Karnataka High Court
Shatavaji S/O Mahadev Nayaka @ Gaval vs Santa Sena Maratha Navik Samaj ... on 31 January, 2025
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WP No. 201889 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.201889 OF 2021 (GM-CPC)
BETWEEN:
SHATAVAJI
S/O MAHADEV NAYAKA @ GAVAL
AGE: 64 YEARS, OCC: BUSINESS,
R/O BEHIND THE ALAVI MASJID,
BEHIND CMC LATRINE,
NEAR SAMAGAR COLONY, VIJAYAPURA.
...PETITIONER
(BY SRI. MANVENDRA REDDY, ADVOCATE)
AND:
SANTA SENA MARATHA NAVIK SAMAJ
VIJAYAPURA, REPRESENTED
Digitally signed BY ITS PRESIDENT DONDIRAM KSHIRASAGAR,
by SACHIN AGE: 60 YEARS, OCC: BARBAR,
Location: High R/O MATHAPATI GALLI, VIJAYAPURA-586101.
Court Of ...RESPONDENT
Karnataka (BY SRI. D. P. AMBEKAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH / SET
ASIDE THE IMPUGNED ORDER ON I.A.NO. 17 DATED
19.09.2021 PASSED BY THE PRINCIPAL CIVIL JUDGE,
VIJAYAPUR, O.S. NO. 121/2005 VIDE ANNEXURE-F.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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WP No. 201889 of 2021
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
ORAL ORDER
The defendant in O.S.No.121/2005 pending on the
file of the Principal Civil Judge, Vijayapur (henceforth
referred to as 'Trial Court') is before this Court challenging
the correctness of an order dated 19.07.2021 by which, an
application filed by the plaintiff under Order VI Rule 17 of
the Code of Civil Procedure, 1908 (henceforth referred to
as 'CPC') was allowed.
2. The parties shall henceforth be referred to as
they were arrayed before the Trial Court. The petitioner
herein was the defendant, while the respondent was the
plaintiff before the Trial Court.
3. (i) A suit in O.S.No.121/2005 was filed for
declaration of title of the plaintiff and for mandatory
injunction to direct the defendant to demolish the davani
and water tank put up by him over the suit property. The
construction put up by the defendant over the suit
property was identified in a sketch attached to the plaint.
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(ii) The suit was contested by the defendant, who
denied the ownership of the plaintiff to the suit property
and set up adverse title and claimed that he had perfected
his title over the suit property by adverse possession.
(iii) Based on these contentions, the Trial Court
framed the following issues:-
1) Whether the plaintiff proves that it is the
absolute owner of the suit property?
2) Whether it further proves that defendant
has encroached 'suit property' and
illegally put up construction of shed
thereon?
3) Whether the defendant proves that he
has perfected his title to the suit property
by way of adverse possession?
4) Whether the defendant proves that the
suit of the plaintiff is barred by time?
5) To what reliefs the plaintiff is entitled to?
6) What order or decree?
Additional issue:
1) Whether the defendant proves that the
suit is barred under the provisions of the
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Karnataka Slum Area Development Act,
1973?
(iv) After the evidence of the parties was adduced,
the defendant filed an application for appointment of a
Commissioner for local inspection. The Commissioner
submitted a report stating that the defendant had
constructed a building measuring 2113 sq. ft. over the suit
property after demolishing the water tank and davani.
(v) The plaintiff was therefore advised to seek for
amendment of the suit relief to direct the defendant to
demolish the house measuring 2113 sq. ft. shown by the
letters 'EFGH' in the amended plaint sketch.
(vi) The said application was contested by the
defendant, who contended that the claim of the plaintiff
that the defendant had constructed a house measuring
2113 sq. ft. and had not changed the nature of the water
tank and the davani was false. He claimed that he was in
possession of the suit property, which was much more
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than what was mentioned in the plaint sketch and that he
had been asserting the same throughout the proceedings
and that the report of the Commissioner supported his
contention. He contended that a building measuring 2113
sq. ft. cannot be constructed overnight that too, without
the notice and knowledge of the plaintiff. Therefore, he
contended that the plaintiff cannot be permitted to amend
the plaint that too, at the stage when the suit was set
down for arguments.
(vii) The Trial Court in terms of the impugned order,
allowed the application on the ground that it was
necessary for effectively and conclusively determining the
rights of the plaintiff and defendant. It held that the
plaintiff had pleaded that it came to know of the
construction of a larger portion only after the Court
Commissioner submitted a report and therefore, held that
allowing the amendment application would not change the
nature of the suit or the cause of action.
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4. Being aggrieved by the said order, the
defendant is before this Court.
5. The learned counsel for the defendant
contended that under proviso to Order VI Rule 17 of CPC,
an amendment of pleadings cannot be allowed after issues
are framed. He submits that a party seeking amendment
after issues are framed, is bound to prove that despite
exercise of due diligence, he could not seek for
amendment at the earliest point in time. He submits that
the defendant has been contending throughout the
proceedings that he is in possession of an area measuring
40 ft. x 20 ft. with the notice and knowledge of the
plaintiff but the plaintiff had chosen to seek for the
mandatory relief to demolish the construction of a water
tank and davani. He contends that the defendant could
not have constructed a building measuring 2113 sq. ft.
during the pendency of the suit and without the notice and
knowledge of the plaintiff. Therefore, he contends that the
construction, which was noticed by the Commissioner was
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in existence as on the date of the suit and hence, the
plaintiff was bound to seek for the reliefs in respect of the
entire construction put up over the suit property. Thus, he
contends that the plaintiff had not exercised due diligence
when the suit was filed but has woken up after the
Commissioner submitted a report stating that the
construction measuring 2113 sq. ft. existed over the suit
property.
6. (i) Per contra, the learned counsel for the
plaintiff contends that the defendant specifically contended
in the written statement as follows:-
"This defendant is the owner in actual
possession of CTS No.87 and the defendant has paid
tax to the CMC Bijapur and this defendant is in
possession of the area measuring 40x20 feet and is
in the enjoyment of the said property with the
knowledge of the plaintiff and such possession and
enjoyment of the property by this defendant is
notorious, peaceably and without any obstruction by
anybody including the plaintiff who claims to be
owner. The plaintiff at no point of time obstructed
the defendant. Davani and water tank were
constructed about ten years back. The plaintiff did
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not raise any objection in enjoying the property by
this defendant which is in his possession."
(ii). The learned counsel therefore, contends that
even as per the understanding of the defendant, the only
two structures which existed on the property when the
written statement was filed were the davani and water
tank and this was precisely what was mentioned in the
sketch attached to the plaint. He submits that the
defendant has now put up a construction of a larger area
over the suit property, which was reported by the
Commissioner and therefore, it was necessary for the
plaintiff to seek for amendment of the plaint. He submits
that without the amendment the suit reliefs cannot be
effectively considered.
7. In reply, the learned counsel for the defendant
submitted that allowing the application for amendment will
change the nature of the suit as well as the cause of action
and the suit will roll back to the stage of evidence. In
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support of his contentions, he relied upon the following
judgments:
1) M/s. Revajeetu Builders and Developers
v. M/s. Narayanaswamy and sons and
others [2009 AIR SCW 6644];
2) Mashyak Grihnirman Sahakari Maryadit
vs. Usman Habib Dhuka [2013 AIR SCW
3430];
3) B.S. Prakash vs. T. Guaneshwar Rao
[2016 (4) KCCR 2955]
4) Smt. Jayamma vs. The Bruhath
Bengaluru Mahanagara Palike,
Bengaluru and others [2022 (1)
Kar.L.J.435]
5) Guru Reddy @ S.N. Raju vs. Gayathri
[2022 (2) AKR 301];
6) Basavaraj vs. Indira [2024 (2) AKR 284]
8. I have considered the submissions of the
learned counsel for the defendant and the learned counsel
for the plaintiff.
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9. The prescription in Order VI Rule 17 of CPC not
to entertain the applications for amendment after the
issues are framed, is with a view to ensure that suits filed
are not prolonged by filing applications after the issues are
framed. However, there is no embargo against
entertaining an application for amendment, if it is found
that the amendment is necessary for the purpose of
effectively and conclusively determining the dispute
between the parties. If the party seeking amendment is
able to establish that despite exercise of due diligence, he
could not seek for the amendment at the earliest point in
time, the Court shall allow such an application
notwithstanding the prohibition in Order VI Rule 17 of CPC
and the Court shall allow such an application without
imposing any condition. If it is found that the amendment
is necessary and the plaintiff has not been diligent, the
Court may compensate the other party for the time lost in
litigation.
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10. In the case on hand, the plaintiff sought for
declaration of title in respect of a larger area and
mandatory injunction to demolish a davani and water
tank, which were identified in a hand sketch attached to
the plaint. The defendant contested the suit and claimed
that he was in possession of an area measuring 40 ft. x 20
ft. and that the davani and the water tank were
constructed 10 years prior to the filing of the suit. The
defendant did not claim in the written statement that he
had constructed a building measuring 2113 sq. ft.
Therefore, from the date the suit was filed till the date the
defendant filed the written statement, there was no
construction over the suit property measuring 2113 sq. ft.
It can therefore be safely held that the construction so put
up as reported by the Commissioner measuring 2113 sq.
ft. was put up during the pendency of the suit. The
defendant has not denied the fact that he has put up
construction of 2113 sq. ft. over the suit property. If that
be so, the plaintiff cannot pursue the suit without getting
the construction removed by making appropriate
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amendment in the plaint. No doubt, the construction
measuring 2113 sq. ft. could not have happened without
the notice and knowledge of the plaintiff. The plaintiff
appears to have slept over and has allowed the defendant
to put up construction during the pendency of the suit.
Since the Trial Court felt that the amendment was
necessary and since the Trial Court felt that the plaintiff
did not take immediate steps to amend the plaint, it
compensated the defendant by awarding cost of
Rs.6,000/- for the time lost in litigation.
11. In view of the above, there is no error
committed by the Trial Court in allowing the application
filed by the plaintiff for amendment of the plaint.
12. Hence, this writ petition lacks merit and is
dismissed.
13. It is needless to mention that the amendment
permitted by the Trial Court shall be with effect from the
date of the application and shall not revert to the date of
the suit. The defendant is at liberty to file an additional
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written statement and the Trial Court may frame
additional issues and dispose off the suit as early as
possible, at any rate, as provided under the Karnataka
(Case Flow Management in Subordinate Courts) Rules,
2005.
Sd/-
(R.NATARAJ)
JUDGE
PMR
