Karnataka High Court
K. V. Maruthi Puranika S/O Sri K Vasudeva ... vs Somappa S/O Shekarappa on 2 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:10950
WP No. 104487 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104487 OF 2024 (GM-CPC)
BETWEEN:
K.V. MARUTHI PURANIKA,
S/O. SRI K. VASUDEVA PURANIKA,
AGED ABOUT 61 YEARS,
R/O H.NO. 39, SINDHIGI COMPOUND,
NEAR RAGHAVENDRA TALKIES ROAD,
BALLARI-583101.
REP. BY HIS GPA HOLDER,
P. SRINIVASACHAR S/O. P. KRISHNA MURTHY,
AGED ABOUT 70 YEARS,
ARCHAKA, SRI VENKATESHWARA SWAMY TEMPLE,
R/O. WARD NO. 19, SLV TEMPLE,
PATEL NAGAR, BALLARI TALUK AND DISTRICT-583101.
...PETITIONER
(BY SMT. V. VIDYA, ADVOCATE)
AND:
SOMAPPA S/O. SHEKARAPPA,
AGED ABOUT 65 YEARS,
GIRIJA A PRESIDENT
BYAHATTI
SRI. LAKSHMI VENKATESHWARA SEVA TRUST,
Location: HIGH
COURT OF
R/O. NO.31, PATEL NAGAR,
KARANTAKA
DHARWAD BALLARI TALUK AND DISTRICT-583101.
BENCH
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION QUASHING THE IMPUGNED ORDER PASSED BY THE
LEARNED PRL. CIVIL JUDGE AND JMFC AT BALLARI IN O.S NO.
735/2022 DATED 20.06.2024 ON I.A. NO.7 FOUND AT ANNEXURE-E,
ALLOW THIS WRIT PETITION WITH COSTS AND GRANT SUCH OTHER
RELIEFS AS THIS HON'BLE COURT DEEMS FIT TO GRANT, IN THE
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND
EQUITY.
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NC: 2024:KHC-D:10950
WP No. 104487 of 2024
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
This petition is filed praying this Court to quash the
order dated 20.06.2024 passed by the Prl. Civil Judge and
JMFC, Ballari, in O.S.No.735/2022 on I.A.No.7 vide
Annexure-E in allowing the amendment as sought in the
proposed written statement.
2. Brief facts of the case are that the petitioner
has filed O.S.No.735/2022 against the respondent for the
relief of permanent injunction. After filing of the written
statement, the respondent filed I.A.No.7 under Order VI
Rule 17 of Code of Civil Procedure, 1908 (for short, 'CPC')
and the same was opposed by the petitioner by filing
objections. The Trial Court allowed the said application
permitting the defendant to amend the written statement.
Hence, this petition is filed.
3. The main contention urged by the petitioner's
counsel is that the Trial Court has committed an error in
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allowing the application for amendment which changes the
nature of the issue raised in the written statement and
amendment sought would clearly indicate that the said
amendment is sought as an afterthought to fill in the
lacunae in pleadings of the defendant. The Trial Court has
failed to consider the said aspect of the matter. The
amendment sought is unnecessary, scandalous, frivolous
and vexatious and it is filed only to prejudice, to
embarrass and to delay the fair trial of the suit. The
counsel would also vehemently contend that Order VI Rule
16 of CPC is very clear that if any pleading is made which
is unnecessary, scrupulous and vexatious, the same is to
be strike off. It is contended by the petitioner's counsel
that the Trial Court while considering the application for
amendment ought to have taken note of the settled law
that whether the amendment changes the very nature of
the defence which has been taken earlier and
subsequently. Such being the case, this scandalous
statement cannot be entertained by way of amendment.
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4. Having heard the counsel for petitioner and
perused the material on record, it is noticed that the suit is
filed for the relief of permanent injunction and even earlier
the written statement was not filed within the stipulated
time and written statement was filed belatedly when the
case was set down for cross-examination. Having read the
allegations, particularly, in paragraph No.13(h), the
allegations are made on the GPA holder of the plaintiff that
no right devolve to him to perform pooja and he is having
many habits like drinking alcohol and he is not performing
pooja properly and not maintaining the temple timings.
The allegations are also made in paragraph No.13(i) that
the plaintiff with his friend doing alcoholic parties with
non-vegetarian items in temple premises rooms and when
this fact came to the knowledge of the defendant along
with committee members, removed him from the said
room. It is further alleged that the plaintiff used to stole
the Hundi amount of the temple and same cannot be
entertained by way of amendment. When the relief sought
in the suit for permanent injunction to restrain the
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defendants from interfering with peaceful possession of
plaintiff's suit property and not to interfere with the
management of the temple situated in the suit schedule
property. When the defendant appears and files written
statement making allegations against the plaintiff in
carrying out the pooja and using of alcohol, non-
vegetarian in the temple, the allegations cannot be
considered as scandalous and vexatious. Making of factual
allegations against the plaintiff that he is not performing
pooja properly particularly the GPA holder is not
performing the duty will not change any cause of action as
they are only factual allegations. The Trial Court has also
taken note of the principles laid down in the judgment of
the Hon'ble Apex Court in the case of Vinith Kumar Vs.
Mangal Sen Wadhera1 wherein it is held that normally
amendment is not allowed, if it changes the cause of
action and where the amendment does not constitute an
addition of a new cause of action or raise a new case, but
(1984) 3 SCC 352
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amounts to no more than adding to the facts already on
record, the amendment would be allowed even after the
statutory period of limitation. The Trial Court has also
taken note of the principle laid down by the Hon'ble Apex
Court in the case of Narayana Pillai Vs. P. Pillai2
wherein it is held that it is well settled principle of law that
the Courts are more liberal in allowing an amendment of
written statement rather than the plaint.
5. The counsel would also submit that Order VI
Rule 17 of CPC is very clear with regard to striking out the
pleadings if it is unnecessary, scandalous, frivolous or
vexatious and having considered the pleadings particularly
in paragraph Nos.13(h) and 13(i) with regard to not
properly carrying out the work of Pooja is concerned. An
allegation is made and hence, the amendment cannot be
termed as it is unnecessary, scandalous, frivolous and
vexatious as contended by the petitioner's counsel. Hence,
(2000) 1 SCC 712
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I do not find any force in the contention of the petitioner's
counsel.
6. At this stage, petitioner's counsel would
vehemently contend that the evidence has been
commenced and at the belated stage filed application and
admittedly earlier also the written statement was not filed,
it is only after the commencement of evidence, the
defendants were permitted to file the written statement
and additional written statement. It is important to note
that reasons are assigned for non-filing of written
statement earlier and commencement of the evidence
itself is not a ground to reject the amendment as sought
since the specific allegation is made with regard to
discharging of duty of the plaintiff in performing the pooja
and when such allegations are made and the same cannot
be prevented by seeking amendment and hence, I do not
find any force in the contention of the petitioner's counsel
that even after commencement of evidence the claim
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cannot be entertained and the amendment cannot be
allowed.
7. In the case on hand, specific allegation is made
against the plaintiff particularly in those paragraphs
sought to be inserted and hence, the defendants cannot be
prevented. When the allegations are made against the
plaintiff by the defendants, the defendants have to prove
the same. Hence, I do not find any error committed by
the Trial Court in allowing the application for amendment
and hence, there is no merit in the writ petition to quash
the same.
8. In view of the discussions made above, I pass
the following :
ORDER
Writ Petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
NAA
CT-MCK
