Allowed

Smt Lakshmamma v. Sri Shivaramaiah

Karnataka HC25 Mar 2022WP/37151/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka, in a writ petition under Article 227, quashed an impugned order rejecting a plaint amendment application. The Court held that the delay of six years was not a bar, the changes were bona fide corrections of typographical errors, and the injunction grant did not preclude amendment.

What did the court decide?

The writ petition was allowed, the impugned order of the Trial Court dated 21-07-2017 was quashed, and the application for amendment of plaint was allowed.

Smt Lakshmamma Vs Sri Shivaramaiah — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MARCH, 2022 BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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WRIT PETITION No.37151 OF 2017 (GM-CPC)

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BETWEEN:

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Smt. Lakshmamma W/o. Siddalingaiah, Aged about 52 years, R/at Punugumaranahalli Village, Tavarekere Hobli, Bengaluru South Taluk.

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Represented by its SPA Holder T.S. Ramesh S/o. Siddalingaiah Aged about 36 years, R/at Punugumaranahalli village, Tavarekere Hobli, Bengaluru South Taluk.

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.. Petitioner

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(By Smt. Radhika Jagadish, for Sri Nataraju T., Advocate)

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AND:

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Sri. Shivaramaiah, S/o. Late Kencha Murthaiah, Aged about 46 years,

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Smt. Jayamma W/o. Shivaramaiah, Aged about 41 years,

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Both are R/at Punugumaranahalli

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W.P.No.37151/2017 2 Village, Tavarekere Hobli, Bengaluru South Taluk. .. Respondents

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(By Sri. N. Subba Shastry, Advocate)

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This Writ Petition is filed under Article 227 of the Constitution of India, praying to issue a writ, order or direction in the nature of writ of certiorari, quashing the impugned order dated 21-07-2017 passed on I.A. No.IV in O.S.No.139/2011 by the Additional Civil Judge & JMFC, Magadi vide Annexure E, in the interest of justice and equity, consequently allow the I.A.No.IV filed by the petitioner vide Annexure C; etc.

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This Writ Petition coming on for Preliminary Hearing in ‘B’ Group, through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following:

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O R D E R

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The present petitioner as a plaintiff has instituted a suit against the present respondents in O.S.No.139/2011, arraigning them as defendants, in the Court of the learned Civil Judge (Junior Division) at Magadi (hereinafter for brevity referred to as “the Trial Court”) for the relief of declaration of her alleged easmentary rights and consequential relief of permanent injunction with respect to the suit schedule “B” property.

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W.P.No.37151/2017 3

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The defendants appeared and filed their Written Statement. During the pendency of the suit, the plaintiff filed I.A.No.IV, under Order VI, Rule 17 read with Section 151 of the CPC, seeking permission to carry out some amendment in the plaint. The said application came to be rejected by the order of the Trial Court dated 21-07-2017 and the same is challenged by the applicant, as petitioner in this writ petition.

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Learned counsel for the petitioner (plaintiff) submitted that, though the proposed amendment was in no way changing the nature of the suit and was not causing any prejudice to the interest of the defendants, but it was purely a typographical error, still, the Trial Court has proceeded to reject the application of the plaintiff, which is an erroneous order.

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Per contra, learned counsel for the respondents (defendants) submitted that, the application was filed under Order VI, Rule 17 of the CPC, after the institution of the

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W.P.No.37151/2017

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suit and subsequent to the defendants filing their Written Statement. More over, based upon the original pleading, a temporary injunction was also granted in favour of the plaintiff, the fruit of which, she has enjoyed hitherto, as such, the Trial Court has rightly rejected the application.

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The proposed amendment, which the plaintiff intended to carry out in the plaint was,

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(i) Deletion of the word in para-2, 9^th line, ”causing” and para-2, 19^th line, the word “covering” and inserting in their place the word, “carrying”;

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(ii) In “B” schedule to the suit, substituting the Survey Number ‘2’ with Survey Number ‘5’.

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However, the Trial Court, observing that the application is filed six years after the institution of the suit and that the plaintiff has been enjoying the relief of temporary injunction and the said order of temporary injunction since has been challenged by the defendants therein in Misc. appeal, the allowing of any amendment

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W.P.No.37151/2017

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would result in change in the nature of the suit. The said reasoning and finding of the Trial Court in rejecting the application filed by the petitioner herein(plaintiff) has to be held as erroneous for the following reasons:

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(a) Merely because the application was filed after six years of the institution of the suit, the same cannot be a prime factor for rejecting the application seeking amendment of the pleading, where the amendment sought appears to be genuine, bona fide and required for adjudication of the matter.

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(b) Merely because a party to the suit is enjoying the interim order in his/her favour would not by itself deny or deprive his/her entitlement to seek for any permission for carrying out amendment in their pleading under Order VI, Rule 17 of the CPC where he/she establishes that those proposed amendment was for bona fide reasons and required for proper adjudication of the matter and would not alter or change the nature of the suit or even does not

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W.P.No.37151/2017

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take away the accrued right, if any, in favour of the opposite party.

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(ci) In the instant case, the substitution of the words “causing” and “covering” in paragraph 2 at line Nos.9 and 19 respectively, with the word “carrying”, would, in no way, change the averments made in the said paragraph in any manner and would not affect the interest of the defendants also in any manner for the simple reason that, even otherwise the said paragraph with the existing words “causing” and “covering” in paragraph 2, at line Nos.9 and 19, would convey no meaning at all. Thus, those two words are necessarily required to be either clarified or altered or substituted. It is in that process, in order to show the intention of the plaintiff what she intended to say through paragraph No.2, the plaintiff is intending to substitute those two words with the word “carrying” and after the said word “carrying” is substituted for the words ”causing” and “covering”, the entire paragraph would give a

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W.P.No.37151/2017

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clear meaning which the plaintiff intended to place before the Court for adjudication of the matter;

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(d) Undisputedly, the suit is one for declaration of easmentary right with respect to the “B” schedule property to the plaint. The plaint mentions that “B” schedule property is a part of “A” schedule property. The description of the “A” schedule property is shown as property bearing Survey Number ‘5’. When the main property itself is bearing a particular Survey Number, a portion of it since generally carries the very same Survey Number, the depiction of the said Survey Number in the “B” Schedule property as Survey Number ‘2’ can at the best only be a typographical error and nothing more. Admittedly, the boundary to the suit schedule “B” property remains as it is without any changes. Therefore, the substitution of the figure ‘2’ with figure ‘5’ in the Survey Number of the “B” schedule to the plaint also in no manner varies the position or rights of the parties or cause prejudice to the interest of the defendants.

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W.P.No.37151/2017

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(v) Lastly, merely because the plaintiff was granted with the relief of temporary injunction and the said order of temporary injunction has been challenged by the opposite party (defendants) in a Misc. Appeal would not be a good reason for rejecting the prayer for amendment of the plaint.

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Needless to say that if at all the plaintiff was successful in obtaining an interim order showing the property number with a wrong survey number, then, the very purpose of obtaining the said interim order in her favour would not serve the purpose. However, under no stretch of imagination, it can be called that it would change the nature of the suit.

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Since the Trial Court without analysing the above

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aspects in its proper perspective, has proceeded to give an untenable reason for rejecting the application, I am of the view that the said order does not sustain. At the same time, the proposed amendment sought for by the plaintiff in the application filed under Order VI, Rule 17 of the CPC, deserves to be allowed.

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W.P.No.37151/2017

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Accordingly, I proceed to pass the following:

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O R D E R

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[i] The writ petition is allowed;

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[ii] The order dated 21-07-2017 passed

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by the learned Additional Civil Judge and J.M.F.C. at Magadi, on I.A.No.IV in O.S.No.139/2011, is

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quashed.

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Consequently, the I.A.No.IV filed by the plaintiff under Order VI, Rule 17 read with Section 151 of the CPC, stands allowed.

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Sd/JUDGE

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BMV*

Smt Lakshmamma v. Sri Shivaramaiah

Case brief

What is this about?

What did the court decide?

Smt Lakshmamma v. Sri Shivaramaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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