Smt. Muniyamma vs Sampangappa
2023 Latest Caselaw 5879 Kant

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                                               NC: 2023:KHC:30218
                                               WP No.5919 of 2020




                  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.5919 OF 2020 (GM-CPC)
             BETWEEN:

             1.    SMT. MUNIYAMMA
                   W/O SONNALLAPPA
                   AGED ABOUT 86 YEARS
                   GOLLAHALLI VILLAGE
                   MASTHI HOBLI, MALUR TALUK
                   KOLAR DISTRICT-583101.
Digitally
signed by    2.    SMT. ASHWATHAMMA
RUPA V             W/O SONNIAH
Location:          D/O SONNALLALPPA
HIGH COURT
OF                 AGED ABOUT 64 YEARS
KARNATAKA          KANAGALA VILLAGE, TEKAL HOBLI
                   MALUR TAKU, KOLAR DISTRICT.

             3.    SAROJAMMA
                   W/O RAMAKRISHNAPPA
                   AGED ABOUT 64 YEARS.

             4.    VENKATESH
                   S/O RAMAKRISHNAPPA
                   AGED ABOUT 47 YEARS.

             5.    NARAYANAMMA
                   D/O LATE RAMAKRISHNAPPA
                   W/O SAMPANGI
                   AGED ABOUT 44 YEARS.

             6.    SRINIVAS
                   S/O RAMAKRISHNAPPA
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                                   NC: 2023:KHC:30218
                                   WP No.5919 of 2020




     AGED ABOUT 47 YEARS.


     PETITIONERS NO.3 TO 6 ARE
     R/AT GOLLAHALLI VILLAGE
     MASTHI HOBLI, MALUR TALUK
     KOLAR DISTRICT-583101.
                                        ...PETITIONERS
(BY SMT. NEERAJA KARANTH, ADV.,)
AND:

1.   SAMPANGAPPA
     S/O SONNAPPA
     AGED 40 YEARS.

2.   RATHNAMMA
     D/O LATE NANJUNDAPPA
     W/O KENCHAPPA
     AGED 59 YEARS.

3.   RATHNAMMA
     D/O LATE NANJUNDAPPA
     W/O RAMRAJ
     AGED ABOUT 54 YEARS.

4.   KRISHNAPPA
     S/O LATE NANJUNDAPPA
     AGED ABOUT 59 YEARS.

     RESPONDENTS NO.1 TO 4 ARE
     R/AT GOLLAHALLI VILLAGE
     MASTHI HOBLI, MALUR TALUK
     KOLAR DISTRICT-582101.

5.   VENKATAGIRIYAPPA
     S/O NANJUNDAPPA
     AGED ABOUT 64 YEARS.
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                                    NC: 2023:KHC:30218
                                    WP No.5919 of 2020




6.   RAMESH
     S/O NANJUNDAPPA
     AGED ABOUT 31 YEARS.

7.   NARAYANASWAMY
     S/O VENKATAGIRIYAPPA
     AGED ABOUT 44 YEARS.

8.   SMT. KEMPAMMA
     W/O VENKATAGIRIYAPPA
     AGED ABOUT 44 YEARS.

     RESPONDENTS NO.5 TO 8 ARE
     R/AT. GOLLAHALLI VILLAGE
     MASTHI HOBLI, MALUR TALUK
     KOLAR DISTRICT-583101.

                                           ...RESPONDENTS
(BY SRI. RAMESH KUMAR R.V. ADV., FOR R1 TO R8)


     THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER       DATED      27.2.2020    IN     I.A.NO.34    IN
O.S.NO.134/2011 ON THE FILE OF SENIOR CIVIL JUDGE
AND JMF, MALUR FILED AS ANNEXURE-A TO THE WRIT
PETITION.    GRANT AN INTERIM ORDER TO STAY THE
FURTHER PROCEEDINGS IN O.S.NO.134/2011 ON THE
FILE OF SENIOR CIVIL JUDGE AND JMFC MALUR.


     THIS   PETITION    COMING     ON    FOR   PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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                                      NC: 2023:KHC:30218
                                      WP No.5919 of 2020




                          ORDER

This writ petition is filed by the petitioners-plaintiffs

under Article 227 of the Constitution of India seeking to

quash the impugned order dated 27.02.2022 passed on

I.A.No.34 in O.S.No.134/2011 by the Senior Civil Judge &

JMFC, Malur, (for short, 'the trial Court'), wherein the

application of petitioners-plaintiffs filed under Order VI

Rule 17 read with Section 151 of CPC seeking amendment

of the plaint was dismissed.

2. The parties are referred to as per their ranking

before the trial Court. The petitioners are plaintiffs and

respondents are defendants before the trial Court.

3. The brief facts giving rise to filing of this

petition are that the petitioners-plaintiffs have filed the

suit seeking prayer to pass the judgment and decree

declaring that the plaintiffs are the lawful owners of the

suit schedule property on the basis of regrant order issued

by the Tahsildar and further declare the illegal stray

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entries revenue document in favour of defendant No.2 are

null and void and for permanent injunction restraining the

defendants.

4. The plaintiffs have filed an application under

Order VI Rule 17 of CPC seeking to permit the plaintiffs to

amend the plaint by deleting the word "S.4/1 and" and

consequential deletion of the boundaries of the suit

schedule property. The said application was considered

and rejected by the trial Court vide order dated

27.02.2020.

5. Smt.Neeraja Karanth, learned counsel for the

petitioners-plaintiffs submits that the trial Court has

committed error in rejecting the application of the

petitioners seeking for amendment of the pleadings by

deleting Sy.No.4/1 and by restricting their claim to an

extent of 17 guntas in Sy.No.4/2 of Gollahalli Village,

Masthi Hobli, Malur Taluk, from the suit schedule property.

It is submitted that the petitioners are restricting their

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claim to the extent of 17 guntas in Sy.No.4/2 as the

dispute between the plaintiffs and the defendants is only

to the said extent. It is submitted that if the application for

amendment is allowed, the plaintiffs undertake that they

would not adduce any further evidence or new evidence in

the pending suit. It is further submitted that the trial Court

has failed to appreciate the fact that on earlier occasion,

the trial Court has rejected the impleading application filed

by the plaintiffs wherein the plaintiffs intend to implead

the persons in possession over the Sy.No.4/1 and when

the said application is rejected and the persons who are in

possession of Sy.No.4/1 are not impleaded as parties to

the suit, no relief would survive would against them.

Hence, the application for amendment was filed. She

seeks to allow the writ petition.

6. Per contra, Sri.Ramesh Kumar R.V., learned

counsel for the respondents-defendants supports the

impugned order of the trial Court and submits that the

filing of the application by the plaintiffs is at the belated

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stage and the present application is filed seeking for

amendment is filed only with an intention protract the

proceedings. In support of the said contention, learned

counsel for the respondents places reliance on the decision

of the Rajasthan High Court in the case of Badri Narayan

and another v. Ram Gopal and another reported in

AIR 1992 Rajasthan 136 to contend that the

amendment of plaint cannot be allowed when the matter is

set down for arguments and in the instant case, the

petitioners are not diligent in seeking the prayer for

amendment at the initial stage of the trial. It is further

submitted that the petitioners have admitted in the plaint

that they are not in possession of the suit schedule

property and the suit for declaration is not maintainable

without the petitioners being in possession. Hence, he

seeks for dismissal of the writ petition.

7. I have heard learned counsel for the

petitioners-plaintiffs, learned counsel for respondents-

defendants and perused the material on record and have

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given my anxious consideration to the rival contentions

putforth by the learned counsel for the parties. The only

question that arise for consideration is "Whether the order

dated 27.02.2022 passed on I.A.No.34 in

O.S.No.134/2011 required to be interfered with in the

present petition".

8. It is not in dispute that the petitioners herein

have filed the suit for declaration that the petitioners-

plaintiffs are the lawful owners of the suit schedule

property on the basis of the regrant order and further

prayer to declare the illegal entries in the revenue records

made in favour of defendant No.2 are null and void and

further prayer for permanent injunction restraining the

defendants from interfering with the peaceful possession

and enjoyment of the suit schedule property.

9. The petitioners have sought a declaration and

consequential prayer in the said suit insofar as properties

bearing Sy.Nos.4/1 and 4/2 situated at Gollahalli Village,

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Masthi Hobli, Malur Taluk, measuring 4 acre 20 guntas

with the boundaries mentioned therein. It is also not in

dispute that when the matter was set down for arguments,

the present application is filed seeking for amendment of

the plaint by deleting Sy.No.4/1 from the pleading as well

as from the prayer column from the plaint. In effect, the

plaintiffs are giving up their claim insofar as land falls

within the Sy.No.4/1 of Gollahalli Village, Masthi Hobli,

Malur Taluk by restricting their suit only to an extent of 17

guntas in Sy.No.4/2 of Gollahalli Village, Masthi Hobli,

Malur Taluk. On perusal of the material on record, it is

evident that the petitioners on earlier occasion have filed

an application to implead the residents, who are in

possession of the land measuring 4 acre in Sy.No.4/1 of

Gollahalli Village, Masthi Hobli, Malur Taluk and the said

application was rejected by the trial Court. When the

application for impleadment was rejected, the plaintiffs'

relief of declaration and consequential prayer would not

survive for consideration. No doubt, the present

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application is filed at the belated stage of the proceedings.

The normal rule is to allow the application, the rejection

should be an exception. Mere allowing an application for

amendment of the plaint does not mean that the plaintiffs

have been given the relief as sought in the plaint. The

defendants are at liberty to take up all the contentions

available in law during the course of arguments. The

learned counsel for the petitioners-plaintiffs has made a

categorical statement that they does not want to adduce

any evidence/further evidence, in view of the same, it

would not be appropriate to reject the application of the

petitioners seeking amendment of the plaint. By allowing

the application for amendment, no injustice is caused to

the other side. In my considered view, the trial Court has

committed an error in rejecting the application filed under

Order VI Rule 17 of the CPC. I am of the considered view

that the interest of justice would be met if the application

seeking amendment filed under Order VI Rule 17 of CPC is

allowed.

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10. For the reasons recorded supra, the writ

petition is allowed and the impugned order dated

27.02.2022 passed on I.A.No.34 in O.S.No.134/2011 by

the Senior Civil Judge & JMFC, Malur, is set aside. The

application I.A.No.34 filed under Order VI Rule 17 of CPC

is allowed subject to petitioners paying cost of Rs.10,000/-

(Rupees Ten Thousand only) to the respondents-

defendants.

The trial Court is directed to consider and dispose of

dispose of O.S.No.134/2011 on priority basis.

Sd/-

JUDGE

BSR