Allowed

Smt. Muniyamma v. Sampangappa

Karnataka HC23 Aug 2023WP/5919/2020

Case brief

AI extract

What is this about?

Writ petition filed to quash an order dismissing an application under Order VI Rule 17 CPC to amend the plaint in a property suit. The High Court allowed the petition, set aside the trial court order, and permitted the amendment to restrict the claim.

What did the court decide?

Impugned order set aside. Application for amendment of plaint allowed subject to payment of Rs. 10,000 costs to respondents.

Smt. Muniyamma Vs Sampangappa — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:30218 WP No.5919 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.5919 OF 2020 (GM-CPC)

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BETWEEN:

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SMT. MUNIYAMMA W/O SONNALLAPPA AGED ABOUT 86 YEARS GOLLAHALLI VILLAGE MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT-583101.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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SMT. ASHWATHAMMA W/O SONNIAH

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D/O SONNALLALPPA

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AGED ABOUT 64 YEARS KANAGALA VILLAGE, TEKAL HOBLI MALUR TAKU, KOLAR DISTRICT.

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SAROJAMMA W/O RAMAKRISHNAPPA AGED ABOUT 64 YEARS.

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VENKATESH S/O RAMAKRISHNAPPA AGED ABOUT 47 YEARS.

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NARAYANAMMA D/O LATE RAMAKRISHNAPPA W/O SAMPANGI AGED ABOUT 44 YEARS.

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SRINIVAS

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S/O RAMAKRISHNAPPA

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NC: 2023:KHC:30218 WP No.5919 of 2020

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AGED ABOUT 47 YEARS.

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PETITIONERS NO.3 TO 6 ARE R/AT GOLLAHALLI VILLAGE MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT-583101.

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…PETITIONERS

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(BY SMT. NEERAJA KARANTH, ADV.,)

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AND:

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SAMPANGAPPA S/O SONNAPPA AGED 40 YEARS.

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RATHNAMMA D/O LATE NANJUNDAPPA W/O KENCHAPPA AGED 59 YEARS.

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RATHNAMMA D/O LATE NANJUNDAPPA W/O RAMRAJ AGED ABOUT 54 YEARS.

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KRISHNAPPA S/O LATE NANJUNDAPPA AGED ABOUT 59 YEARS.

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RESPONDENTS NO.1 TO 4 ARE R/AT GOLLAHALLI VILLAGE MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT-582101.

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VENKATAGIRIYAPPA S/O NANJUNDAPPA AGED ABOUT 64 YEARS.

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NC: 2023:KHC:30218 WP No.5919 of 2020

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RAMESH S/O NANJUNDAPPA AGED ABOUT 31 YEARS.

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NARAYANASWAMY S/O VENKATAGIRIYAPPA AGED ABOUT 44 YEARS.

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SMT. KEMPAMMA W/O VENKATAGIRIYAPPA AGED ABOUT 44 YEARS.

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RESPONDENTS NO.5 TO 8 ARE R/AT. GOLLAHALLI VILLAGE MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT-583101.

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…RESPONDENTS

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(BY SRI. RAMESH KUMAR R.V. ADV., FOR R1 TO R8)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 27.2.2020 IN I.A.NO.34 IN O.S.NO.134/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMF, MALUR FILED AS ANNEXURE-A TO THE WRIT PETITION. GRANT AN INTERIM ORDER TO STAY THE FURTHER PROCEEDINGS IN O.S.NO.134/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC MALUR.

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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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4 - NC: 2023:KHC:30218 WP No.5919 of 2020

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ORDER

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This writ petition is filed by the petitioners-plaintiffs under Article 227 of the Constitution of India seeking to

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quash the impugned order dated 27.02.2022 passed on I.A.No.34 in O.S.No.134/2011 by the Senior Civil Judge & JMFC, Malur, (for short, ' the trial Court '), wherein the application of petitioners-plaintiffs filed under Order VI Rule 17 read with Section 151 of CPC seeking amendment of the plaint was dismissed.

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2. The parties are referred to as per their ranking before the trial Court. The petitioners are plaintiffs and respondents are defendants before the trial Court.

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3. The brief facts giving rise to filing of this petition are that the petitioners-plaintiffs have filed the suit seeking prayer to pass the judgment and decree declaring that the plaintiffs are the lawful owners of the suit schedule property on the basis of regrant order issued by the Tahsildar and further declare the illegal stray

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entries revenue document in favour of defendant No.2 are null and void and for permanent injunction restraining the defendants.

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4. The plaintiffs have filed an application under Order VI Rule 17 of CPC seeking to permit the plaintiffs to amend the plaint by deleting the word "S.4/1 and" and consequential deletion of the boundaries of the suit schedule property. The said application was considered and rejected by the trial Court vide order dated 27.02.2020.

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5. Smt.Neeraja Karanth, learned counsel for the petitioners-plaintiffs submits that the trial Court has committed error in rejecting the application of the petitioners seeking for amendment of the pleadings by deleting Sy.No.4/1 and by restricting their claim to an extent of 17 guntas in Sy.No.4/2 of Gollahalli Village, Masthi Hobli, Malur Taluk, from the suit schedule property. It is submitted that the petitioners are restricting their

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claim to the extent of 17 guntas in Sy.No.4/2 as the dispute between the plaintiffs and the defendants is only to the said extent. It is submitted that if the application for amendment is allowed, the plaintiffs undertake that they would not adduce any further evidence or new evidence in the pending suit. It is further submitted that the trial Court has failed to appreciate the fact that on earlier occasion, the trial Court has rejected the impleading application filed by the plaintiffs wherein the plaintiffs intend to implead the persons in possession over the Sy.No.4/1 and when the said application is rejected and the persons who are in possession of Sy.No.4/1 are not impleaded as parties to the suit, no relief would survive would against them. Hence, the application for amendment was filed. She seeks to allow the writ petition.

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6. Per contra, Sri.Ramesh Kumar R.V., learned counsel for the respondents-defendants supports the impugned order of the trial Court and submits that the filing of the application by the plaintiffs is at the belated

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stage and the present application is filed seeking for amendment is filed only with an intention protract the proceedings. In support of the said contention, learned counsel for the respondents places reliance on the decision of the Rajasthan High Court in the case of Badri Narayan and another v. Ram Gopal and another reported in AIR 1992 Rajasthan 136 to contend that the amendment of plaint cannot be allowed when the matter is set down for arguments and in the instant case, the petitioners are not diligent in seeking the prayer for amendment at the initial stage of the trial. It is further submitted that the petitioners have admitted in the plaint that they are not in possession of the suit schedule property and the suit for declaration is not maintainable without the petitioners being in possession. Hence, he seeks for dismissal of the writ petition.

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7. I have heard learned counsel for the petitioners-plaintiffs, learned counsel for respondentsdefendants and perused the material on record and have

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given my anxious consideration to the rival contentions putforth by the learned counsel for the parties. The only question that arise for consideration is "Whether the order dated 27.02.2022 passed on I.A.No.34 in O.S.No.134/2011 required to be interfered with in the present petition".

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8. It is not in dispute that the petitioners herein have filed the suit for declaration that the petitionersplaintiffs are the lawful owners of the suit schedule property on the basis of the regrant order and further prayer to declare the illegal entries in the revenue records made in favour of defendant No.2 are null and void and further prayer for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.

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9. The petitioners have sought a declaration and consequential prayer in the said suit insofar as properties bearing Sy.Nos.4/1 and 4/2 situated at Gollahalli Village,

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Masthi Hobli, Malur Taluk, measuring 4 acre 20 guntas with the boundaries mentioned therein. It is also not in dispute that when the matter was set down for arguments, the present application is filed seeking for amendment of the plaint by deleting Sy.No.4/1 from the pleading as well as from the prayer column from the plaint. In effect, the plaintiffs are giving up their claim insofar as land falls within the Sy.No.4/1 of Gollahalli Village, Masthi Hobli, Malur Taluk by restricting their suit only to an extent of 17 guntas in Sy.No.4/2 of Gollahalli Village, Masthi Hobli, Malur Taluk. On perusal of the material on record, it is evident that the petitioners on earlier occasion have filed an application to implead the residents, who are in possession of the land measuring 4 acre in Sy.No.4/1 of Gollahalli Village, Masthi Hobli, Malur Taluk and the said application was rejected by the trial Court. When the application for impleadment was rejected, the plaintiffs' relief of declaration and consequential prayer would not survive for consideration. No doubt, the present

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application is filed at the belated stage of the proceedings.

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The normal rule is to allow the application, the rejection should be an exception. Mere allowing an application for amendment of the plaint does not mean that the plaintiffs have been given the relief as sought in the plaint. The defendants are at liberty to take up all the contentions available in law during the course of arguments. The learned counsel for the petitioners-plaintiffs has made a categorical statement that they does not want to adduce any evidence/further evidence, in view of the same, it would not be appropriate to reject the application of the petitioners seeking amendment of the plaint. By allowing the application for amendment, no injustice is caused to the other side. In my considered view, the trial Court has committed an error in rejecting the application filed under Order VI Rule 17 of the CPC. I am of the considered view that the interest of justice would be met if the application seeking amendment filed under Order VI Rule 17 of CPC is allowed.

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10. For the reasons recorded supra, the writ petition is allowed and the impugned order dated 27.02.2022 passed on I.A.No.34 in O.S.No.134/2011 by the Senior Civil Judge & JMFC, Malur, is set aside. The application I.A.No.34 filed under Order VI Rule 17 of CPC is allowed subject to petitioners paying cost of Rs.10,000/(Rupees Ten Thousand only) to the respondentsdefendants.

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The trial Court is directed to consider and dispose of dispose of O.S.No.134/2011 on priority basis.

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Sd/JUDGE

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BSR

Smt. Muniyamma v. Sampangappa

Case brief

What is this about?

What did the court decide?

Smt. Muniyamma v. Sampangappa

Case brief

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What did the court decide?

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