Allowed

Mallangouda Sankangouda Patil v. Ramapppa Kallappa Ningannure

Karnataka HC5 Jul 2023WP/101286/2023

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a writ petition seeking to set aside a Trial Court order rejecting an amendment application. The Court held the defendant claims were misleading and the amendment, replacing names with the cooperative society details, did not alter the suit nature.

What did the court decide?

Impugned order set aside; Amendment application allowed; Plaintiff permitted to file amended plaint.

Mallangouda Sankangouda Patil Vs Ramapppa… — Civil Procedure and Limitation | Karnataka HC (2023)

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NC: 2023:KHC-D:6733 WP No. 101286 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO. 101286 OF 2023 (GM-CPC)

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BETWEEN:

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MALLANGOUDA SANKANGOUDA PATIL, AGE: 75 YEARS, OCC: RETIRED ENGINEER, R/O: PLOT NO. 71, SHAH NAGAR, BELAGAVI, TQ: AND DIST: BELGAVI-590010.

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…PETITIONER

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(BY SRI SHIVRAJ S. BALLOLI, ADVOCATE)

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AND:

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RAMAPPPA KALLAPPA NINGANNURE, AGE: 62 YEARS, OCC: SERVICE, R/O: LIG-94, ASHOK NAGAR, BELAGAVI, TQ: AND DIST: BELAGAVI-590016.

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ROHAN HADIMANI T

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Digitally signed byROHAN HADIMANI T Location: High Court of Karnataka, Dharwad

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KUMARI SHRUTI D/O. BASAVRAJ PATIL, AGE: 39 YEARS, OCC: BUSINESS, R/O: HOUSE NO. 28, II STAGE, HANUMAN NAGAR, BELAGAVI, TQ: AND DIST: BELAGAVI-590001.

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IQBALAHMED HUSSAINSAB PEERJADE, AGE: 32 YEARS, OCC: SERVICE, R/O: KONNUR TALUKA, GOKAK, TQ: GOKAK, DIST: BELAGAVI-591307.

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…RESPONDENTS

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(BY SRI G.I. GACHCHINAMATH, ADVOCATE FOR RESPONDENT NO.3; NOTICE TO RESPONDENT NOS.1 AND 2 IS SERVED)

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2 - NC: 2023:KHC-D:6733 WP No. 101286 of 2023

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 23/01/2023 PASSED BY THE LEARNED I ADDITIONAL CIVIL JUDGE AND JMFC BELAGAVI IN O.S. NO. 276/2012 ON I.A. NO. 20 FILED UNDER ORDER VI RULE 17 OF CODE OF CIVIL PROCEDURE CODE, 1908 VIDE ANNEXURE-A.

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THIS 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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Heard learned counsel Sri Shivaraj S. Balloli

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appearing for petitioner and learned counsel Sri G. I. Gachchinamath, appearing for respondent No.3. Respondent Nos.1 and 2 though served are

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unrepresented. It is also stated that before the Trial Court they were placed exparte.

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With consent of both learned counsels, matter is taken up for final disposal.

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For the sake of convenience, ranking of the parties are referred to as per their status before the Trial Court.

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This petition is filed by the plaintiff in O.S.No.276/2012. Plaintiff filed an application under Order VI Rule 17 of CPC to carryout certain amendments by way of deletion and incorporation. The said application came to

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be rejected by the Trial Court by the impugned order dated 23.01.2023. Initially, the plaintiff filed a suit against five defendants. Defendant Nos.1 and 2 were Cooperative Societies represented by its Chairman and Secretary, which were arraigned as formal parties and since no relief was sought against them, the plaintiff filed a memo seeking not pressing the suit as against defendant Nos.1 and 2. Accordingly, the suit against defendant Nos.1 and 2 came to be dismissed by the trial Court by the order dated 30.03.2022. Pursuant to deletion of defendant Nos.1

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and 2 from the suit, plaintiff filed I.A.No.20 under Order VI Rule 17 of CPC seeking amendment of plaint by replacing the word "defendant Nos.1 and 2 with their original names i.e., Asadkhan Co-operative Housing Society, Belagavi". The said application was stoutly objected by the contesting defendants and after hearing the parties, the said application came to be rejected by the trial Court, which is impugned herein.

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It is the vehement contention of learned counsel for petitioner that the impugned order passed by the trial

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Court rejecting the application for amendment is erroneous, arbitrary and without application of judicious mind and hence, the same deserves to be set aside. It is further contended by learned counsel for petitioner/ plaintiff that the plaintiff is a dominus litis , he is entitled to delete and add whom he wants in the suit filed by him and based on memo defendant Nos.1 and 2 were deleted by the Trial Court, now he has filed application to delete the name of defendant Nos.1 and 2 in the formal capacity and include the name by way of insertion the name of cooperative housing society. Thereby, this would not change the nature of the suit in any manner whatsoever, but the trial Court has rejected the application without appreciating the fact that the no relief is claimed and it would not change or alter the nature of the suit. Hence, he seeks to allow his petition and consequently allow the application for amendment.

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Per Contra , learned counsel Sri G. I. Gachchinamath vehemently opposes the petition by contending that the plaintiff initially arraigned the

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defendant Nos.1 and 2 and made allegation against defendant Nos.1 and 2 in the plaint. Thereafter, by deleting defendant Nos.1 and 2 from the cause title of the suit has now sought for insertion by way of amendment the name of the co-operative housing society and has retained the relief in the prayer sought as against defendant No.2. Therefore, the plaintiff has not followed the correct procedure firstly for deletion and secondly, while incorporating amendment to the plaint.

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I have heard the arguments of learned counsel for

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the parties and perused the impugned order. The reason for dismissing the application by the Trial Court is "as the suit against defendant Nos.1 and 2 is dismissed this Court becomes functus officio to pass orders against defendant Nos.1 and 2 or restore the suit against defendant Nos.1 and 2 unless and until there is a orders from appellate Court". I am afraid that this finding and reasoning of the trial Court is perverse, illegal for the reason that the trial Court has already passed the order permitting the plaintiff to delete the defendant Nos.1 and 2 from the suit and

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defendant Nos.1 and 2 no longer exist in the suit proceedings. It is only the nomenclature of defendant Nos.1 and 2 in the form 'the Co-operative Housing Society' being included and inserted by way of amendment. The question of trial Court become functus officio to pass any orders against defendant Nos.1 and 2 would not arise as defendant Nos.1 and 2 are not parties to the suit any more neither is plaintiff seeking to bring the defendant Nos.1 and 2 by including them in the suit proceedings.

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Be that as it may, the plaintiff in the suit is the

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dominus litis, he is the master of his case, it is his discretion to include or delete any person from the suit proceedings. Even though a prayer is sought against defendant Nos.1 and 2, but they are not parties to the suit. It is discretion of the Trial Court to take a decision while deciding the main suit as to what relief could be granted to defendants in such circumstances. Merely because there is a declaration sought as against defendant No.2 with regard to the sale deed executed by defendant No.2 in favour of defendant No.3 is not binding on the

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plaintiff. The amendment sought by the plaintiff cannot be rejected.

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Learned counsel for petitioner-plaintiff contends that the trial is concluded and he is not inclined to lead any further evidence and the matter is set down for arguments. Therefore, the application if allowed is not going to revert back or change the stage of the suit and the parties would continue from the stage where it is stopped to address arguments on the main matter. While considering the application for amendment of the pleadings in the plaint, it is at the discretion of the Court based on the facts and circumstances of each case that such application is decided.

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In the present case, the amendment that is sought for by the plaintiff is merely deletion of defendant Nos.1 and 2 from the plaint and insertion of the words 'Asadkhan Co-operative Housing Society, Belagavi, represented by its Chairman' and Asadkahan Co-operative Housing Society Limited, Belagavi, represented by its Secretary, respectively, in the relevant portions of

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insertions sought for in the application. On a perusal of the amendment sought for by the plaintiff, this Court finds that there is no change of nature of the suit or cause of action or anything adverse to that of the defendants. The trial Court need not go into the aspects of the main merits of the case while deciding I.A. for amendment. Under the circumstances, the application deserves to be allowed.

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If the trial Court comes to the conclusion that any of the prayer cannot be allowed in view of the deletion of the defendants No.1 and 2, which is sought against defendants No.1 and 2, it is at the discretion of the trial Court to pass such orders in accordance with law. In view of the above, I pass the following:

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ORDER

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(i) The writ petition is allowed.

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(ii) The impugned order dated 23.01.2023

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passed by the I Addl. Civil Judge and JMFC, Belagavi, in O.S.No.276/2012 on I.A.No.20 filed

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under Order VI Rule 17 of CPC is hereby set aside.

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(iii) Consequently, I.A.No.20 is allowed. The plaintiff shall be permitted to carryout amendment and file the amended plaint before the trial Court.

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No order as to costs.

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Sd/JUDGE

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CKK,MRK

Mallangouda Sankangouda Patil v. Ramapppa Kallappa Ningannure

Case brief

What is this about?

What did the court decide?

Mallangouda Sankangouda Patil v. Ramapppa Kallappa Ningannure

Case brief

What is this about?

What did the court decide?

What the court decided

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