Karnataka High Court
Smt. Lakshmamma vs Sri. Shivaramaiah on 4 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:43672
WP No. 25652 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 25652 OF 2023 (GM-CPC)
BETWEEN:
SMT. LAKSHMAMMA W/O SIDDALINGAIAH,
AGED ABOUT 58 YEARS,
R/AT PUNUGUMARANAHALLI VILLAGE,
TAVAREKERE HOBLI,
BENGALURU SOUTH TALUK.
REP. BY ITS SPA HOLDER,
T.S. RAMESH S/O SIDDALINGIAAH,
AGED ABOUT 38 YERAS,
R/AT PUNUGUMARANAHALLI VILLAGE,
TAVAREKERE HOBLI,
BENGALURU SOUTH TALUK - 562 120.
...PETITIONER
(BY SRI. ANAND GANESH M., ADVOCATE)
AND:
Digitally 1. SRI. SHIVARAMAIAH,
signed by A K S/O LATE KENCHA MURTHAIAH,
CHANDRIKA AGED ABOUT 52 YEARS,
Location:
2. SMT. JAYAMMA W/O. SHIVARAMAIAH,
HIGH
COURT OF AGED ABOUT 47 YEARS,
KARNATAKA BOTH ARE R/AT
PUNUGUMARANAHALLI VILLAGE,
TAVAREKERE HOBLI,
BENGALURU SOUTH TALUK - 562 120.
...RESPONDENTS
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 30.10.2023 PASSED ON IA NO.IX IN
O.S.NO.139/2011 BY THE ADDL. CIVIL JUDGE AND JMFC, MAGADI
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WP No. 25652 of 2023
VIDE ANNEXURE - E, CONSEQUENTLY ALLOW THE IA NO.IX FILED BY
THE PETITIONER VIDE ANNEXURE - C AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, plaintiff in O.S.No.139/2011 on the
file of the Additional Civil Judge and JMFC, Magadi, is
before this Court, aggrieved by impugned order dated
30.10.2023, rejecting I.A.No.9 filed under Order VI Rule
17 of the Code of Civil Procedure, 1908 (for short 'CPC') to
amend the plaint 'B' schedule by deleting Sy.No.5 and to
insert Sy.No.4 in its place.
2. Heard Sri. Anand Ganesh.M., learned counsel
for the petitioner-plaintiff and perused the writ petition
papers.
3. Learned counsel for the petitioner would submit
that the suit of the petitioner-plaintiff is one for declaration
to declare that the plaintiff has got easementary right over
the 'B' schedule property and to restrain the defendants
from obstructing the plaintiff to enjoy the 'B' schedule
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property and also for permanent injunction. Learned
counsel further submits that initially the survey number
was mentioned as '2', subsequently application was filed
under Order VI Rule 17 of CPC, to amend the plaint 'B'
schedule to insert Sy.No.5 and to delete Sy.No.2. The said
application is rejected by the trial Court. Against which,
the petitioner was before this Court by filing the writ
petition. It is submitted that the said writ petition was
allowed and petitioner was permitted to amend the suit
schedule to insert Sy.No.5 in place of Sy.No.2. Learned
counsel further submits that the present application is filed
to amend plaint 'B' schedule to replace Sy.No.5 and to
insert Sy.No.4. Learned counsel for the petitioner submits
that correct survey number is '4' and not '5'. The trial
Court on consideration of the said application, under
impugned order, rejected the same holding that the
application is filed belatedly when the suit was at the stage
of final arguments on main. Learned counsel would
submit that the trial Court ought to have allowed the
application for amendment, to insert Sy.No.4 in place of
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Sy.No.5. It is further submitted by the learned counsel
that if the amendment is allowed, no prejudice would be
caused to the respondents-defendants. On the other hand,
it would enable the Court to decide the real issue involved
in the suit. Moreover, he submits that if petitioner-plaintiff
get judgment and decree in respect of Sy.No.5 it would be
of no use to the petitioner-plaintiff and the petitioner
would not be in a position to execute the same. Thus, he
prays for allowing the writ petition.
4. Having heard the learned counsel for the
petitioner and on perusal of the writ petition papers, I am
of the view that the petitioner has not made out any
ground to interfere with the impugned order. Moreover,
impugned order is neither perverse nor suffers from any
material irregularity so as to warrant interference under
Article 227 of the Constitution of India.
5. Order VI Rule 17 of CPC provides for
amendment of pleadings. In terms of the said provision
the Court may at any stage of the proceedings allow either
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of the parties to alter or amend pleadings in such manner
and on such terms, as may be just and necessary for the
purpose of determining real questions in controversy
between the parties. But the proviso to sub-rule puts
restriction on the Court, while considering the amendment
application after commencement of trial. If the
amendment sought is after commencement of trial, unless
the court is satisfied with regard to due diligence that the
party could not have raised the matter before
commencement of trial, the Court would not get
jurisdiction to allow such application.
6. The Hon'ble Apex Court in (2009) 2 SCC 409
(VIDYABAI AND OTHERS VS. PADMALATHA AND
ANOTHER) has held that unless the Court comes to a
conclusion that in spite of due diligence, the party could
not have raised the matter before the commencement of
trial, the Court would not get jurisdiction to allow such
application. Relevant Paragraphs 10 and 19 of the above
decision reads as follows:
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"10. By reason of the Civil Procedure Code
(Amendment) Act, 2002 (Act 22 of 2002),
Parliament inter alia inserted a proviso to Order 6
Rule 17 of the Code, which reads as under:
"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."
It is couched in a mandatory form. The court's
jurisdiction to allow such an application is taken
away unless the conditions precedent therefor are
satisfied viz. it must come to a conclusion that in
spite of due diligence the parties could not have
raised the matter before the commencement of the
trial.
19. It is the primal duty of the court to
decide as to whether such an amendment is
necessary to decide the real dispute between the
parties. Only if such a condition is fulfilled, the
amendment is to be allowed. However, proviso
appended to Order 6 Rule 17 of the Code restricts
the power of the court. It puts an embargo on
exercise of its jurisdiction. The court's jurisdiction, in
a case of this nature is limited. Thus, unless the
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jurisdictional fact, as envisaged therein, is found to
be existing, the court will have no jurisdiction at all
to allow the amendment of the plaint."
7. Admittedly, the petitioner presented plaint with
suit schedule mentioning as Sy.No.2 of Punugamaranahalli
Village, Tavarekere Hobli, Bengaluru South Taluk.
Subsequently, at the request of the petitioner-plaintiff, this
Court allowed the application of the petitioner-plaintiff for
amendment of suit schedule to mention Sy.No.5 instead of
Sy.No.2. Now the petitioner-plaintiff has come up with
another amendment application saying that Sy.No.5
mentioned and amended earlier is not correct survey
number, it ought to have been Sy.No.4. The entire trial
has taken place and proceeded as if the suit is in respect
of Sy.No.2. Learned counsel for the petitioner would
submit that the earlier amendment is also after completion
of trial. No explanation is forthcoming for belated
application for amendment. Moreover, the petitioner is
not diligent in prosecuting the case. Unless the petitioner-
plaintiff explains due diligence, the Court would not get
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jurisdiction to allow such amendment application. The
Court shall have to be satisfied with the explanation for
due diligence and then only the Court would be in a
position to allow such amendment application. Thus, the
trial Court has rightly held that when the matter is posted
for arguments, application filed for amendment would not
be maintainable. There is no error in the order passed by
the trial Court. Accordingly, writ petition stands rejected.
Sd/-
JUDGE
SMJ
