This High Court rejected a trial court's order dismissing an application for amendment to the plaint seeking an alternative prayer for delivery of possession in a suit for declaration and injunction.
Impugned order dismissing the application for amendment under O. 6 R. 17, CPC is set aside; petitioners are permitted to amend the prayer.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 3rd day of March, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Writ Petition 1488 / 2012 (GM CPC)
Between
Both are r/a Hungenahalli Village Kasaba Hobli, Malur Taluk
Petitioners
(By Sri B N Muralidhar, Adv.)
And
All are r/a Hungenahalli Village Kasaba Hobli, Malur Taluk Respondents
(By Sri G Papi Reddy, Adv. For R4)
Writ Petition is filed under Art.226/227 of the Constitution praying to quash the order dated 2.1.2012 in OS 40/2011 on IA 10 by the Civil Judge (Sr.Dvn.), Malur.
Petition coming on for preliminary hearing this day, the Court made the following:
ORDER
The IA filed for amendment to introduce, in the alternative, the
prayer to grant delivery of possession apart from the prayer originally stated
in the plaint seeking for declaration and injunction in the suit filed by the
plaintiffs/petitioners herein came to be rejected. Hence, this petition.
Heard the counsel representing the parties.
Petitioners herein have sought for a declaration. Even if possession
is admitted but as a matter of right when the petitioners are entitled for possession, that has been sought for by way of amendment to the prayer
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along with the other prayer for declaration and injunction.
Counsel for the respondents submitted, suit is filed way back in the year 2003. At this belated stage after 10-11 years when the matter is set up for arguments, such a prayer is sought to be introduced by way of amendment which would cause prejudice to the respondents and plaintiff himself has admitted possession of the respondent as such, rightly the trial court rejected the application for amendment.
It is also submitted there is oral partition between the parties; it is not evidenced by share or mere understanding of the parties. However, if any prayer as such is introduced by way of alternate relief, to include delivery of possession, in the event plaintiffs succeed, even if respondents are in possession that would not take away the plaintiffs' right or change the nature of the suit itself.
In that view of the matter, petition is allowed. Impugned order of dismissal of IA filed for amendment under O 6 R 17, CPC is set aside.
Petitioners are permitted to amend the prayer. The court below shall dispose of the matter within two months and parties shall co-operate for the
same.
Sd/-
an
3 issues framed by the court
Whether a petition under Articles 226/227 can be allowed if a prayer for delivery of possession is sought to be introduced by amendment after 10-11 years causing prejudice.
Whether rejected amendment to introduce an alternative prayer for delivery of possession in a suit for declaration and injunction can be allowed.
Whether the introduction of a prayer for delivery of possession as an alternative relief changes the nature of the pending suit.
2 provisions across 2 enactments
Sri H M Srinath and others
Sri Muninagappa and others
HULUVADI G RAMESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
