Allowed

Smt Susheela v. Smt Ratna

Karnataka HC11 Sept 2020WP/25538/2015

Case brief

AI extract

What is this about?

High Court allowed Writ Petition permitting amendment of plaint in a permanent injunction suit. Order quashed trial court's rejection, directed amendment on payment of costs, and reserved liberty to defendant to file written statement including limitation defense before trial court disposed suit by June 2021.

What did the court decide?

Writ Petition allowed; impugned order allowed on payment of cost Rs. 3,000; parties directed for amendment and filing of additional written statement.

Smt Susheela Vs Smt Ratna — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF SEPTEMBER 2020

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BEFORE

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THE HON'BLE Mr.JUSTICE V.SRISHANANDA

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WRIT PETITION NO.25538/2015 (GM-CPC)

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BETWEEN:

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SMT.SUSHEELA AGED ABOUT 61 YEARS, W/O.SRI.SHEKARA, R/AT BADAGA KAJEKARU VILLAGE, BANTWAL TALUK, D.K. DISTRICT-574 219 ... PETITIONER

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(By Sri.PRASANNA.V.R, ADVOCATE)

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AND:

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SMT.RATNA, AGED ABOUT 52 YEARS, W/O.LAKSHMANA POOJARY, R/AT AMBUDELU HOUSE, BADAGA KAJEKARU VILLAGE & POST, BANTWAL TALUK, D.K.DISTRICT-574 219. …RESPONDENT

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(By Sri.SARAT CHANDRA BIJAI, ADVOCATE)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dt.18.3.2015 on I.A.No.5 in O.S.No.230/2009 passed by the learned Principal Civil Judge & JMFC, Bantwal, D.K.District vide Annex-A.

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This Writ Petition coming on for preliminary hearing in ‘B’ group, this day, the Court made the following:-

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ORDER

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This writ petition is filed questioning the validity of the order passed by the learned Principal Civil Judge and JMFC, Bantwal, D.K in O.S.No.230/2009 dated 18^th March 2015 wherein I.A.No.V filed by the plaintiff under Order VI Rule 17 read with Section 151 of CPC came to be rejected.

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Parties are referred to as ‘plaintiff’ and ‘defendant’

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as per their original ranking before the trial Court.

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Brief facts which are necessary for the disposal of the writ petition are as under:

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Plaintiff filed a suit for permanent injunction in respect of immovable property which is a house site situated in Badaga Kajekaru village, Bantwal Taluk (hereinafter referred to as ‘the suit schedule property’). The application came to be filed vide I.A.No.V seeking the amendment of the plaint with a prayer to issue mandatory injunction directing the

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defendant to demolish the illegal structure put up by her in the suit schedule property. The application was contested by filing detailed written objection stating that the application would change the nature of the suit and the application is ill-motivated. Learned trial Judge after hearing the parties rejected I.A.No.V.

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Before this Court, learned counsel for the petitioner submits that the application seeking the relief of amendment of the plaint must be considered liberally especially when the trial has not commenced in the suit. It is also urged that if the amendment is not allowed, very suit itself becomes infructuous and as such, the writ petition deserves to be allowed.

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Per contra, learned counsel for respondent Sri.Sarat Chandra Bijai submits that no doubt the Court has got ample discretionary power to allow the amendment. But while doing so, the Court is duty bound to protect the rights of the adversary. He also submits that in the event of allowing the proposed amendment, suitable cost may be

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imposed and liberty be reserved to the defendant to file additional written statement urging all available grounds including the question of limitation.

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After hearing the parties and on perusal of the records, it is noticed that trial Court in the impugned order has not made it clear whether the trial has commenced or not. In this regard, it is necessary for this Court to cull out Paragraphs 15 and 17 of the impugned order which reads as under:

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“15. Hence, it is very clear that in this case already trial has commenced and in fact the case is posted for further evidence of plaintiff. Hence application for amendment cannot be considered after commencement of trial in view of amendment to C.P.C unless it is shown that in spite of due diligence said matter could not be raised before the commencement of trial.

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xxxx

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In the affidavit annexed to the application, there is no reason mentioned as to why she could not move the application for amendment before commencement of trial. In this case, issues were framed on 27.06.2014.

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When the case is posted for evidence of plaintiff as last chance, the plaintiff has moved this application. Hence, no grounds are shown by the plaintiff to hold that plaintiff could not raise the above said contention before commencement of trail.”

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On perusal of the above paragraphs, it is not sure whether the trial has commenced or not. Be it what it may. In view of pendency of this writ petition, the progress of the suit before the trial Court is scuttled.

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The objection of the defendant that proposed amendment is unnecessary and would change the nature of the suit can be considered in the main suit itself even after allowing the proposed amendment. Since the suit is of the year 2009, allowing the proposed amendment and directing the parties to co-operate for early disposal of the suit, in the considered opinion of this Court would meet ends of justice.

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It is settled proposition of law that while considering the amendment, Courts must adopt a liberal view and should be too pedantic in its approach.

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However, after amendment to the Code of Civil Procedure in the year 2002, while allowing the amendment after the commencement of the trial, Courts must be extra cautious. But in the case on hand, in view of the contrary opinion expressed by the trial Court in Paragraphs 15 and 17 as referred to supra, this Court is unable to specifically say whether trial has commenced or not. Learned counsels for the parties were also not sure as to commencement of the trial in the suit. In view of the above factual position, this Court is of the opinion that allowing the amendment on terms reserving liberty to defendant to file additional written statement including the question of limitation would pave the way for early disposal of the suit.

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Accordingly, the writ petition is allowed. The impugned order dated 18^th March 2015 passed by the learned Principal Civil Judge and JMFC, Bantwal, D.K on I.A.No.V in O.S.No.230/2009 is allowed on payment of cost of Rs.3,000/-. It is made clear that defendant is at liberty to file additional written statement by taking all contentions

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including the question of limitation. Payment of cost is condition precedent for allowing the amendment.

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The parties are directed to appear before the trial Court seeking the matter to be taken up on 15^th October 2020, on which day, the plaintiff shall pay the cost and carry out amendment and file the amended plaint. Thereafter, defendant is given two weeks time to file the additional written statement, wherein liberty is also given to urge the ground of limitation as well. Having regard to the age of the suit, trial Court shall dispose of the suit on or before 30^th June 2021.

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Sd/- JUDGE

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bnv*

Smt Susheela v. Smt Ratna

Case brief

What is this about?

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Smt Susheela v. Smt Ratna

Case brief

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