Allowed

Bangalore Technical Foundation Trust v. Sri. Vijayakumar B M

Karnataka HC8 Feb 2022WP/13001/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash a trial court order rejecting an amendment application in a permanent injunction suit. The Court held the trial court erred in treating the application technically instead of liberally, especially to avoid multiplicity of proceedings.

What did the court decide?

The writ petition was allowed; the impugned order dated 19.11.2015 in I.A.No.7 was quashed, and I.A.No.7 was allowed.

Bangalore Technical Foundation Trust Vs Sri. Vijayakumar B M — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF FEBRUARY 2022

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BEFORE

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THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

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WRIT PETITION NO.13001 OF 2016 (GM-CPC)

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BETWEEN:

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BANGALORE TECHNICAL FOUNDATION TRUST (REGISTERED), NO.414-106/7 NH-7, BANGALORE INTERNATIONAL AIR PORT ROAD (BELLRY ROAD), NEXT TO IOC PETROL BUNK KODIGEHALLI GATE, BANGALORE-560092 REP. BY MANAGING TRUSTEE SRI T P RAVISHANKAR.

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...PETITIONER

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(BY SRI. A MADHUSUDHANA RAO, ADVOCATE)

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AND:

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1 . SRI. VIJAYAKUMAR B M S/O SRI. B K MUNIYAPPA AGED ABOUT 63 YEARS R/A NO.292, 7^TH CROSS JAYANAGAR, I^ST BLOCK BANGALORE-560 011.

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2 . SRI. PRITHVIRAJ B M S/O SRI B K MUNIYAPPA AGED ABOUT 60 YEARS, R/A NO.292, 7^TH CROSS,

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JAYANAGAR, 1^ST BLOCK BANGALORE-560 011.

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3 . SMT. CHANDRAPRABHA B M D/O SRI B K MUNIYAPPA AGED ABOUT 52 YEARS, R/A NO.292, 7^TH CROSS, JAYANAGAR 1^ST BLOCK BANGALORE-560011.

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4 . SRI YOGESH GOWDA S/O NAGARAJAPA AGED ABOUT 27 YEARS, R/A NO.292 7^TH CROSS, JAYANAGAR, 1^ST BLOCK BANGALORE-560011.

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…RESPONDENTS

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(BY SRI./SMT : PRASHANTH M V, ADVOCATE FOR R1 TO R4 AND SRI. SUNIL P.P., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 19.11.2015 ON I.A.NO.7 IN OS.NO.5438/2013 VIDE ANENX-E PASSED BY THE LEARNED XVII ADDITIONAL CITY CIVIL JUDGE BANGALORE, ALLOW THIS WRIT PETITION WITH COSTS.

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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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O R D E R

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The petitioner aggrieved by the order on I.A.No.7 dated 19.11.2015 passed in

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O.S.No.5438/2013 has filed the present writ petition.

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Brief facts leading rise to filing of this petition

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are as under:

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The petitioner filed a suit in O.S.No.5438/2013 for the relief of permanent injunction against the respondents from interfering with the petitioner's peaceful possession and enjoyment of the schedule property. The respondents filed the written statement denying averments made in the plaint. The petitioner filed I.A.No.7 seeking for the amendment of the plaint. The said application was opposed by the respondents. The Trial Court after hearing the parties rejected the application. Hence, this writ petition.

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Heard learned counsel for petitioner. None appeared for the respondents on the last few occasions. Hence, the arguments of the learned counsel for the respondents is taken as nil.

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Learned counsel for the petitioner submits that the petitioner filed a suit for permanent injunction on 26.7.2013. The respondents filed written statement on 7.1.2014. He submits that the petitioner has filed an application seeking amendment of the plaint before the framing of the issues by the Trial Court and that the said application is filed only in order to avoid multiplicity of proceedings. The Trial Court without properly appreciating the contention raised by the petitioner has rejected the said application. He further submits that the application filed by the petitioner ought to have been considered liberally by the Trial Court and that the trial Court has committed an error in rejecting the application filed by the petitioner for amendment of the plaint. Hence, on these grounds, he prays to allow the writ petition.

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Perused the records and considered the submissions made by learned counsel for the petitioner.

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The petitioner has filed the suit for permanent injunction on 26.7.2013. The respondents filed written statement on 7.1.2014. The Trial Court has not yet framed the issues. Prior to framing of the issues, the petitioner filed an application seeking for amendment of the plaint. The Trial Court has rejected the application solely on the ground that the suit is one for permanent injunction and the proposed amendment sought for by the petitioner is for the relief of declaration. It has further observed that if the proposed amendment is allowed, it changes the very nature of the case.

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The petitioner has filed the suit for permanent injunction and by way of proposed

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amendment, the petitioner is seeking to amend the plaint for declaration, cancellation of partition deed and cancellation of sale deed. The said cancellation of partition deed and lease deed were not within the knowledge of the petitioner. The petitioner came to know about the cancellation of the registered sale deed only when the respondents filed the written statement and immediately after coming to know about the cancellation of the registered partition deed and lease deed, the petitioner filed the application for amendment of the plaint before the commencement of the trial.

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The application has to be considered liberally in view of the law laid down by the Hon'ble Apex Court in the case of ABDUL REHMAN & ANR. VS. MOHD. RULDU

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& ORS. [2012 AIR SCW 5419] wherein it has been

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held that the court should be liberal in accepting an

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application for amendment before commencement of the trial.

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In the present case, the petitioner has filed the application for amendment of the plaint before the commencement of the trial. The Trial Court ought to have considered the application liberally. But on the contrary, the Trial Court has rejected the application on technical ground. The Trial Court has committed an error in rejecting the application. Further, if the said application is allowed, no injustice would be caused to the respondents. Further in order to avoid multiplicity of proceedings, the Trial Court ought to have allowed the application for amendment of the plaint, on the contrary rejected the application. In view of the above discussion, the following order is passed :

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ORDER

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i) The writ petition is allowed;

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ii) The impugned order passed by the petitioner on I.A.No.7 dated 19.11.2015 passed in O.S.No.5438/2013 is hereby quashed; I.A.No.7 is accordingly allowed.

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SD/JUDGE

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Bangalore Technical Foundation Trust v. Sri. Vijayakumar B M

Case brief

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Bangalore Technical Foundation Trust v. Sri. Vijayakumar B M

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