Kusumabai W/O Nandkumar Darbar ... vs Fatima And Anr
2023 Latest Caselaw 1178 Kant

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            IN THE HIGH COURT OF KARNATAKA

                   KALABURAGI BENCH

        DATED THIS THE 3RD DAY OF FEBRUARY, 2023

                        BEFORE

     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

       WRIT PETITION NO.200397 OF 2023 (GM CPC)

BETWEEN:

KUSUMABAI
W/O NANDKUMAR DARBAR
SINCE DECEASED BY HER LRS

1.     ABHAY
       S/O NANDKUMAR DARABAR
       AGED 54 YEARS, OCC: BUSINESS
       R/O GUJJAR GALLI, DARBAR HOUSE
       J.M. ROAD VIJAYAPUR DISTRICT
       PIN - 586 101

2.     AJAYA
       S/O NANDKUMAR DARABAR
       AGED 54 YEARS
       OCC: BUSINESS
       R/O GUJJAR GALLI, DARBAR HOUSE
       J.M.ROAD VIJAYAPUR DISTRICT
       PIN - 586 101

3.     SAVITRI
       W/O PRASANNA CHINCHALI
       AGED 43 YEARS, OCC: HOUSE HOLD
       R/O ALAKUNTE NAGAR, NEAR HANUMAN
       TEMPLE, D.C.C. BANK BESIDE
       DISTRICT VIJAYAPUR 586103
                                       .... PETITIONERS

(BY SRI SANTOSH KUMAR B. BIRADAR, ADVOCATE)
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AND:

1.     FATIMA
       W/O SHABIR PUNEKAR
       AGED 57 YEARS
       OCC: HOUSE HOLD
       R/O GODIHAL COLONY NEAR HAKIM CHOWK
       VIJAYAPUR, DISTRICT VIJAYAPUR - 586 101

2.     JAVEED
       S/O SHABIR PUNEKAR
       AGED 39 YEARS
       OCC:BUSINESS
       R/O GODIHAL COLONY NEAR HAKIM CHOWK
       VIJAYAPUR, DISTRICT VIJAYAPUR - 586 101

                                        ... RESPONDENTS


       THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO (i) ISSUE A WRIT
OF   CERTIORARI   OR   ANY   OTHER   WRIT   QUASHING   THE
IMPUGNED ORDER DATED 19.01.2023 PASSED UNDER ORDER
VI RULE-17 OF C.P.C. IN O.S.NO.666/2020 ON I.A.IX ON THE
FILE OF III ADDITIONAL CIVIL JUDGE AND JMFC AT VIJAYAPUR
(ANNEXURE-G) (ii) CONSEQUENTLY I.A.NO.IX FILED BY THE
RESPONDENTS UNDER ORDER VI RULE-17 OF CPC IN O.S.
NO.666/2020 ON THE FILE OF III ADDITIONAL CIVIL JUDGE
AND JMFC, VIJAYAPUR AND ETC.


       THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
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                           ORDER

Heard the learned counsel for the petitioners.

2. An application is filed seeking amendment at

I.A.No.IX in O.S.No.666/2020 on the file of III Additional

Civil, Judge, Vijayapura, which is called in question.

3. The suit is one for relief of declaration and

injunction. The plaintiff has sought declaration in respect

of the property bearing Sy.No.155/4 measuring 2 acres 18

guntas and sketch is also appended to the plaint and

consequently the plaintiff has also sought for relief of

injunction.

4. By a way of an amendment which he has

sought the plaintiff contends that the survey number is

now changed as 155/5 at the instance of the defendants.

And for this reason, he has filed an application seeking

amendment of the plaint. The application filed for changing

the suit survey number as 155/5 instead of 155/4 as per

the plaint which was filed. This application was objected by

the defendants and the trial Court has overruled the

objection and has allowed for amendment. Learned

counsel for the petitioners would contend that the

proposed amendment is going to change the cause of

action as well as the nature of the suit. As noticed the

amendment sought is only in respect of change of survey

number and there is no change any cause of action.

5. Under these circumstance, this Court is of the

view that the proposed amendment does not change the

cause of action as well as the nature of the suit. It is also

noticed that the amendment is sought on the basis of the

documents which are produced by the defendants. The

plaintiff gained knowledge about change of survey number

in the property subsequent to the filing of the suit. Thus,

application is filed for amendment. There is no difficulty in

holding that the trial Court is justified in allowing the

application for amendment.

6. Learned counsel for the petitioners would also

submit that amendment is sought to withdraw the

admission, already made in the plaint. It is to be noticed

that the trial is not yet commenced. The affidavit filed

along with the application would indicate that the plaintiff

came to know about the change of survey number on

going through the documents produced by the defendants

subsequent to the filing of the suit. Hence, the stand taken

by the plaintiff cannot be taken as an attempt to withdraw

the petition. Learned counsel would also submit that on

earlier occasion the plaintiff has filed an application

seeking amendment and the same was withdrawn as not

pressed. The application said to have been filed earlier

seeking amendment is not placed before the Court. This

Court is unable to accept the contention that the

amendment sought on the earlier occasion seeking

amendment in the present are one and the same.

7. Learned counsel for the petitioners would also

place reliance on the following three judgments:

1. Asian Hotels (North) Ltd vs. Alok Kumar Lodha & ors reported in 2022 LiveLaw (SC) 585.

2. Modi Spinning and weaving Mills Co. Ltd. And another vs. Ladha Ram and Co., reported in (1977) AIR (SC) 680: (1976) 4 SCC 320 : (1977) 1 SCR 728.

3. C.Lakshminarayana vs. N.Narsimhaiah reported in 2020(4) Law digital in 0055: 2020 AIR Civil cases 1885.

8. This Court has considered the ratio laid down

in the aforementioned judgments. Same cannot be made

applicable to the facts of this case, the amendment sought

in this case to rectify the error in describing survey

number.

9. Under these circumstances, there is no merit in

the petition. Accordingly, the petition is dismissed.

10. Needless, to say that the defendant is entitled

to file additional written statement to the amended plaint

and in case issues need to be recast based on amendment,

the same is to be done in accordance with law.

Sd/-

JUDGE

GVP