Allowed

Smt. Padmavathi v. Sri. Krishna

Karnataka HC14 Dec 2023WP/6429/2023

Case brief

AI extract

What is this about?

The High Court set aside the trial court order rejecting the amendment application. The court held the substitution of the word 'cremated' for 'burial' in the plaint was a bona fide mistake and allowed the amendment to do substantial justice without prejudice to the respondents.

What did the court decide?

The impugned order was set aside, I.A. No. 6 was allowed, and the petitioners were permitted to amend the plaint upon payment of costs.

Smt. Padmavathi Vs Sri. Krishna — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:45662 WP No. 6429 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 6429 OF 2023 (GM-CPC)

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BETWEEN:

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SMT. PADMAVATHI, W/O LATE N THIMMAPPA, AGED ABOUT 65 YEARS,

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(SENIOR CITIZEN BENEFIT NOT CLAIMED).

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T CHANDRAKUMAR, S/O LATE N THIMMAPPA, AGED ABOUT 41 YEARS,

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T CHIDANANDA, S/O LATE N THIMMAPPA, AGED ABOUT 39 YEARS,

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Digitally signed by A K CHANDRIKA

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Location: HIGH COURT OF KARNATAKA

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ALL ARE R/O HSWC, 19, HUTHA COLONY, BHADRAVATHI, SHIVAMOGGA – 577 209.

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(BY SRI SUNIL KUMAR B N, ADVOCATE)

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AND:

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…PETITIONERS

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SRI. KRISHNA, S/O LATE NINGAIAH, AGED ABOUT 60 YEARS, R/O NO. 273, 7^TH A CROSS, GUTTEPALYA, LALBAG, SIDDAPURA, B V NAGAR, JAYANAGAR IST BLOCK,

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NC: 2023:KHC:45662 WP No. 6429 of 2023

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BENGALURU-560011.

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SRI VIJAYKUMAR M C, S/O LATE CHANEGOWDA, AGED ABOUT 38 YEARS, NO.26, M HOSUR, KALLUDEVANAHALLI GRAMA DAKHALE, NAGAMANGALA TALUK, MANDYA DISTRICT – 577 384.

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…RESPONDENTS

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(BY SRI NARASIMHA MURTHY K, ADVOCATE FOR R1, R2 SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF THE INDIA PRAYING TO SET ASIDE THE ORDER DTD 17/01/2023, PASSED BY THE PRL. CIVIL JUDGE AND JMFC, BHADRAVATHI IN O.S.NO. 447/2018, VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW I.A.NO.6 FILED BY THE PETITIONER.

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THIS PETITION COMING ON FOR ORDERS THIS DAY THE COURT MADE THE FOLLOWING:

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ORDER

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Though the matter is listed for hearing on

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interlocutory application, with the consent of the learned counsel for the parties, the matter is taken up for final disposal.

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Heard learned counsel Sri.B.N.Sunil Kumar for petitioners and learned counsel Sri.K.Narasimha Murthy

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3 - NC: 2023:KHC:45662 WP No. 6429 of 2023

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for respondent No.1/defendant. Perused the writ petition papers.

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Learned counsel for the petitioners/plaintiffs would submit that the petitioners are before this Court, aggrieved by order dated 17.01.2023 rejecting I.A.No.6 filed under Order VI Rule 17 of CPC to amend the plaint to replace the word “ burial ” by word “ cremated ”. It is submitted that the suit of the petitioners/plaintiffs is one for permanent injunction against the respondent No.1/defendant, not to remove the body of Late N.Thimmappa from ‘B’ schedule property. It is submitted that body of Late N.Thimmappa, father of plaintiffs No.2 and 3 was cremated in ‘B’ schedule property. Further, it is stated in the plaint that removal of body of Late N.Thimmappa from ‘B’ schedule property would cause disturbance to the plaintiffs. When the suit was set down for further evidence of plaintiffs, the petitioners/plaintiffs filed I.A.No.6 under Order VI Rule 17 of CPC to amend the plaint to replace the word “burial” by word “cremated”.

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NC: 2023:KHC:45662 WP No. 6429 of 2023

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Learned counsel would submit that the trial Court committed an error in rejecting the amendment application. It is submitted that the use of word ‘burial’ in place of ‘cremated’ is only a typing mistake and it is by inadvertence. Learned counsel would submit that, if the body is buried, the petitioners/plaintiffs could not have sought prayer to restrain the defendants from removing the body of Late N.Thimmappa. When the body is cremated only such prayer could be sought. Thus, it is stated that the amendment was only to correct typographical error. Therefore, he prays for allowing the writ petition.

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Per contra, learned counsel Sri.Narasimha Murthy for respondents/defendants would support the order passed by the trial Court and submits that the trial Court rightly rejected the amendment application. Learned counsel would submit that if the amendment is allowed, the nature of the suit would change and it would prejudice the case of the respondents/defendants. Further, learned counsel for

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respondents/defendants would submit that schedule ‘A’ and ‘B’ properties absolutely belong to defendant No.1 and merely, because the body of husband of first plaintiff is allegedly burnt in the schedule ‘B’ property, without the consent or permission of defendant No.1, it would not give any right to the plaintiffs to seek any kind of relief. Thus, learned counsel would pray for dismissal of the writ petition.

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Having heard the learned counsel for the parties and

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on perusal of the writ petition papers, I am of the view that the trial Court committed an error in rejecting the petitioners’ application for amendment filed under Order VI Rule 17 of CPC, for the following reasons:

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The suit of the petitioner/plaintiff is one for permanent injunction. The suit prayer reads as follows:

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“(a) For permanent injunction restrain the defendants their men, agent, servant etc., from removal of burial body of late N.Thimmappa from ‘B’ schedule property whatsoever in any manner.”

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NC: 2023:KHC:45662 WP No. 6429 of 2023

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The above prayer is for permanent injunction, to restrain the defendants from removal of burial body of Thimmappa from ‘B’ schedule property. If the body is buried, the body cannot be removed, only when the body is cremated, the question of removal or otherwise of body would arise. When the petitioners/plaintiffs have sought not to remove the body, the word ‘cremated’ ought to have been used. It appears that by mistake the word ‘burial’ is used in place of cremated. It appears to be bonafide mistake of the petitioners/plaintiffs. By mistake and inadvertence, the word burial is used in place of cremated. Mere allowing of amendment would not entitle the petitioners/plaintiffs for the reliefs sought in the suit. It is for the petitioners/plaintiffs to prove that they are entitled for such a prayer.

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Order VI Rule 17 of CPC provides for amendment of pleadings. In terms of the said provision the Court may at any stage of the proceedings allow either of the parties to alter or amend pleadings in such manner and on such

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terms, as may be just and necessary for the purpose of determining real questions in controversy between the parties. But the proviso to sub-rule puts restriction on the Court, while considering the amendment application after commencement of trial. If the amendment sought is after commencement of trial, unless the court is satisfied with regard to due diligence that the party could not have raised the matter before commencement of trial, the Court would not get jurisdiction to allow such application. Normally, amendments are allowed to do substantial justice and to minimize litigations.

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Normally, the amendments are allowed to avoid multiplicity of proceedings and to minimize the litigation. The amendment shall be allowed in the interest of justice. Further, amendment as sought would not prejudice the case of the respondents/defendants. Hence, the following order:

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The impugned order dated 17.01.2023 passed on I.A.No.6 by the Principal Civil Judge and JMFC,

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NC: 2023:KHC:45662 WP No. 6429 of 2023

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Bhadravathi is set aside. I.A.No.6 filed under Order VI Rule 17 of CPC is allowed.

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The petitioners/plaintiffs are permitted to amend the plaint as prayed, on payment of cost of Rs.5,000/- payable to the respondents/plaintiffs on the next date of hearing before the trial Court.

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The trial Court shall endeavour for early disposal of the suit with the cooperation of the parties as well as their counsel.

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Sd/JUDGE

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MPK

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List No.: 2 Sl No.: 3

Smt. Padmavathi v. Sri. Krishna

Case brief

What is this about?

What did the court decide?

Smt. Padmavathi v. Sri. Krishna

Case brief

What is this about?

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