Sri. S. Gururaja Bhat vs Sri. K.S. Ganapathi
2025 Latest Caselaw 6187 Kant

Karnataka High Court

Sri. S. Gururaja Bhat vs Sri. K.S. Ganapathi on 13 June, 2025

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                                                              NC: 2025:KHC:20347
                                                           W.P. No.52333/2019


                    HC-KAR



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                              DATED THIS THE 13TH DAY OF JUNE, 2025
                                             BEFORE
                          THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                             WRIT PETITION NO.52333/2019 (GM-CPC)


                   BETWEEN:

                   1.   SRI. S. GURURAJA BHAT
                        AGED ABOUT 55 YEARS
                        S/O LATE S.V. MADHAVA BHAT.

                   2.   SMT. NETRAVATHI G. RAJ
                        AGED ABOUT 46 YEARS
Digitally signed        W/O SRI. S. GURURAJA BHAT.
by RUPA V
Location: High          PETITIONERS NO.1 AND 2 ARE
Court of                R/AT D.NO.1114/2, NEW NO.CH 27/2
karnataka               GEETHA ROAD, CHAMARAJANAGARAM
                        MYSURU-570004.

                                                                   ...PETITIONERS
                   (BY SRI. Y.V. PRAKASH, ADV., FOR
                       SRI. Y.K. NARAYANA SHARMA, ADV.,)

                   AND:

                   SRI. K.S. GANAPATHI
                   AGED ABOUT 56 YEARS
                   S/O SRI. SREENIVASA BHAT
                   R/AT 1114/1 (OUT HOUSE)
                   GEETHA ROAD, CHAMARAJAPURAM
                   MYSURU-570004.
                                                                   ...RESPONDENT
                   (BY SRI. K.N. MAHABALESHWARA RAO, ADV.,)


                        THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
                   CONSTITUTION OF INDIA, PRAYING TO PASS NECESSARY ORDERS
                   AND ISSUE APPROPRIATE WRIT OF CERTIORARI OR OTHER
                   APPROPRIATE WRIT OR ORDER AND STAY THE ORDER
                   DTD.7.11.2019 PASSED ON IA NO.2 IN R.A.NO.270/2016 BY THE
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                                               NC: 2025:KHC:20347
                                             W.P. No.52333/2019


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COURT OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU AS PER
ANNEXURE-H AND REJECT THE SAID I.A.NO.2 FILED BY THE
RESPONDENT BY ALLOWING THIS W.P. WITH COSTS THROUGHOUT
OR PASS ANY OTHER SUITABLE ORDERS UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

                          ORAL ORDER

This petition is filed seeking following reliefs:

"Wherefore, it is respectfully prayed that this Hon'ble Court be pleased to pass necessary orders and issue appropriate Writ of Certiorari or other appropriate Writ or order and stay the order dated 07.11.2019 passed on I.A.No.2 in R.A.No.270/2016 by the Court of the VII Additional District Judge, Mysure as per Annexure-"H" and reject the said I.A.No.2 filed by the respondent by allowing this writ petition with costs throughout or pass any other suitable orders under the facts and circumstances of the case in the interest of justice."

2. Sri.Y.V.Prakash, learned counsel appearing for

the petitioners submits that the respondent herein has

filed a suit against the petitioners seeking relief of

mandatory injunction to put down or demolish the building

constructed in 'A' schedule property by way of mandatory

injunction and to close two windows which have been put

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up in the Western side of the schedule 'B' property. The

said suit came to be dismissed and the respondent filed an

appeal and in the said appeal he filed an IA seeking

amendment of the plaint. The said application came to be

allowed by the Appellate Court under the impugned order.

It is further submitted that the nature of the amendment

sought by the respondent is nothing but an attempt to

overcome the admissions in the suit. The nature of

amendment has nothing to do with the adjudication of the

lis between the parties as the prayer is for mandatory

injunction to demolish the wall put up by the petitioners

and to remove two windows. In the cross-examination

respondent-PW.1 has clearly admitted that suit 'A' and 'B'

properties are exclusive properties of the petitioners and

he has not put up any construction. Hence, allowing such

application would cause great prejudice and it is an

attempt to get the matter remanded to the trial Court and

to overcome such admissions. It is also submitted that

there is no reason whatsoever assigned in the application

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with regard to the delay in filing the application. There is

also no explanation whatsoever with regard to the aspect

of due diligence in filing the application, the Appellate

Court without considering any of the said aspects has

proceeded to allow the application by recording the reason

that the pleading will not make out a new case and

allowing it will not amount to granting a decree in favour

of the petitioner. He also adds that the trial Court has

observed that the respondent has assigned the reasons

that inspite of the complaint, the MCC has not taken any

action against the petitioners and therefore, could not

plead about the same in the original plaint. The said

observation of the trial Court is factually incorrect as no

such assertion is made in the application for amendment.

Hence, he seeks to allow the petition by setting aside the

impugned order.

3. Per contra, Sri.K.N.Mahabaleshwara Rao,

learned counsel appearing for the respondent supports the

impugned order of the trial Court and submits that mere

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admissions in the suit cannot be a ground to reject an

amendment when the party is seeking the said

amendment for bonafide reasons. It is submitted that the

amendment is nothing but an explanation or clarification

for the existing pleading and there would not be any

change in the nature of the relief sought in the plaint. He

further adds that the amendment is required to be

considered liberally when an application is filed with a

bonafide intention. Hence, he seeks to dismiss the

petition.

4. I have heard the arguments of the learned

counsel for the petitioners, learned counsel for the

respondent and meticulously perused the material

available on record.

5. The pleading and material available on record

indicates that the respondent herein has filed

O.S.No.127/2005 against the petitioners seeking relief of

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mandatory injunction and permanent injunction. The

prayer in the suit reads as under:

"1) By directing the defendants to put down or demolish the building constructed in the 'A' Suit Schedule property by way of Mandatory injunction and to close the two windows which has been put up in the western side of the 'B' Suit Scheduled property.

2) By Granting Permanent Injunction against the defendants restraining the defendants, agents, successors or any other persons claiming under them from blocking the drainage which is passed through the common passage in the 'A' Schedule Property and also from altering the drainage passed in the 'A' Schedule Property.

3) Court costs and such other reliefs deems fit to be granted in the circumstances of the case."

6. After a full fledged trial, the trial Court

dismissed the suit vide judgment dated 05.10.2015. Being

aggrieved, the respondent filed RA.No.270/2016 which is

pending on the file of VII Additional District Judge, Mysore.

In the said appeal, the respondent filed an application in

IA.No.2 under Order 6 Rule 17 read with Section 151 of

CPC seeking amendment of the plaint by incorporating

certain factual aspects in the plaint. The said application

was opposed by the petitioners contending that filing an

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application would amount to an attempt to overcome the

admissions in the suit and that such application filed with

an ulterior motive cannot be allowed. The Appellate Court

considering the submissions, averments in the application

and objections proceed to allow the application. The

nature of relief sought by the respondent in the suit is for

mandatory injunction to demolish the common wall alleged

to have been constructed by the petitioners and

mandatory injunction to remove two windows in the suit

'B' property and further from blocking the drainage which

passes through the common passage in 'A' schedule

property. The trial Court in its judgment in

O.S.No.127/2005 from paragraph No.16 onwards has

extracted the admissions given by the respondent with

regard to the dispute between the parties. The said

admissions referred in the judgment clearly indicate that

the respondent has admitted that the suit schedule

properties 'A' and 'B' are exclusive properties of the

petitioners and the respondent has no right over it.

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7. The aforesaid admissions clearly indicate that

the respondent has admitted clearly that common wall

exists in the property of the petitioners. He also admitted

that he has no right over the property. He has also

admitted that two windows exist on the petitioners'

property. When there is clear admission on the part of the

respondent in the trial, the nature of amendment sought

now by the respondent definitely amounts to an attempt

to overcome the said admissions and further an attempt to

seek remand, based on such an amendment. The learned

counsel for the petitioners is right in his submission that

absolutely no reasons whatsoever have been assigned in

the affidavit accompanying the application for amendment.

The application is filed in the Appellate Court seeking

amendment of the plaint which is more than four years

old, not even a single reason is stated with regard to the

delay and due diligence on the part of the respondent in

the application belatedly. The application as well as the

affidavit seeking amendment is bald and without any

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factual assertion with regard to the limitation and due

diligence. There is no explanation as to why such a plea is

not taken by the respondent when the plaint is filed. In the

absence of any such material on record, allowing the

application by the Appellate Court is contrary to settled

principles of law and contrary to Order 6 Rule 17. It is not

in dispute that the application for amendment is required

to be allowed liberally, but if the application is filed to

overcome the admissions already made, such applications

are required to be rejected.

8. The aforesaid observations are made by this

Court only with regard to the consideration of the

application filed by the respondent. It is made clear that

this Court has not expressed any opinion with regard to

merits of the case. The Appellate Court shall consider the

appeal on its merits without being influenced by the

observation made supra. For the aforementioned reasons,

I proceed to pass the following:

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 HC-KAR




                            ORDER


      i)     Writ petition is allowed.

      ii)    Impugned order dated 07.11.2019 passed

on IA.No.2 in R.A.No.270/2016 passed by the VII Additional District Judge, Mysore is set aside. Consequently IA.No.2 filed in R.A.No.270/2016 by the respondent stands rejected.

Sd/-

(VIJAYKUMAR A. PATIL) JUDGE

ABK