Karnataka High Court
U Yoganand S/O Thippiahswamy Alias ... vs Smt Sujatha W/O U Sunkappa Since ... on 3 October, 2025
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NC: 2025:KHC-D:13623
WP No. 107358 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 3RD DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO. 107358 OF 2025 (GM-CPC)
BETWEEN:
U. YOGANAND S/O THIPPIAHSWAMY @ THIPPESWAMY
AGE. 48 YEARS, OCC. PROP. ANAGHA AYURVEDALAYA,
R/O. DOOR NO.33, 33/16A,
WARD NO.17, ANANTHAPUR ROAD,
BALLARI, TQ. AND DIST. BALLARI 583101.
...PETITIONER
(BY SRI. YADAWAD GIRISH ARUN, ADVOCATE)
AND:
SMT. SUJATHA W/O U SUNKAPPA
SINCE DECEASED BY HER LRS.
1. SUNKAPPA FATHER'S NAME NOT KNOWN
AGE. 69 YEARS, OCC. BUSINESS,
R/O. OPP. TARANATH AYURVEDIC COLLEGE,
ANANTHAPUR ROAD,
BALLARI, TQ. AND DIST. BALLARI 583101.
2. NAGARAJ S/O SUNKAPPA
AGE. 41 YEARS, OCC. BUSINESS,
VINAYAKA
BV R/O. OPP. TARANATH AYURVEDIC COLLEGE,
Digitally signed by
ANANTHAPUR ROAD, BALLARI,
VINAYAKA B V
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.10.06 10:23:09
+0530
TQ. AND DIST. BALLARI 583101.
VENKATESH S/O SUNKAPPA
SINCE DECEASED BY HIS LRS.
3. SMT. RAMA DEVI W/O LATE VENKATESH
AGE. 50 YEARS, OCC. NOT KNOWN,
R/O. WARD NO. 36, BEHIND FIRE STATION,
RAJESHWARI NAGAR, NEAR KOTTAL GUDI,
BALLARI, TQ. AND DIST. BALLARI 583101.
4. SHABARI S/O LATE VENKATESH
AGE. 25 YEARS, OCC. NOT KNOWN,
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NC: 2025:KHC-D:13623
WP No. 107358 of 2025
HC-KAR
R/O. WARD NO. 36, BEHIND FIRE STATION,
RAJESHWARI NAGAR, NEAR KOTTAL GUDI,
BALLARI, TQ. AND DIST. BALLARI 583101.
5. YERISWAMY S/O SUNKAPPA
AGE. 37 YEARS, OCC. BUSINESS,
R/O. OPP. TARANATH AYURVEDIC COLLEGE,
ANANTHAPUR ROAD, BALLARI,
TQ. AND DIST. BALLARI 583101.
6. SMT. NAGAMANI D/O SMT. SUJATHA AND SUNKAPPA
AGE. 45 YEARS, OCC. BUSINESS,
R/O. OPP. TARANATH AYURVEDIC COLLEGE,
ANANTHAPUR ROAD, BALLARI,
TQ. AND DIST. BALLARI 583101.
7. CHENNAMALLAPPA S/O THIMAPPA
AGE. MAJOR, OCC. NOT KNOWN,
R/O. DOOR NO.1, WARD NO.16, INDIRANAGAR,
BEHIND GOVERNMENT GUEST HOUSE,
SHRIRAMPURAM COLONY, BALLARI,
TQ. AND DIST. BALLARI 583101.
8. U. THIPPESWAMY
AGE. MAJOR, OCC. NOT KNOWN,
R/O. PATEL NAGAR, NEAR M.G. AUTOMOBILES,
ANANTHAPUR ROAD, BALLARI,
TQ. AND DIST. BALLARI 583101.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA 1950, PRAYING TO ISSUE A WRIT OF
CERTIORARI TO QUASH THE IMPUGNED ORDER AGGRIEVED BY THE
ORDER DATED 01.09.2025 PASSED BY THE PRL. CIVIL JUDGE AND
JMFC, BALLARI ON IA NO.20 IN OS NO.335/2002 VIDE ANNEXURE-G
AND ALLOW THE SAID APPLICATION FILED BY THE PETITIONER IN IA
NO.20, IN THE INTEREST OF JUSTICE AND EQUITY & ETC.
THIS WP COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
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NC: 2025:KHC-D:13623
WP No. 107358 of 2025
HC-KAR
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)
The petitioner has challenged an order dated 01.09.2025
passed in OS No.335/2002 by which an application filed by him
for amendment of the plaint to insert additional pleadings was
rejected.
2. The suit in OS No.335/2002 was filed for declaration
that the plaintiffs are the owners of the suit schedule property
and for mandatory injunction directing the defendant to remove
the encroachment on the western side in an area measuring
North-South 12 feet and East-West 40 feet. The suit was decreed
in part on 03.10.2007 enabling the plaintiff to receive the value
of the encroachment portion. The plaintiff No.2 who had
purchased the property challenged the Judgment in RA
No.122/2007 which was allowed on 25.03.2008 and the case
was remitted for reconsideration reserving liberty to the parties
to amend the pleadings. Later, the plaint was amended and the
daughter of the defended was impleaded as defendant No.2 as
she has encroached the suit property on the northern side. The
order impleading the defendant No.2 was challenged by the
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defendant No.1 in WP No.31686/2008 which was dismissed in
terms of the order dated 18.12.2008. Later, the defendant No.2
was also challenged the said order in WP No.60323/2009. This
Court noticed that the application filed by the plaintiffs was not
only impleading but also amendment of the pleading which was
not maintainable. The learned counsel for the plaintiffs sought
permission to file separate applications therefore, the Writ
Petition was allowed and the order dated 27.11.2008 was
quashed. The application filed for impleading was dismissed as
withdrawn but, liberty was reserved for filing separate
applications for impleading and amendment of the pleading.
3. The trial Court dismissed the suit for non-prosecution
in terms of an order dated 16.06.2014. Later Misc. No.14/2014
was filed for restoration of the suit which was allowed on
31.07.2024.
4. During the pendency of the suit, the plaintiff No.3
noticed that the defendant No.2 had encroached the suit
property on the northern side and had put up illegal construction.
He therefore, filed IA No.20 requesting the trial Court to permit
him to amend the plaint by incorporating additional pleadings in
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the plaint to justify the encroachment by the defendant No.2.
The application was contested by defendant No.2.
5. The trial Court after considering the application and
the objections there to, rejected it in terms of the order dated
01.09.2025. Being aggrieved by the said order the plaintiff No.3
is before this Court.
6. Learned counsel for the plaintiff No.3 submits that
the trial Court committed an error in not noticing that defendant
No.2 was already impleaded as the legal heir of the defendant
No.1. He contends that the plaintiffs had sought for declaration
of title in respect of the entire property and therefore, were
bound to implead all persons who were in unauthorized
occupation of the suit property. He contends that the
encroachment by the defendant No.2 over the northern side was
during the pendency of the suit and hence, an amendment
application to incorporate additional pleadings ought to have
been permitted. He contends that allowing these additional
pleadings to be brought on record did not change the nature of
the suit and defendant No.2 did not suffer any hardship or
difficulty and she would be entitle to file her additional
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statement. He contends that the trial Court rejected the
application on the ground that the application was belated. He
submits that the trial Court could have given effect to the
amendment from the date of the application which would have
met the ends of justice.
7. I have considered the submissions of the learned
counsel for plaintiff No.3.
8. The suit was filed in the year 2002 and the suit was
earlier decreed in part directing the defendant to pay the
valuation of the encroached portion. This was challenged in RA
No.122/2007 by the plaintiff No.2 which was allowed vide
Judgment and decree dated 25.03.2008 and the suit was
restored on the file of the trial Court. In the meanwhile, the
plaintiffs filed an application to implead the daughter of the
defendant and also sought for various reliefs. The said
application was allowed which was challenged by the defendant
Smt.Sujata in WP No.31686/2008 which was dismissed in terms
of an order 18.12.2008. Later, Smt.Nagamani also challenged
the said order in WP No.60823/2009. This Court noticed that the
plaintiffs could not have sought for two relifs namely, to implead
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Smt.Nagamani and also to seek for reliefs against the said
Smt.Nagamani in one application.
9. On the submissions of the learned counsel for the
plaintiffs that a fresh application would be filed, WP
No.60323/2009 was allowed in terms of the order dated
19.09.2013. The defendant No.1 died and the legal heirs were
brought on record.
10. Later, the suit was dismissed for non-prosecution on
16.06.2014 and Civil Miscellaneous No.17/2014 was filed which
was allowed on 31.07.2024. Following these order, a fresh
application is now filed to amend the plaint to bring on record
certain facts against the defendant No.2 in the suit, which was
rejected in terms of the impugned order.
11. The trial Court while passing the impugned order
observed that the plaintiffs had earlier claimed that the
encroached portion was on the western side. However, plaintiff
No.3 changed his version by seeking amendment to incorporate
additional pleadings to contend defendant No.2 had encroached
on the northern portion. However, plaintiff No.3 did not amend
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the schedule mentioned in the plaint. It therefore held that
amendment if brought on record would contradict the averments
made in the plaint which would result in undoing what was done
from the year 2002. It also held that the plaintiff No.3 was trying
to make out a new case by amending the plaint. Therefore, it
held that plaintiff cannot allowed to change the cause of action.
12. As stated above, this case had a checkered history in
as much as there are more than four to five proceedings before
various Courts. The plaintiff No.1 who initially filed a suit against
the defendant No.1 alleged that defendant No.1 had encroached
on the western portion. During the pendency of the suit, plaintiff
No.2 purchased the suit property, later he gifted it to plaintiff
No.3 who came on record. The plaintiff No.3 alleged that the
defendant No.2 had encroached on the northern portion. It is
based on this that the plaintiff No.3 filed an application to
incorporate additional pleadings in the plaint. If the defendant
No.2 had encroached on the northern portion of the suit
property, plaintiffs ought to have taken steps. The assertions
made in the plaint and the assertions made in the amendment of
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the plaint contradicted each other and therefore, the trial Court
justified in not entertaining the application.
13. Accordingly, the Writ Petition lacks merit and it
dismissed. However, liberty is reserved to the plaintiffs to
challenge the rejection of the application in an appeal that may
be filed against any Judgment that may be passed in the suit.
Sd/-
(R.NATARAJ)
JUDGE
PJ, ct:vp
