Sri Gopanalu Hanumanthappa vs Sri Durugappa
2023 Latest Caselaw 5878 Kant

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                                                 NC: 2023:KHC:30113
                                                WP No. 4206 of 2021




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 23RD DAY OF AUGUST, 2023

                                   BEFORE
                THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
                   WRIT PETITION NO.4206 OF 2021 (GM-CPC)

            BETWEEN:

            SRI. GOPANALU HANUMANTHAPPA,
            S/O DURUGAPPA,
            AGED ABOUT 52 YEARS,
            R/O LOKIKERE VILLAGE,
            DAVANAGERE DISTRICT - 577 544.
                                                        ...PETITIONER
            (BY SRI. D.P.MAHESH, ADVOCATE)

            AND:

            SRI. DURUGAPPA,
            S/O DURUGAPPA,
            AGED ABOUT 52 YEARS,
            R/O LOKIKERE VILLAGE,
Digitally
signed by   DAVANAGERE DISTRICT - 577 544.
RUPA V                                               ...RESPONDENT
Location:
HIGH        (BY SMT.KRITHIKA BHAT K., ADVOCATE FOR
COURT OF        SRI.SANATH KUMAR SHETTY K., ADVOCATE)
KARNATAKA
                 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
            CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED
            19.03.2020, PASSED ON I.A.NO.10 IN O.S.23/2009 BY THE
            LEARNED ADDITIONAL CIVIL JUDGE, DAVANAGERE VIDE
            ANNEXURE - A TO THE WRIT PETITION.

                   THIS PETITION, COMING ON FOR PRELIMINARY HEARING
            IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                              NC: 2023:KHC:30113
                                             WP No. 4206 of 2021




                            ORDER

This writ petition is filed under Article 227 of the

Constitution of India, seeking prayer to quash the order dated

19.03.2020 passed on I.A.No.10 in O.S.No.23/2009 on the file

of the Additional Civil Judge, Davanagere.

2. Brief facts giving rise to file this petition are that

the petitioner herein is the defendant in O.S.No.23/2009 filed

by the respondent-plaintiff seeking prayer to declare that the

respondent is owner in possession and enjoyment of the suit

schedule property and further prays to restrain the petitioner

herein or anyone under them from interfering with the peaceful

possession and enjoyment of the suit schedule property. The

said suit came to be dismissed by the judgment and decree

dated 18.01.2016. Being aggrieved by the same, respondent-

plaintiff has filed R.A.No.33/2016, which came to be allowed by

setting aside the judgment and decree passed in

O.S.No.23/2009 dated 18.01.2016 by remitting the matter

back to the trial Court with a direction to accord opportunity to

adduce additional evidence and to dispose of the suit in

accordance with law on priority basis. After remand, the

petitioner who is the defendant has filed an application-

NC: 2023:KHC:30113 WP No. 4206 of 2021

I.A.No.10 under Order VI Rule 17 of CPC, seeking for

amendment of written statement. The said application came to

be dismissed vide order dated 19.03.2020. Being aggrieved by

the same, the present writ petition is filed.

3. Sri. D.P.Mahesh, learned counsel appearing for the

petitioner submits that the trial Court has committed an grave

error in rejecting the application filed under Order VI Rule 17 of

CPC, seeking amendment of the written statement on the

ground that the Appellate Court while remanding the suit has

only directed to dispose of the suit by giving an opportunity to

adduce additional evidence for the parties and there is no

direction to amend the pleadings. It is further submitted that

the trial Court has committed grave error in not allowing the

petitioner to amend the written statement, as the respondent is

allowed to adduce the additional evidence, the petitioner -

defendant has a right to cross witness on additional evidence,

and unless the petitioner is permitted to amend his written

statement, he will not be allowed to cross witness on additional

evidence and he will not be in a position to put forth his

defence properly in the suit. The respondent is placing reliance

on the sale deed dated 06.02.1975 and based on the sale deed,

NC: 2023:KHC:30113 WP No. 4206 of 2021

he intends to adduce additional evidence by changing the

boundary and the petitioner who is the defendant is required to

take appropriate defence with reference to the pleading by

amending the written statement. Unless he is permitted to

take such defence in the written statement, the rights of the

petitioner to defend in the suit would severely affect and he

would not be able to cross-examine the respondent/plaintiff in

the suit in effective manner. The said aspect has not been

properly appreciated by the trial Court and erroneously rejected

the application filed seeking for the amendment of written

statement. It is also submitted that if the application seeking

amendment of the written statement is allowed, no harm or

prejudice would be caused to the respondent herein. On the

other hand, if the same is rejected, the defendant would lose

his defence in the suit, it would cause prejudice to him. Hence,

he seeks to allow the application by setting aside the impugned

order.

4. Per contra, Smt. Krithika Bhat.K, learned counsel

appearing for the respondent supports the impugned order of

the trial Court and submits that the Appellate Court while

setting aside the judgment and decree dated 18.01.2016

NC: 2023:KHC:30113 WP No. 4206 of 2021

passed in O.S.No.23/2009 has directed the parties to adduce

additional evidence and there is no direction for amendment of

the pleadings. It is submitted that if the application for the

amendment of written statement is allowed, it would further

delay the proceedings before the trial Court. Accordingly, she

seeks to dismiss the writ petition.

5. I have heard the learned counsel for the petitioner

and learned counsel for the respondent. Perused the materials

on record.

6. It is not in dispute that the respondent herein has

filed the suit seeking prayer to declare that the respondent is

owner in possession and enjoyment of the suit schedule

property and the said suit came to be dismissed by the

judgment and decree dated 18.01.2016 and being aggrieved by

the same, the respondent-plaintiff has filed R.A.No.33/2016,

which came to be allowed. The Appellate Court has remanded

the matter back to the trial Court with a direction to accord an

opportunity to adduce additional evidence to the parties. The

Trial Court has recorded the finding that the Appellate Court

has not afforded an opportunity to both the parties to file

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additional pleadings while rejecting the application. It is the

specific contention of the petitioner is that there is discrepancy

in the schedule of the sale deed and suit schedule property and

while remanding the matter back to the trial Court, the

Appellate Court has permitted respondent/plaintiff to adduce

fresh/additional evidence. When things stood thus, the

petitioner - defendant is required to put forth his defence by

amending the written statement and unless he is allowed to

amend the written statement, he would not be in a position to

effectively cross-examine the witness on additional evidence. I

find force in the submission of the learned counsel for the

petitioner / defendant. The petitioner - defendant intends to

put forth his proper defence to the additional evidence placed

by the respondent by amending the written statement. It is a

specific defence of the petitioner / defendant that plaintiff's

claim is unjust based on the said sale deed and very schedule

of the plaint with reference to boundaries and the boundaries of

sale deed are different and what the plaintiff is claiming is more

than the sale deed in the plaint and the petitioner wanted to

take specific defence to the said effect in his written statement.

When things stood thus, the trial Court has erred in rejecting

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the application seeking amendment of the written statement.

The proceedings of the suit are at initial stage,

the respondent-plaintiff is required to prove his case before the

trial Court based on the pleadings, evidence and by permitting

the petitioner-defendant to amend the written statement would

not cause any prejudice or harm to the respondent-plaintiff.

Hence, in my considered view, the trial Court has committed

grave error in rejecting the amendment application on the sole

ground that while remanding the matter, the Appellate Court

has not permitted the parties to amend the pleadings is

perverse and contrary to settled principles of law.

For the reasons recorded supra, writ petition is allowed.

The impugned order dated 19.03.2020 on I.A.No.10 is set

aside. I.A.No.10 is allowed. The petitioner is permitted to

amend the written statement.

Ordered accordingly.

No order to costs.

Sd/-

JUDGE SMJ