Allowed

Mahadevappa S/O Sankappa Benni v. Smt.Gouradevi W/O. Basavaraj Manvi.

Karnataka HC2 Sept 2021WP/111155/2017

Case brief

AI extract

What is this about?

Writ petition challenging the rejection of an application to amend a plaint by adding a prayer for possession. The High Court set aside the trial court order allowing the amendment, finding no prejudice to respondents and avoiding miscarriage of justice, while reserving contention on limitation.

What did the court decide?

Impugned order dated 12.10.2017 on I.A.No.10 in O.S.No.275/2014 is set aside; I.A.No.10 allowed subject to cost of Rs. 5,000/-; amendment observed not to relate back to suit institution date.

Mahadevappa S/O Sankappa Benni Vs Smt.Gouradevi W/O… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE S.R. KRISHNA KUMAR

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WRIT PETITION NO.111155/2017 (GM-CPC)

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BETWEEN

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MAHADEVAPPA S/O SANKAPPA BENNI, AGED ABOUT 65 YEARS, OCC: AGRICULTURE, R/O: VARUR, TQ: HUBBALLI, DIST: DHARWAD.

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...PETITIONER

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(BY SRI MAHESH WODEYAR, ADVOCATE)

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AND

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SMT.GOURADEVI W/O BASAVARAJ MANVI. AGE: 78 YEARS, OCC: HOUSEHOLD WORK,

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PRAKASH S/O MALLIKARJUN MANVI AGE: 61 YEARS, OCC: BUSINESS,

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SRI. MALLIKARJUN S/O DANAPPA MANVI AGE: 55 YEARS, OCC: BUSINESS,

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SRI. DANAPPA S/O BASAVARAJ MANVI AGE: 54 YEARS, OCC: BUSINESS,

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SRI RAVI S/O MALLIKARJUN MANVI AGE: 52 YEARS, OCC: BUSINESS,

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SRI. VEERUPAXAPPA S/O DANAPPA MANVI AGE: 51 YEARS, OCC: BUSINESS,

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SRI. AMAR S/O MALLIKARJUN MANVI AGE: 49 YEARS, OCC: BUSINESS,

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SMT.VIJAYA W/O MALLIKARJUN MANVI AGE: 47 YEARS, OCC: BUSINESS,

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SRI.SHANTAPPA S.S. AGE: 46 YEARS, OCC: BUSINESS,

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ALL ARE R/O: NEELIGIN ROAD, HUBBALLI.

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SRI. PRABHAKAR S/O SRIPADRAO JAKKALI AGE: 80 YEARS, OCC: BUSINESS, R/O: CHAMBARAGI CHAWAL, NEAR RAMESH BHAVAN, KESHWAPUR, HUBBALLI.

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SRI. SHANKARAPPA S/O CHANNABASAPPA SABARAD AGE 88 YEARS, OCC: BUSINESS, R/O: OLD HUBBALLI, HUBBALLI-24.

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KRISHNALAL S/O MASTRAM GAMBIR AGE: 72 YEARS, OCC: BUSINESS,

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SMT.PARAMJEET W/O KRISHNALAL GAMBIR AGE: 67 YEARS, OCC: HOUSEHOLD WORK,

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SANDEEP S/O KRISHNALAL GAMBIR AGE: 47 YEARS, OCC: BUSINESS,

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PAVAN S/O KRISHNALAL GAMBIR AGE: 45 YEARS, OCC: BUSINESS,

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KAPILA S/O KRISHNALAL GANBIR AGE: 40 YEARS, OCC: BUSINESS,

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SMT.POONAM W/O PRAVEEN AGE: 40 YEARS, OCC: BUSINESS,

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ALL R/O: DESHAPANDE NAGAR, HUBBALLI.

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SMT.BASAVANNEVVA D/O PRABHAYYA KANTHAYYANAMATH, AGE: 59 YEARS, OCC: HOUSEHOLD,

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SHIVAYYA S/O PRABHAYYA KANTHAYYANAMATH, AGE: 56 YEARS, OCC: NOT KNOWN,

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SRI. SHEKHARAYYA S/O PRABHAYYA KANTHAYYANAMATH AGE: 52 YEARS, OCC: NOT KNOWN

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SRI. BASAVANTHAPPA S/O SANKAPPA BENNI AGE: 79 YEARS, OCC: AGRICULTURE,

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SRI. DEVENDRAPPA S/O SANKAPPA BENNI AGE: 73 YEARS, OCC: AGRICULTURE,

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SRI. SHANTAPPA S/O SANKAPPA BENNI AGE: 71 YEARS, OCC: AGRICULTURE,

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RAMAPPA S/O SANKAPPA BENNI AGE: 69 YEARS, OCC: AGRICULTURE,

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SRI. SOMARAYAPPA S/O SANKAPPA BENNI AGE: 67 YEARS, OCC: AGRICULTURE,

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SRI. ANANTH S/O SANKAPPA BENNI AGE: 61 YEARS, OCC: AGRICULTURE,

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ALL ARE R/O :VARUR VILLAGE, HUBBALLI. ... RESPONDENTS

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(BY SRI SURESH N.KINI AND SRI N.S.KINI, ADVOCATES FOR R12 TO R17; NOTICE TO R1 TO R11 AND R18 TO R26 DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED OF ORDER DATED 12.10.2017 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI ON I.A.NO.10 IN O.S.NO.275/2014 VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW I.A.NO.10.

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THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT, MADE THE FOLLOWING:

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ORDER

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This petition is directed against the impugned order dated 12.10.2017 on I.A.No.10 in O.S.No.275/2014 on the file of the III Addl.Senior Civil Judge, Hubballi (for short, ‘the trial Court’) whereby the said application filed by the petitioner/ plaintiff under Order VI Rule 17 C.P.C. for amendment of the plaint was rejected by the trial Court.

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Heard learned counsel for the petitioner and learned counsel for the respondent Nos.12 to 17. Perused the material on record.

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The material on record indicates that in the aforesaid suit filed by the petitioner/plaintiff for declaration and injunction in respect of the suit immovable property, the respondents were arrayed as defendants and they contested the suit. After commencement of trial, the petitioner moved the instant application-I.A.No.10 under Order VI Rule 17

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C.P.C. seeking to incorporate the alternative relief of possession by incorporating paragraph 9.b and paragraph 14 a.i in the plaint along with necessary pleadings in this regard. The said application having been opposed by the respondents/defendants, the trial Court proceeded to pass the impugned order rejecting I.A.No.10 on the ground that no due diligence shown by the petitioner in not seeking amendment prior to commencement of trial and that the matter was posted for final arguments. Aggrieved by the impugned order, petitioner is before this Court by way of present petition.

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A perusal of the impugned order will indicate that by way of the proposed amendment, the petitioner seeks to merely introduce the alternative prayer for recovery of possession and relevant pleadings in this regard and in the absence of any prejudice being caused to the respondents/defendants which cannot be adequately compensated by way of

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cost, particularly when the respondents/defendants would be entitled to file their additional written statement to the amended plaint, I am of the view that the impugned order passed by the trial Court rejecting I.A.No.10 is contrary to well settled principles of law governing amendment of pleadings and the same has resulted in miscarriage of justice warranting interference by this Court in the present petition.

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In the result, I pass the following:

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ORDER

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i. The petition is allowed.

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ii. Impugned order dated 12.10.2017 on I.A.No.10 in O.S.No.275/2014 is hereby set aside and consequently I.A.No.10 filed by the petitioner/plaintiff is allowed subject to cost of Rs.5,000/- payable to the Advocates’ Association Library Fund, High Court of Karnataka Dharwad Bench, Dharwad within four weeks.

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iii. It is made clear that the amendment sought for by the petitioner in I.A.No.10 shall not relate back to date of institution of the suit by the petitioner, but that the said amendment shall be reckoned from the date of filing the said application by him which was filed before the trial Court on 15.09.2017.

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iv. Liberty is reserved in favour of the respondents/defendants to file additional written statement to the amended plaint.

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v. All rival contentions between the parties including the contentions with regard to the limitation, maintainability etc., are kept open to be decided by the trial Court at the time of final disposal of the suit.

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Subject to the aforesaid directions and

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observations, writ petition stands disposed off.

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Sd/JUDGE

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CLK

Mahadevappa S/O Sankappa Benni v. Smt.Gouradevi W/O. Basavaraj Manvi.

Case brief

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Mahadevappa S/O Sankappa Benni v. Smt.Gouradevi W/O. Basavaraj Manvi.

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