEARS, OCC: BUSINESS.

                   2.   SYED AJAM PASHA S/O. SYED ABDUL RASHEED,
                        AGED ABOUT: 35 YEARS, OCC: ELECTRICAL
                        CONTRACOTR.

                   3.   SYED ASLAM PASHA S/O. SYED ABDUL RASHEED,
                        AGED ABOUT: 33 YEARS, OCC: ELECTRICAL
                        CONTRACOTR,

                        ALL ARE R/O: RAICHUR, NOW RESIDING AT SAGAR SHOE
                        MART MPHIUDDIN TALKIES COMPLEX, GANDHI CHOWK,
                        GANGAVATHI, TQ: GANGAVATHI, DIST: KOPPAL.
                                                                  ...PETITIONERS
                   (BY SRI. B.SHARANABASAWA, ADVOCATE)
                   AND:
                   B. SYED HUSSAIN S/O. SYED MAHEBOOBSAB,
Digitally signed   AGED ABOUT 65 YEARS, OCC: BUSINESS,
by JAGADISH T R
Location: HIGH     R/O: CHOICE LAND GARMENTS, JAMIA SHPPING
COURT OF
KARNATAKA          COMPLEX, LG ROAD, ISLAMPUR, GANGAVATHI,
Date: 2023.08.08
11:22:54 +0530     TQ: GANGAVATHI, DIST: KOPPAL.
                                                                    ...RESPONDENT
                   (BY SRI. D.V.PATTAR, ADVOCATE)
                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
                   OF THE CONSTITUTION OF INDIA PRAYING TO, QUASH THE
                   IMPUGNED ORDER DATED 07.09.2017 PASSED BY THE COURT OF
                   THE PRL.CIVIL JUDGE AND JMFC AT GANGAVATHI, ON I.A.NO.6 IN
                   O.S.NO.261/ 2014, VIDE ANNEXURE-E.

                        THIS WRIT PETITION, COMING ON FOR PRELIMINARY
                   HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
                   FOLLOWING:
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                                             NC: 2023:KHC-D:8317
                                         WP No. 110230 of 2017




                           ORDER

This petition by the defendants in OS No.261/2014

on the file of learned Principal Civil Judge, Gangavathi is

directed against the impugned order dated 7.9.2017

passed on IA No.6, whereby the said application filed by

respondent/plaintiff under Order VI Rule 17 of CPC was

allowed by the trial Court.

2. Heard the learned counsel for the petitioners

and learned counsel for the respondent and perused the

material on record.

3. The material on record discloses that the

respondent/plaintiff instituted the aforesaid suit against

the petitioners/defendants for permanent injunction and

other reliefs in relation to suit schedule immovable

properties and the said suit is being contested by the

petitioners/defendants. Prior to commencement of trial,

respondent/plaintiff filed instant application IA No.6

seeking amendment of the plaint by introducing additional

facts in support of his claim. The said application having

NC: 2023:KHC-D:8317 WP No. 110230 of 2017

been opposed by the petitioners/defendants, the trial

Court proceeded to pass the impugned order holding as

under:

Order on I.A.No.6 filed u/o. VI rule 17 of C.P.C

This is a suit filed by the plaintiff for the relief of permanent injunction, now the matter is posted for plaintiff's evidence and the evidence is not yet commenced. At this stage, the plaintiff has filed this application u/o. VI rule 17 C.P.C with a prayer to amend the plaint as scheduled in the application as well as affidavit annexed to the application to insert 2 paragraphs in the plaint pleadings to adjudicate the matter in controversy. The very application objected by the defendants with statement of objection and prayed to reject the application.

2. Perused the application, objection and material placed on record. Here, it s pertinent to note that, in this case still evidence is not yet commenced before commencement of evidence the plaintiff has resorted to introduce the amendment to the plaint by inserting 2 paragraphs. The said application is totally denied by the defendants and taken contention in the objection that, if the application is allowed and plaint is amended it would introduce new set of facts and it will change the nature of suit and leads to insertion of unwarranted pleadings which is not required to adjudicate the matter in controversy.

3. I have gone through both assertion and denial aspects on the part of plaintiff and defendants with respect to this application in question, now I would like to light upon the provision contemplated u/o. VI rule 17 of C.P.C to know the ambit of amendment of the pleadings. To facilitate the said aspect the provision is stated as under:-

Amendment of pleadings: the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties:

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Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

4. By plain reading of above provision it states that any amendment in the pleadings can be introduced at any stage of the suit. However, the proviso to the provision states that no application for amendment shall be entertained once the trial commenced, unless there is a reasonable ground to allow the application when the persons seeking such an amendment with his due diligence could not raise the matter before commencement of such trial. This is the intention and ambit of the very provision. As it is settled preposition of law in support of various judgments rendered by the Hon'ble Supreme Court of India, wherein their Lordships have bestowed scared ratio with respect to allowing the application for amendment before commencement of trial dealt liberally. When this principle applied to the case on hand, it is clear that still in this suit the evidence to be commenced, as such introduction of amendment to the pleadings can be entertained with liberty in one aspect. Apart from this, when allowing the application for amendment it is necessary to look into the fact to be introduced, shall not take off the defence of the defendant and introduce new set of fact which changes the very nature of the suit.

5. In this quest when the application, objection and pleadings and documents placed by the parties to the suit is carefully verified, the proposed amendment which the plaintiff sought in the application does not the introduce any new set of facts, which is already dealt in the pleadings as well as documents on record. Further, the pleadings of the defendants stated new set of facts in defence mode, which needs to be suitably replied by the plaintiff to substantiate his claim. With all these consideration the application filed by the plaintiff is not effected by any infirmity, which indeed requires to be allowed to know the factual position and adjudicating the real matter in controversy. Further, it is observed the defendant in his objection has contended the very application is filed only to delay the proceedings in order to protract the proceedings, such objection can be met by imposing certain cost on the

NC: 2023:KHC-D:8317 WP No. 110230 of 2017

plaintiff while allowing the application for amendment of pleadings. By considering all the aspects I do not find any infirmity in the application filed by the plaintiff. Hence, without much discussion I proceed to pass the following order.

ORDER

I.A No.6 filed by the plaintiff u/o.VI rule 17 r/w. sec. 151 of C.P.C is hereby allowed on cost of Rs.200/-.

4. A perusal of the impugned order will indicate

that the trial Court has come to the conclusion that the

proposed amendment was necessary to adjudicate upon

the issue in controversy between the parties. Further, no

prejudice would be caused to the petitioners, who would

be entitled to file additional written statement to the

amendment, particularly when by way of proposed

amendment, respondent/plaintiff merely seeks

introduction of additional facts/pleadings by way of

amplification of existing pleadings, which necessarily have