Allowed

Sri Gopanalu Hanumanthappa v. Sri Durugappa

Karnataka HC23 Aug 2023WP/4206/2021

Case brief

AI extract

What is this about?

This writ petition challenged a trial court order rejecting an amendment application under Order VI Rule 17 CPC. The High Court held the trial court erred in refusing amendment to allow the defendant to properly defend against new evidence and altered boundary claims.

What did the court decide?

The impugned order dated 19.03.2020 allowing IA No. 10 is set aside. IA No. 10 is allowed.

Sri Gopanalu Hanumanthappa Vs Sri Durugappa — Execution and Attachment | Karnataka HC (2023)

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NC: 2023:KHC:30113 WP No. 4206 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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WRIT PETITION NO.4206 OF 2021 (GM-CPC)

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BETWEEN:

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SRI. GOPANALU HANUMANTHAPPA, S/O DURUGAPPA, AGED ABOUT 52 YEARS, R/O LOKIKERE VILLAGE, DAVANAGERE DISTRICT – 577 544.

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…PETITIONER

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(BY SRI. D.P.MAHESH, ADVOCATE)

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AND:

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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SRI. DURUGAPPA, S/O DURUGAPPA, AGED ABOUT 52 YEARS, R/O LOKIKERE VILLAGE, DAVANAGERE DISTRICT – 577 544.

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…RESPONDENT

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(BY SMT.KRITHIKA BHAT K., ADVOCATE FOR SRI.SANATH KUMAR SHETTY K., ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 19.03.2020, PASSED ON I.A.NO.10 IN O.S.23/2009 BY THE LEARNED ADDITIONAL CIVIL JUDGE, DAVANAGERE VIDE ANNEXURE - A TO THE WRIT PETITION.

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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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NC: 2023:KHC:30113 WP No. 4206 of 2021

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ORDER

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This writ petition is filed under Article 227 of the Constitution of India, seeking prayer to quash the order dated 19.03.2020 passed on I.A.No.10 in O.S.No.23/2009 on the file of the Additional Civil Judge, Davanagere.

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Brief facts giving rise to file this petition are that the petitioner herein is the defendant in O.S.No.23/2009 filed by the respondent-plaintiff seeking prayer to declare that the respondent is owner in possession and enjoyment of the suit schedule property and further prays to restrain the petitioner herein or anyone under them from interfering with the peaceful possession and enjoyment of the suit schedule property. The said suit came to be dismissed by the judgment and decree dated 18.01.2016. Being aggrieved by the same, respondentplaintiff has filed R.A.No.33/2016, which came to be allowed by setting aside the judgment and decree passed in O.S.No.23/2009 dated 18.01.2016 by remitting the matter back to the trial Court with a direction to accord opportunity to adduce additional evidence and to dispose of the suit in accordance with law on priority basis. After remand, the petitioner who is the defendant has filed an application-

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NC: 2023:KHC:30113 WP No. 4206 of 2021

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I.A.No.10 under Order VI Rule 17 of CPC, seeking for amendment of written statement. The said application came to be dismissed vide order dated 19.03.2020. Being aggrieved by the same, the present writ petition is filed.

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Sri. D.P.Mahesh, learned counsel appearing for the

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petitioner submits that the trial Court has committed an grave error in rejecting the application filed under Order VI Rule 17 of CPC, seeking amendment of the written statement on the ground that the Appellate Court while remanding the suit has only directed to dispose of the suit by giving an opportunity to adduce additional evidence for the parties and there is no direction to amend the pleadings. It is further submitted that the trial Court has committed grave error in not allowing the petitioner to amend the written statement, as the respondent is allowed to adduce the additional evidence, the petitioner - defendant has a right to cross witness on additional evidence, and unless the petitioner is permitted to amend his written statement, he will not be allowed to cross witness on additional evidence and he will not be in a position to put forth his defence properly in the suit. The respondent is placing reliance on the sale deed dated 06.02.1975 and based on the sale deed,

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he intends to adduce additional evidence by changing the boundary and the petitioner who is the defendant is required to take appropriate defence with reference to the pleading by amending the written statement. Unless he is permitted to take such defence in the written statement, the rights of the petitioner to defend in the suit would severely affect and he would not be able to cross-examine the respondent/plaintiff in the suit in effective manner. The said aspect has not been properly appreciated by the trial Court and erroneously rejected the application filed seeking for the amendment of written statement. It is also submitted that if the application seeking amendment of the written statement is allowed, no harm or prejudice would be caused to the respondent herein. On the other hand, if the same is rejected, the defendant would lose his defence in the suit, it would cause prejudice to him. Hence, he seeks to allow the application by setting aside the impugned order.

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Per contra, Smt. Krithika Bhat.K, learned counsel appearing for the respondent supports the impugned order of the trial Court and submits that the Appellate Court while setting aside the judgment and decree dated 18.01.2016

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passed in O.S.No.23/2009 has directed the parties to adduce additional evidence and there is no direction for amendment of the pleadings. It is submitted that if the application for the amendment of written statement is allowed, it would further delay the proceedings before the trial Court. Accordingly, she seeks to dismiss the writ petition.

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I have heard the learned counsel for the petitioner and learned counsel for the respondent. Perused the materials on record.

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It is not in dispute that the respondent herein has

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filed the suit seeking prayer to declare that the respondent is owner in possession and enjoyment of the suit schedule property and the said suit came to be dismissed by the judgment and decree dated 18.01.2016 and being aggrieved by the same, the respondent-plaintiff has filed R.A.No.33/2016, which came to be allowed. The Appellate Court has remanded the matter back to the trial Court with a direction to accord an opportunity to adduce additional evidence to the parties. The Trial Court has recorded the finding that the Appellate Court has not afforded an opportunity to both the parties to file

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additional pleadings while rejecting the application. It is the specific contention of the petitioner is that there is discrepancy in the schedule of the sale deed and suit schedule property and

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while remanding the matter back to the trial Court, the Appellate Court has permitted respondent/plaintiff to adduce fresh/additional evidence. When things stood thus, the petitioner - defendant is required to put forth his defence by amending the written statement and unless he is allowed to amend the written statement, he would not be in a position to effectively cross-examine the witness on additional evidence. I find force in the submission of the learned counsel for the petitioner / defendant. The petitioner - defendant intends to put forth his proper defence to the additional evidence placed by the respondent by amending the written statement. It is a specific defence of the petitioner / defendant that plaintiff's claim is unjust based on the said sale deed and very schedule of the plaint with reference to boundaries and the boundaries of sale deed are different and what the plaintiff is claiming is more than the sale deed in the plaint and the petitioner wanted to take specific defence to the said effect in his written statement. When things stood thus, the trial Court has erred in rejecting

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NC: 2023:KHC:30113 WP No. 4206 of 2021

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the application seeking amendment of the written statement. The proceedings of the suit are at initial stage, the respondent-plaintiff is required to prove his case before the trial Court based on the pleadings, evidence and by permitting the petitioner-defendant to amend the written statement would not cause any prejudice or harm to the respondent-plaintiff. Hence, in my considered view, the trial Court has committed grave error in rejecting the amendment application on the sole ground that while remanding the matter, the Appellate Court has not permitted the parties to amend the pleadings is perverse and contrary to settled principles of law.

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For the reasons recorded supra, writ petition is allowed. The impugned order dated 19.03.2020 on I.A.No.10 is set aside. I.A.No.10 is allowed. The petitioner is permitted to amend the written statement.

Ordered accordingly.

No order to costs.

Sd/JUDGE

SMJ

Sri Gopanalu Hanumanthappa v. Sri Durugappa

Case brief

What is this about?

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Sri Gopanalu Hanumanthappa v. Sri Durugappa

Case brief

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