Karnataka High Court
Dr Suresh vs Dr R P Prashanth on 10 April, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 9715 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No. 9715 OF 2024 (GM-CPC)
BETWEEN:
DR. SURESH
S/O LATE KRISHNOJI RAO
AGED ABOUT 73 YEARS
KRISHNA PEDIATRIC HOSPITAL
LAXMI BAZAR
CHITRADURGA - 577 501.
Digitally signed by ...PETITIONER
LAKSHMINARAYANA
MURTHY RAJASHRI (BY SRI SIDDAPPA B M, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
DR. R P PRASHANTH
S/O R K PREMAKUMAR
AGED ABOUT 54 YEARS
RESIDING AT 2ND CROSS
V P EXTENSION
CHITRADURGA - 577 501.
...RESPONDENT
(BY SRI M S NARAYAN, ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSITITUTION OF INDIA PRAYING TO QUASHING
ORDER PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND
JMFC, CHITRADURGA ON THE APPLICATION IA No. 8 UNDER
ORDER VI R,17 OF CPC IN OS No. 427/2014 DATED 17.2.24, VIDE
ANNEXURE-E AND ETC.,
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 9715 of 2024
ORDER
1. This petition by defendant No.1 in O.S.No.427/2014 on the
file of the Principal Civil Judge and J.M.F.C, Chitradurga is directed
against the impugned order dated 17.02.2024, whereby the
application - I.A.No.8 filed by respondent No.1 - plaintiff under
Order VI Rule 17 of CPC., for amendment of the plaint was allowed
by the Trial Court.
2. A perusal of the material on record would indicate that
respondent No.1 - plaintiff instituted the aforesaid suit against the
petitioner - defendant No.1 and defendant No.2 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. Prior to commencement of trial,
the respondent - plaintiff filed the instant application seeking to
incorporate additional pleadings and corresponding prayers in the
prayer column in the plaint. The said application having been
opposed by the petition, the Trial Court proceeded to pass the
impugned order, allowing the application by holding as under;
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"ORDER ON I.A.No.8
"The plaintiff has filed I.A.No.8 Under Order 6 Rule 17 r/w
Sec.151 of CPC with a prayer to permit the plaintiff to amend
the plaint.
2. In the annexed affidavit, the plaintiff stated that, he has
filed the present suit against the defendants for declaration
that, the eastern side wall of the property
bearing Assessment No.64/62/4649/4163/2521/4144/2522
measuring East-West: 30 feets X North-South: 84.6 feets
situated at Lakshmi Bazaar, 4th Block, Chitradurga is the
exclusive wall belongs to plaintiff. The plaintiff also sought for
consequential relief of Mandatory Injunction as well as
Permanent Injunction.
3. The plaintiff alleged that, after issuance of suit summons,
the defendants appeared through their counsel and filed
Written Statement denying the claim of plaintiff. On the basis
of rival pleadings, this court has framed issues. After hearing
both the parties that, this court permitted the plaintiff to
incorporate para 4(a)(a) to 4(d). Further after considering the
claim of plaintiff, Hon'ble Court was pleased to pass an order
of Temporary Injunction restraining the defendant No.1 and
others claiming under him from making any construction over
the suit schedule properties without obtaining any license
from the local authorities as per order dated 15.09.2014. The
defendant No.1 even though having knowledge of order of
Temporary Injunction has obtained permission from
defendant No.2 on 10.11.2014 for repair of machineries in
nursing home building and for other modifications.
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4. In the guise of repar, the defendant no.1 constructed
rooms in the 2nd floor of his building without getting
approved plan and license by violating the terms of
permission granted on 10.11.2014. Thereby the defendant
no.1 has committed highly illegal act for which the defendant
no.2 is the silent spectator.
5. At the time of constructing second floor illegally, the
defendant No.1 put up stair case and pierced iron rods on to
eastern side wall of plaintiffs building. The plaintiff has fixed
PVC pipes with 3-4 inches diameter for flow of water from his
building towards eastern side. The defendant No.1 at the
time of construction has illegally removed those PVC pipes
and plaster eastern side wall of plaintiff. As a result the flow
of water is completely blocked and due to stagnation of
water, the plaintiffs building became damp and roofing is
peeled of. The iron rods and RCC roofing are visible. Due to
rain water stagnation extensive damage caused to the walls
of building. In addition the building has become unfit for use.
6. The plaintiff had let out the entire building except the shop
in the ground floor to Dr. Laxmi Prashantha, Gynecologist,
having taking the building on rent, the tenant started running
nursing home in the name and style of Krishna Nursing
Home. She was paying rent of Rs.1,00,000/- p.m., from
20.11.2012 till November 2017. The defendant No.1 caused
extensive damage to the building belonging to the plaintiff, as
a result, some portion of the building became unsuitable for
the tenant to run the nursing home. Under these
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circumstances, the tenant vacate the some portion of the 1st
floor and it is kept under lock and key.
7. Consequently, the rate of rent which was Rs.1,00,000/-
p.m., is reduced to Rs.40,000/- p.m., from December 2017.
In view of the above stated, caused due to high handed and
highly illegal act of the defendant No.1, the plaintiff was
suffered loss from December 2017. From December 2017 till
March 2023. The plaintiff has suffered loss of Rs.38,40,000/-
for 64 months. The plaintiff has restricted his claim towards
loss of rent for a period of 36 months only at the rate of
Rs.60,000/- p.m., amounting to Rs.21,60,000/-.
8. There is imminent danger to the patients in the wards in
plaintiffs building. The defendant No.1 has caused damage
to an extent of Rs.6,00,000/- due to the above stated acts.
Therefore, the defendant No.1 is bound and liable to make
good the loss caused to the building of the plaintiff. If the
present suit is allowed, no prejudice will be caused to
defendant No.1. On the other if the present application is not
allowed, the plaintiff will be put to great loss and hardship.
The plaintiff has got prima-facie case and balance of
convenience lies in his favour. Hence, prays to allow the
application.
9. On the other hand, the defendant filed objections
contending that, the present application is not maintainable in
law and on facts. The plaintiff has sworn sworn false affidavit
on false facts. The application lacks from bonafide reasons.
The alleged proposed amendment sought by the plaintiff in
plaint after para No.4(d) to add para No.4(e), (f), (g) and para
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No.8(b), para N.10(kk) and (kl) are all denied as completely
false and further submitted that, the plaintiff is not the owner
in possession of the alleged suit schedule property. When
such being the case on hand, the plaintiff has no locus-standi
to filed this application, which is not sustainable in law and
liable to be dismissed.
10. The plaintiff for the purpose of filing of this application has
alleged to be created, concocted the facts which are
mentioned in the proposed amendment. The present suit was
filed on 11.09.2014 for the relief of Declaration and Injunction
against the defendants. The defendant No.1 has filed Written
Statement on 14.11.2014. The present application is filed on
05.04.2023 for the relief of damages of Rs.21,60,000/- after
the lapse of nearly 9 years. Hence, the alleged proposed
amendment sought for claiming damages, for the cause of
action is barred by law of limitation. The plaintiff is alleged to
be owner of the suit schedule property is completely false.
The law of acquiescence is applicable to be case on hand.
The plaintiff is not entitled for any reliefs as sought on the
alleged proposed amendment. The plaintiff is having habit of
filing similar applications. The proposed amendment with
respect of relief change of nature and characteristics of the
suit. The amendment sought for the plaintiff is nothing but
new pleadings, it will introduce new cause of action and it will
change the nature of the suit. The proposed amendment
sought by the plaintiff is no way concerned to the case on
hand and moreover, the Mandatory Injunction without seeking
the possession is not in law. The plaintiff ought to have paid
the ad-velurum court fee. If the proposed amendment is
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allowed, the defendant No.1 will be put to irreparable loss and
injury which cannot be compensated by any means. On these
grounds, the defendant No.1 prays to dismiss the application
filed by the plaintiff with exemplary cost.
11. I have heard the arguments canvassed by both side
counsels and gone through the materials on record.
12. The points that would arise for my consideration are as
follows;
1. Whether the Plaintiff has made out prima-
facie case for the relief of declaration and
consequential relief of permanent as well as
mandatory injunction as prayed for in I.A.No.87
2. What Order?
13. My answers to the above points are as follows:-
Point No.1: In the Affirmative;
Point No.2: As per the order, for the
following:
REASONS
14. Point No.1:- It is evident from materials on record that,
the plaintiff has filed present suit against the defendants for
the relief of Declaration and Consequential relief of
Permanent Injunction with Mandatory Injunction. Now by way
proposed amendment the plaintiff prays for damages also.
15. Now the question arose before this court is whether the
amendment is necessary for the determination of the real
question in controversy between the parties. Before
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discussion of the above point, this court glance the provision
under Order 6 Rule 17 of Code of Civil Procedure. Hence, it
is relevant to mention under Order 6 Rule 17 of Code of Civil
Procedure;
Rule 17 provides for amendment of pleading it
reads under;
The Court may at any stage of the proceedings
allow either party to alter or amend his pleadings
in such manner and on such terms as may be
just, and all such amendments shall be made as
may be necessary for the purpose of determining
the real questions in controversy between the
parties.
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."
The said provision makes it clear that at any stage of
the pleadings allow the either party to alter or amend his
pleadings. If the proposed amendment be necessary for the
purpose of determining the real question in controversy
between the parties.
16. The plaintiff alleged that, the defendant No.1 has violated
the conditions of permission issued by defendant No.2 on
10.11.2014 and constructed rooms in the 2nd floor of his
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building. Further the defendant No.1 has illegal removed the
PVC pipes which are put by the plaintiff for flow of water.
Due to removal of these pipes and piercing of iron road in the
eastern side wall of the building, the water is collecting on
the roof. Due to stagnation of water, the building of plaintiff
became damp and became unfit for use. There is a danger
to the patients in the wards in the building plaintiff.
17. The plaintiff has rented his building to one Dr. Lakshmi
Prashantha who is running Krishna Nursing Home in the suit
schedule property. Due to the illegal and high handed Act of
defendant No.1 the tenant reduced the rent to Rs.40,000/-
from Rs.1,00,000/-, since the part of the building became
unfit for use. Therefore, the plaintiff is claiming damages at
the rate of Rs.21,60,000/- for 36 months.
18. The plaintiff has filed the suit in the year 2014 and it is
alleged that, defendant has constructed the rooms in 2nd
floor in the year 2017. The act of the defendant No.1 caused
loss and damage to property of plaintiff. It is the facts which
are narrated by the plaintiff and which are alleged to be
inserted in the plaintiff plaint by way of proposed
amendment. The plaintiff by filing the suit has sought for
declaration and now he has claiming for damages. The
proposed amendment sought by the plaintiff does not
change the nature of the suit and cause of action, since the
facts proposed to be inserted by way of amendment are the
subsequent events. If the present application is not allowed it
will lead to multiplicity of proceedings.
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19.It is well settled law that after commencement of trial no
amendment shall be allowed unless plaintiff shows that in-
spite of due diligence he could not have sought for the
amendment before the commencement of trial. Even the
defendant No.1 taken defence that, proposed amendment of
the plaintiff is barred by law of limitation. But at this stage,
the defense of defendant No.1 cannot be taken into
consideration, since the dispute between plaintiff and
defendants is still pending for adjudication and the plaintiff
has sought for amendment in respect of subsequent events.
Further the proposed amendment is necessary for the
purpose of determination of the real question in controversy
between the parties. If the present application is not allowed
the plaintiff will be put to loss and hardship, than the
defendant No.1. Therefore, in view of above discussions,
this court is of the opinion that, the plaintiff has made out
valid grounds to allow the application. Accordingly, I answer
Point No.1 in the Affirmative.
20.Point No.2:- For the reasons stated above, I proceed to
pass the following:
ORDER
The plaintiff has filed I.A.No.8 Under Order 6 Rule 17 read
with Sec. 151 of CPC, is hereby allowed."
3. As could be seen from the proposed amendment, the Trial
Court has come to the correct conclusion that the pre-trial
amendment is necessary and relevant for the purpose of
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adjudication of the issues in controversy between the parties. The
Trial Court has also noticed that by way of the proposed
amendment, the respondent - plaintiff merely seeks to introduce
certain subsequent events that had allegedly transpired after
institution of the suit which could not have been pleaded by the
respondent - plaintiff at the time of institution of the suit. The Trial
Court also held that if the amendment was refused, the same would
lead to multiplicity of proceedings and if the same was allowed, no
prejudice would be caused to the petitioner who would be entitled to
file the written statement and contest the amended pleadings.
4. In this context, it is relevant to state that though the Trial
Court has not specifically stated that the question of limitation is to
be kept open and the application shall not relate back to the date of
the suit, but shall be reckoned from the date of the application, in
the light of the principles enunciated by the Hon'ble Apex Court in
the case of Sampath Kumar Vs. Ayyakannu and Ors, AIR 2002
SC 3369; L.C.Hanumanthappa Vs. H.B.Shivakumar,
(2016) 1 SCC 332, as well as the judgment of the Hon'ble Apex
Court in the case of Revajeetu Builders and Developers Vs.
Narayanaswamy, (2009) 10 SCC 84 and Life Insurance
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Corporation of India Vs. Sanjeev Builders Private Limited and
Ors., AIR 2022 SC 4256, I am of the considered opinion that the
proposed amendment deserves to be allowed, subject to the
condition that the same will not relate back to the date of the suit,
but shall be reckoned / considered from the date of the application
that was filed on 05.04.2023 and by leaving open the question of
limitation to be decided by the Trial Court at the time of final
disposal of the suit. Accordingly, I am of the view that the impugned
order deserves to be modified and necessary directions be issued
to the Trial Court in this regard.
5. In the result, the following;
ORDER
(i) The petition is hereby disposed off.
(ii) The impugned order dated 17.02.2024 is hereby
modified.
(iii) I.A.No.8 filed by the respondent - plaintiff stands
allowed, subject to the condition that the proposed
amendment shall not relate back to the date of the
suit, but shall be reckoned / considered from the
date of the application I.A.No.8 which was filed on
05.04.2023.
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(iv) Liberty is reserved in favour of the petitioner to file
additional written statement to the amended plaint
and take up all contentions including the defence of
limitation, pecuniary jurisdiction etc.,
(v) All rival contentions between the parties including
limitation, pecuniary jurisdiction etc., are kept open
and no opinion is expressed on the same.
Sd/-
JUDGE
GH
