Karnataka High Court
Sri. Krihnegowda vs Sri.L.C. Bettegowda on 7 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 24282 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 24282 OF 2023 (GM-CPC)
BETWEEN:
SRI. KRIHNEGOWDA
S/O BOMMANNANA
BY HIS LRS.,
1. SRI. L.K. MAHADEV,
S/O LATE KRISHNEGOWDA,
AGED 48 YEARS,
2. SRI. L.K. SHANKAR
S/O LATE KRISHNEGOWDA,
AGED ABOUT 46 YEARS,
3. SRI. L.K. ARUN KUMAR
Digitally S/O LATE KRISHNEGOWDA,
signed by A AGED ABOUT 36 YEARS,
K
CHANDRIKA
4. SMT. KEMPAMMA
Location: W/O LATE KRISHNEGOWDA,
HIGH AGED ABOUT 72 YEARS,
COURT OF
KARNATAKA
5. SMT. SUMITRA
W/O MARISWAMYGOWDA,
AGED ABOUT 50 YEARS,
6. SMT. L.K. JYOTI
W/O LATE KRISHNEGOWDA,
AGED ABOUT 38 YEARS,
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WP No. 24282 of 2023
ALL ARE R/O LAKSHMI SAGARA VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
...PETITIONERS
(BY SRI. P.S. MALIPATIL, ADV.)
AND:
SRI. L.C. BETTEGOWDA
S/O LATE CHELUVEGOWDA,
AGED ABOUT 72 YEARS,
R/O LAKSHMI SAGARA VILLAGE,
PANDAVAPURA TALUK,
MANDYA DISTRICT-571434.
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO I) ORDER TO SET
ASIDE THE ORDER DATED 11/08/2023 PASSED ON IA NO.5 IN
RA NO.3/2022 ON THE FILE OF ADDL. LEARNED SR. CIVIL
JUDGE COURT, AT PANDAVAPURA VIDE ANNEXURE-G AND II)
ISSUE AN ORDER AND TO ALLOW IA NO.5 AND PERMIT THE
PETITIONER TO AMEND THE PLAINT CLAIMING DECLARATION
AND INJUNCTION IN RESPECT OF SUIT SCHEDULE PROPERTY
AND TO PASS SUCH OTHER ORDERS.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners, appellants in R.A.No.03/2022 on the
file of the Additional Senior Civil Judge, Pandavapura are
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before this Court, challenging the order dated 11.08.2023
rejecting I.A.No.5 filed under Order VI Rule 17 CPC to
amend the plaint to convert the suit from injunction to
that of suit for declaration and possession.
2. Heard learned counsel Sri.P.S.Malipatil for petitioners
and perused the writ petition papers.
3. Learned counsel for the petitioners would submit that
the original plaintiff i.e. father of petitioners herein filed
O.S.No.357/2014 on the file of II Additional Civil Judge
and JMFC, Pandavapura with a prayer for a judgment and
decree of permanent injunction restraining the defendant
from interfering with the plaintiffs' possession and
enjoyment of suit schedule property. After trial, the said
suit was dismissed by judgment dated 01.10.2021.
Against the said judgment and decree, the legal
representatives of the original plaintiff filed
R.A.No.03/2022 on the file of Additional Senior Civil Judge
at Pandavapura. In the said appeal, the petitioners filed
I.A.No.5 under Order VI Rule 17 of CPC seeking leave to
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convert the suit for injunction to that of suit for declaration
and possession. Learned counsel for the petitioners would
submit that the suit was dismissed on the ground that as
on the date of filing the suit, the petitioners' father was
not in possession of the suit schedule property. Hence,
the petitioners are advised to seek amendment of the
plaint to include prayer for declaration and possession.
Learned counsel would submit that the amendment if
allowed would avoid filing of fresh suit and it would
minimize the litigation. Further, learned counsel
Sri.P.S.Malipatil would submit that the amendment shall
be considered liberally. Thus, he prays for allowing the
writ petition.
4. Having heard the learned counsel for the parties and
on perusal of the writ petition papers, I am of the view
that the petitioners have not made out any ground to
interfere with the impugned order. Moreover, the
impugned order is neither perverse nor suffers from any
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material irregularity so as to warrant interference under
Article 227 of the Constitution of India.
5. Admittedly, the suit of petitioners for permanent
injunction is dismissed by judgment and decree dated
01.10.2021 in O.S.No.357/2014. Against the said
judgment and decree, the petitioners filed
R.A.No.03/2022. In the said R.A., petitioners filed
I.A.No.5/2022 under Order VI Rule 17 of CPC. The
proposed amendment reads as follows:
PROPOSED AMENDMENT
"To delete the work Permanent injunction
in the prayer column of the plaint and to insert
relief in the prayer column after the word suit
schedule property permanently for declaration
of title and recovery of possession of the suit
schedule property which was in possession of
defendant/respondent measuring East to West
40 feet, North to South 70 feet, out of 0.08
guntas as per khata in Lakshmisagara
Panchayathi; bounded E-Kalegowda's house;
W-remaining property of plaintiffs; N-property
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of Marithimmegowda sons and S-House of
Krishnamurthy and Hanumanthegowda."
A reading of the above would makes it clear that the
petitioners intend to convert the suit which is already
decreed, from permanent injunction to that of declaration
and possession.
6. Though there is no bar for allowing the amendment
of plaint at appellate stage, the said power could be
exercised only in exceptional cases. The suit of the
petitioners initially filed was for permanent injunction
which is rejected under judgment and decree dated
01.10.2021. According to the learned counsel for the
petitioners, the suit is dismissed solely on the ground that
the original plaintiff, i.e., petitioners' father was not in
possession of the suit schedule property as on the date of
filing the suit. If the amendment is allowed, the
respondents right would be prejudicially affected and no
exceptional ground is made out by the petitioners to allow
the amendment application at the appellate stage.
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Nothing prevents the petitioners from instituting fresh suit
if law permits.
With the above, the writ petition stands disposed of.
Sd/-
JUDGE
MPK
CT:bms
