Karnataka High Court
L.S. Anitha vs Smt Manjula on 11 July, 2023
Bench: S.R.Krishna Kumar
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WP No. 14500 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 14500 OF 2023 (GM-CPC)
BETWEEN:
L.S. ANITHA
AGED ABOUT 48 YEARS
W/O P.N. VARADARAJU,
R/AT NO 494/1, MATHRUSHRI NILAYA,
1ST STAGE, 2ND BLOCK,
PEENYA,
BENGALURU 560 058
REPRESENTED BY GPA HOLDER
SRI P N VARADARAJU,
AGED ABOUT 55 YEARS
...PETITIONER
(BY SRI. NANJA REDDY P N.,ADVOCATE)
AND:
Digitally
signed by 1. SMT MANJULA,
NARASIMHA AGED ABOUT 55 YEARS,
MURTHY
VANAMALA W/O LATE VENKATARAMANA,
Location:
HIGH
COURT OF
KARNATAKA 2. SMT SHRUTHI
AGED ABOUT 33 YEARS,
D/O LATE VENKATARAMANA,
R1 AND R2 ARE RESIDING AT
SHRUTHI NILAYA
NEAR BUS STAND, 1ST STAGE,
PEENYA 2ND STAGE,
TUMKUR ROAD,
BENGALURU 560058
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3. SRI THIMMARAJU
AGED ABOUT 64 YEARS,
S/O LATE YANKATAPPA,
R/AT BEHIND R.K.STEEL,
1ST STAGE, PEENYA POST,
TUMKUR ROAD,
BENGALURU 560058
4. SRI SHANKAR
AGED ABOUT 50 YEARS
S/O LATE AKKACHAMMA,
R/AT NO 358/1, 2ND MAIN ROAD,
PEENYA VILLAGE,
BENGALURU 560058
5. SMT LAKSHMAMMA
W/O LATE VENKATAPPA,
AGED ABOUT 80 YEARS
6. SRI THIMMARAJU
S/O LATE VENKATAPPA,
AGED ABOUT 51 YEARS
7. SRI SHANKARAPPA
S/O LATE VENKATAPPA,
AGED ABOUT 48 YEARS
R5 TO R7 ARE R/AT BEHIND R.K.STEEL,
1ST STAGE, PEENYA POST,
TUMKUR ROAD,
BENGALURU 560058
8. SMT RANGAMMA
W/O LATE P V MUNIYAPPA,
AGED ABOUT 90 YEARS,
R/AT NO 335, 1ST BLOCK,
1ST CROSS, 7TH MAIN PEENYA,
BENGALURU 560058
...RESPONDENTS
(BY SRI. P.SRINATHA, ADVOCATE FOR C/R7)
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WP No. 14500 of 2023
THIS WP IS FILED UNDER ARTICLES 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 26/06/2023 PASSED BY THE 1ST ADDL.
CITY CIVIL AND SESSIONS JUDGE (CCH-02), BENGALURU
IN OS NO 6315/2023 VIDE ANNEXURE-C IN I.A NO.9 AND
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by the defendant No.1 in O.S.No.6315/2013
on the file of the I Additional City Civil and Sessions Judge,
Bengaluru (for short, 'the trial Court') is directed against the
impugned order passed on I.A.No.IX whereby, the said
application filed by the respondent Nos.1 to 7-plaintiffs under
Order VI Rule 17 of the Code of Civil Procedure, 1908 seeking
amendment of the plaint was allowed by the trial Court.
2. Heard learned counsel for the parties and perused
the material on record.
3. The material on record discloses that the
respondent Nos.1 to 7-plaintiffs instituted the aforesaid suit for
declaration, mandatory injunction and other reliefs in relation to
the suit schedule immovable property. The said suit is being
contested by the petitioner-defendant No.1. After conclusion of
trial, the respondent Nos.1 to 7-plaintiffs filed the instant
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application seeking amendment by incorporating certain
subsequent events that had transpired during the pendency of
the suit by way of amendment to the body of the plaint as well
as the prayer column. The said application having been
opposed by the petitioner, the trial Court proceeded to pass the
impugned order allowing the application by holding as under:
ORDER ON I.A. No.9
I.A.No.9 is filed by the plaintiffs under Order 6 Rule
17 r/w Sec.151 of CPC praying this Court to permit
them to amend the plaint and prayer as prayed in
the application, in the interest of justice and equity.
2. a) Along with I.A.No.9, the plaintiff No.4(c) has
filed affidavit and stated that, his father Venkatappa
and his family members have filed this suit against
the defendants seeking for the relief of declaration,
mandatory injunction, permanent injunction and
other consequential reliefs. At the time of filing the
suit, the defendant No.1has put up pillars by
encroaching the small portion of the suit schedule
property. During the pendency of the suit, the
defendant No.1 has put up the pillars by
encroaching the entire suit schedule property. The
defendant No.1 is the influenced lady and she has
managed the officials and constructed pillars by
encroaching the entire suit schedule property to put
up illegal construction with an intention to grab their
valuable property without having any right, title and
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interest over the suit schedule property. The DW.1
in his cross-examination has admitted that, the plaint
schedule boundaries and the plaint schedule
property belongs to them, on that ground, it is just
unnecessary to direct the defendant No.1 remove
the illegal constructed pillars by encroaching the
entire suit schedule property, by way of granting
mandatory injunction. The plaintiffs have made out a
prima facie case against the defendant No.1 to seek
the relief by way of amendment and the said
amendment is very much necessary for proper
adjudication between them. Hence, it is just and
necessary to permit them to amend the plaint and
prayer column as sought for in the annexed
application, in the interest of justice and equity. The
amendment sought for in the application will not
change the nature and character of the suit, hence,
they have sought amendment to amend the plaint
and prayer column on subsequent events occurred
during the pendency of the suit. If the application is
allowed, no prejudice will be caused to the other
side. On the other hand, if this application is not
allowed, they will be put to great hardship, loss and
inconvenience. On these grounds, the plaintiffs pray
to allow I.A.No.9.
3. The defendant No.1 has filed objection to
I.A.No.9. In the objection, it is contended that, the
application is not maintainable. The application is
filed by the plaintiffs when the matter is posted for
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arguments on merits. The application deserves to be
dismissed for delay and seeking prayer and
pleadings after a lapse of 10 years. The defendant
No.1 reply to proposed para 11(a), the averments
sought in para 11(a) by the plaintiffs is denied as
false and a created false story to cover up the
lacuna and mistakes. The defendant No.1 has never
put up construction over the defendant No.1's
property from the year 2012 itself when there was a
stay in O.S.No.4507/2012 and the defendant No.1
never encroached any portion of the property as
alleged by the plaintiffs and the pillars were
constructed prior to the suit of the plaintiffs. The
defendant No.1 reply to proposed prayer (b), the
prayer sought by the plaintiffs is not maintainable
and the plaintiffs cannot seek two reliefs in a single
prayer. On the said ground, the application deserves
to be dismissed. The plaintiffs are seeking the said
relief after 10 years from filing of the suit. The
defendant No.1 submits that, the plaintiff No.4(c)
has sworn to wrong affidavit by making utter false
statement for the purpose of the amendment
application. All the other averments made in para 3
of the affidavit is denied as false. The averments
made in para 4 and 5 of the affidavit that, the
defendant No.1 has made admissions is false, the
defendant No.1 never admitted that, he has put up
construction over the plaintiff's unidentifiable
property. All the other averments are denied as
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false. The application filed by the plaintiffs is barred
by the limitation and the application is filed after the
completion of the trial by both the parties. The
plaintiffs are not due diligent in seeking the belated
amendment and there are no bonafide reason to
allow the applications and it deserves to be
dismissed.
4. Heard the arguments from both the sides.
Perused the entire materials on record along with
citations.
5. Now the points that arise for my consideration are
as follows :-
1. Whether I.A.No.9 filed by the plaintiffs
under Order 6 Rule 17 r/w Sec.151 of CPC praying
this Court to amend the plaint as prayed, deserves
to be allowed?
2. What Order ?
6. My answer to the above points are as under:
Point No.1 :- In the affirmative,
Point No.2 :- As per the final order
for the following:
REASONS
7. POINT No.1:- This suit is filed by the plaintiffs
against the defendants to declare the plaintiffs are
the owners in possession of the plaint schedule
property and the order of dismissed passed by the
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Joint Commissioner in ¥ÀæPÀgÀt
¸ÀASÉå.CO£ÀªÀD/gÁgÁ£ÀªÀ/¦.Dgï../1305/2012-13 dated
30.03.2013 is not binding and it is null and void; and
for mandatory injunction directing the defendants to
remove the concrete pillars encroached by the 1st
defendant on the southern side of the rare portion of
the suit schedule property i.e., C, D, E, F shown in
the sketch out of the suit schedule property; and for
permanent injunction restraining the defendants or
any person claiming through him from putting up any
construction on the suit schedule property.
8. In the plaint, the plaintiffs have stated that, they
are the owners and in possession and enjoyment of
the property in CTS No.1101, Old Panchayath Katha
No.91/111 measuring east to west 14 yards or 42
feet and north to south 6 ½ yards or 19 ½ feet with a
mud house of 5 ankana situated at Peenya Village,
Bengaluru North Taluk, Bengaluru i.e., the suit
schedule property. The suit schedule property is the
ancestral property having purchased by the
grandfather of the plaintiffs herein namely
Sri.Buddaiah from one Sri.Channappa under the
registered sale deed dated 14.08.1893. After his
death, the plaintiffs are in possession of the suit
schedule property as his successors. The 1st
defendant alleged to have purchased a portion of
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measuring east to west 75 feet and north to south
65 feet from one Smt.Rangamma under the sale
deed dated 23.06.2006. This sale deed has been
rectified by means of rectification deed on two
occasions. Thereby the boundaries of the property
which the 2nd defendant sold to the 1st defendant
have been changed to suit their convenience. The
revenue authorities have not compared the mother
deed through which the property came to the share
of the 2nd defendant. The 2nd defendant. has
conveyed more than what she got in the originals
sale deed dated 27.03.1910 and there is no
measurement and the boundaries mentioned in her
panchayath palupatti dated 15.04.1995, through
which the property came to the share of the 2nd
defendant. Therefore, defendant Nos.1 and 2 by
colluding got the sale deed rectified. On the basis of
the rectification, the 1st defendant obtained the
katha by giving boundaries including the adjacent
property belongs to the plaintiffs. Immediately, after
knowing the fact, the plaintiffs filed a review petition
before the Joint Commissioner of BBMP to review
the order of the Assistant Revenue Officer and said
review petition came to be rejected on the ground of
limitation. Thereafter, they came to know the said
fact only when the 1st defendant proceeded for
construction illegally by encroaching the suit
schedule property. Hence, the plaintiffs have filed
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this suit for mandatory injunction to direct the
defendants to remove the concrete pillars.
9. Now, the matter is posted for further cross-
examination of DW.1. After that, the plaintiffs have
come up with IA stating that, during the pendency of
the suit, the defendants have put up pillars by
encroaching the entire suit schedule property though
the plaintiffs have resisted the illegal acts of the
defendants, as such, the plaintiffs have filed this suit
for mandatory injunction to remove the pillars
constructed by the defendant No.1 by encroaching
the entire suit schedule property.
10. The defendant No.1 has contended that, the
property in question was a backyard of a house
which was the ancestral property of P.V.Muniyappa.
After his death, at a partition dated 14.05.1995
backyard lying behind the Government High School
fell to the share of his wife Smt.Rangamma. This
property, which was within the limits of Peenya
Panchayath was assessed to tax in the name of
Venkatappa, the father of P.V.Muniyappa. Since this
property lay just behind the property of the 1st
defendant, the 1st defendant agreed to purchase the
same from Smt.Rangamma and purchased the said
property under the sale deed dated 23.06.2006 and
the boundaries are mentioned in the sale deed. After
the defendant No.1 purchased this property, the City
Survey number in respect of the property assigned
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CTS No.1101 which was earlier numbered as
Kaneshumari No.106 and presently the property is
assigned BBMP No.106/4. The property purchased
by the defendant No.1, which was lying within the
village limits, the roads which served as access to
the suit schedule property though running in private
late could not be easily identified. It was under those
circumstances that, the 1st defendant after proper
identification got the sale deed rectified under two
rectifications dated 11.09.2006 and 27.07.2011. The
name of the 1st defendant is entered in the revenue
records and she paid the tax in respect of the suit
schedule property as well as the arrears from the
year 1995.
11. To establish the case, the plaintiffs have
produced the photograph. Only on the basis of the
photograph, it cannot be said that, during the
pendency of the suit, the defendants have
encroached the entire land and illegally constructed
the pillars. To prove all these facts, evidence is
required and even the burden is on the plaintiffs to
prove that, the defendants have encroached the
entire property of the plaintiffs and put up the pillars
by encroaching the suit schedule property.
12. The learned counsel for the defendant has relied
upon the judgment of the Hon'ble Apex Court
reported in (2013) 9 Supreme Court Cases 485 in
the case of Mashyak Grihnirman Sahakari Sanstha
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Maryadit Vs Usman Habib Dhuka and others. I have
gone through the ruling. The principle is not in
dispute. In that case, before the trial Court, the
application was rejected on the ground that, facts
were within the knowledge of the party regarding
proposed amendment at the time of filing the suit,
but they failed to incorporate the same. The said
order was challenged before the Hon'ble High Court
of Karnataka and the Hon'ble High Court of
Karnataka had set aside the order and permitted the
plaintiff to amend the plaint. Aggrieved by the said
order, the defendant filed an appeal before the
Hon'ble Supreme Court of India. The Hon'ble Apex
Court allowed the appeal on the ground that, it was
only a belated one but was clearly an afterthought
for the obvious purpose to avert the inevitable
consequence and restored the order of the trial
Court. This ruling is not helpful to the case of the
defendant since the defendants have not placed any
materials to establish that facts were within the
knowledge of the party regarding proposed
amendment.
13. Further, the learned counsel for the plaintiffs
have relied upon another ruling reported in (2018) 6
Supreme Court Cases 567 in the case of Gurbakhsh
Singh and others Vs Buta Singh and another. I
have gone through the said ruling. The principles
are aptly applicable to the case in hand. As
observed by the Hon'ble Apex Court, the
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amendment is necessary for determining the real
question in controversy between the parties.
14. In view of the above observations, in the present
case, if the amendment is allowed, no injustice will
be caused to the other side as the burden is on the
plaintiffs to prove that, the defendants have
encroached the entire suit schedule property and
put up the pillars. Further, if the amendment
application is allowed, it will not change the nature of
the suit. Hence, it is just and necessary to allow the
amendment application by imposing cost.
Accordingly, I answer point No.1 is in the affirmative.
15. POINT No.2 :- In view of the above findings, I
proceed to pass the following :-
ORDER
"I.A.No.9 filed by the plaintiffs under Order 6
Rule 17 r/w Sec. 151 of CPC is hereby allowed with
cost of Rs.2,000/-.
The plaintiffs are permitted to amend the
plaint as prayed in I.A.No.9 and to furnish the
amended plaint on the next date of hearing."
4. A perusal of the impugned order will indicate that
the trial Court has come to the correct conclusion that the
proposed amendment was necessary for adjudication of issues
in controversy between the parties, particularly when the
proposed amendment related to the subsequent events that had
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transpired during the pendency of the suit and no prejudice
would be caused to the petitioner if the amendment was allowed
since petitioner would have an opportunity to file her written
statement to the amended plaint and necessary directions can
be issued to safeguard the defences/contentions of the
defendants.
5. In view of the aforesaid circumstances, I am of the
view that the impugned order passed by the trial Court does not
suffer from any illegality or infirmity warranting interference of
this Court in exercise of its powers under Article 227 of the
Constitution of India, as held by the Apex Court in the case of
Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC
423.
6. In the result, I proceed to pass the following:
ORDER
a) The petition stands disposed of without interfering
with the impugned order.
b) It is however made clear that the proposed
amendment sought for in I.A.No.IX shall not relate
back to the date of the suit but shall be
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reckoned/considered from 15.12.2022 on which
date, I.A.No.IX was filed by the plaintiff.
c) Liberty is reserved in favour of the petitioner to file
additional written statement to the amended plaint
and take up all contentions, defences etc, including
limitation.
All rival contentions of all aspects of the matter including
limitation etc., are kept open and no opinion is expressed on the
same.
Sd/-
JUDGE
RB
