Allowed

Shri Jagannath Revappa Kale v. Smt. Jayashree W/O Jagannath Sutar

Karnataka HC7 Nov 2024WP/100696/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition under Article 226 of the Constitution challenging an order dismissing an application to amend a plaint for injunction. The Bench held that refusal would lead to multiplicity of proceedings and allowed the amendment in the suit filed by the petitioner.

What did the court decide?

The writ petition was allowed, the impugned order dated 04.01.2023 was set aside, the amendment application in the suit was allowed, and the plaintiff was directed to file the amended plaint by 12.12.

Shri Jagannath Revappa Kale Vs Smt. Jayashree W/O… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:16285 WP No. 100696 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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WRIT PETITION NO.100696 OF 2023 (GM-CPC)

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BETWEEN:

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SHRI JAGANNATH REVAPPA KALE, AGE: 70 YEARS, OCC: RTRD., EMPLOYEE, R/O: 77/1, 3^RD CROSS, 3^RD MAIN, 1^ST STAGE, WEST OF CHORD ROAD, MANJUNATH NAGAR, BENGALURU – 560 010.

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…PETITIONER

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(BY SRI PRASAD PATIL, ADVOCATE)

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AND:

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SMT. JAYASHREE W/O. JAGANNATH SUTAR, AGE: 35 YEARS, OCC: HOUSEHOLD WORKS, R/O: 794/6, GAJANAN ROAD, HINDU NGAR, TILAKWADI, DIST: BELAGAVI – 590 006.

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…RESPONDENT

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka

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(BY SRI SADYOJIT B. BALLIGATTIMATH, ADVOCATE FOR SRI S.B.HEBBALLI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION QUASHING THE ORDER PASSED BY THE LEARNED VI ADDL. CIVIL JUDGE AND JMFC, BELAGAVI DATED 04/01/2023, ON I.A.8 IN O.S.NO.1026/2017 PRODUCED AS ANNEXURE-A AND ETC.,

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

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NC: 2024:KHC-D:16285 WP No. 100696 of 2023

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present writ petition is filed by the plaintiff challenging the order dated 04.01.2023 passed on I.A No.VIII under Order VI Rule 17 R/w Section 151 of the Code of Civil Procedure, 1908¹ , in O.S No.1026/2017 by the VI Additonal Civil Judge and JMFC, Belagavi² .

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The relevant facts leading to the present

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petition are that the plaintiff filed a suit in O.S No.1026/2017 for injunction. It is the case of the petitioner that the defendant has illegally started construction in the property of the plaintiff and is trying to interfere with the lawful possession of the suit property. The defendant entered appearance in the suit and contested the same by filing a written statement. Subsequently, the plaintiff filed I.A No.VIII under Order VI Rule 17 R/w Section 151 of the CPC to amend the plaint. The defendant objected to the said application. The Trial

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘Trial Court’

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3 - NC: 2024:KHC-D:16285 WP No. 100696 of 2023

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Court, by its order dated 04.01.2023, dismissed the said application. Being aggrieved, the present writ petition is filed.

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Heard submissions of learned counsel Sri.Prasad Patil for the petitioner and learned Counsel Sri.Sadyojat.R.Balligattimath for learned counsel Sri.S.B.Hebballi for the respondent/defendant.

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This Court, vide order dated 03.02.2023, while issuing emergent notice in the writ petition has granted interim stay of further proceedings in the suit.

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Learned counsel for the petitioner assailing the order of the Trial Court contends that the defendant during the pendency of the suit has encroached the suit property and the amendment sought to be made are to include the relief of possession and necessary averments to bring on record the subsequent events that have taken place during the pendency of the suit. He further contends that the Trial Court has not appreciated the relevant factual matrix in the proper perspective and erred in rejecting the

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NC: 2024:KHC-D:16285 WP No. 100696 of 2023

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application for amendment. Hence, he seeks for allowing of the writ petition.

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Per contra, learned counsel for the

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respondent/defendant vehemently opposes the writ petition and contends that the amendment changes the nature of the suit, and that the Trial Court has rightly appreciated the matter in the proper prospective manner and rejected the application of the plaintiff which ought not to be interfered with by this Court in the present writ petition.

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The submissions of both the learned counsels have been considered and material on record has been perused.

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The relevant factual matrix insofar as the suit for injunction filed by the plaintiff and its contest by the defendant are the matter on record.

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It is forthcoming that the plaintiff, vide I.A No.VIII for amendment, has sought for the relief of possession as also for including averments that the defendant during the pendency of the suit has put up

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construction in the suit property. The Trial Court, considering the said application, has recorded a finding that the plaintiff has not mentioned the date on which the construction took place and has merely mentioned the same as recent developments. Further, the Trial Court has held that the plaintiff had filed I.A No.V for amendment of the plaint to include the relief of mandatory injunction and that the filing of I.A No.V would disclose that the plaintiff had the knowledge regarding possession of the property, but has not claimed the possession and it shows that he is not diligent.

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It is forthcoming that it is the assertion of the

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plaintiff that the defendant has encroached the property of the plaintiff. It is the further assertion that during the pendency of the suit, the defendant by allegedly encroaching upon the suit property has put up construction. Hence, I.A No.VIII has been filed to incorporate necessary averments as also claiming necessary reliefs with regard to the said subsequent events.

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The refusal of the amendment would lead to multiplicity of proceedings. Favorably considering I.A No.VIII would entail all questions that arise for consideration between the parties would be adjudicated in the suit filed by the plaintiff. The Trial Court has erroneously not considered this aspect of the matter. Hence, the order of the Trial Court is liable to be interfered with.

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No hardship will be caused to the defendant as a defendant is entitled to an adequate opportunity to file additional written statement as also to contest the assertions made by the plaintiff during the course of trial.

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In view of the aforementioned, it is necessary that I.A No.VIII filed by the plaintiff be favorably considered.

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In view of the aforementioned, the following:

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ORDER

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a) The writ petition is allowed . b) The order dated 04.01.2023 passed on I.A

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No.VIII under Order VI Rule 17 R/w Section

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7 - NC: 2024:KHC-D:16285 WP No. 100696 of 2023

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151 of the Code of Civil Procedure, 1908, in

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O.S No.1026/2017 by the VI Additonal Civil

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Judge and JMFC, Belagavi is set aside.

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c) I.A No.VIII filed by the plaintiff in O.S

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No.1026/2017 on the file of VI Additonal Civil Judge and JMFC, Belagavi is allowed.

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d) The plaintiff shall carry out the amendment and file the amended plaint on the next date of hearing of the suit i.e., 12.12.2024. Consequent to the same, the Trial Court shall conduct further proceedings in the suit in accordance with law.

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e) All contentions of the parties are left open.

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Sd/(C.M. POONACHA) JUDGE

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PMP CT-ASC List No.: 1 Sl No.: 52

Shri Jagannath Revappa Kale v. Smt. Jayashree W/O Jagannath Sutar

Case brief

What is this about?

What did the court decide?

Shri Jagannath Revappa Kale v. Smt. Jayashree W/O Jagannath Sutar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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