Allowed

Smt Lakshmidevamma v. President Milk Producers Co. Operative Society Ltd.

Karnataka HC22 Feb 2024WP/13517/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash an impugned order rejecting an amendment application. The trial court had erred in refusing to allow rectification of a writ petition under Article 227.

What did the court decide?

Impugned order dated 01.06.2021 quashed; application under Order 6 Rule 17 CPC allowed; plaintiff permitted to amend plaint.

Smt Lakshmidevamma Vs President Milk Producers Co… — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:7473 WP No. 13517 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA WRIT PETITION NO. 13517 OF 2021 (GM-CPC)

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BETWEEN:

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SMT. LAKSHMIDEVAMMA, W/O. LATE NANJAPPA, AGED ABOUT 69 YEARS R/O CHENNAMANAHALLI VILLAGE, KAILANCHA HOBLI, RAMNAGAR TALUK AND DISTRICT - 562 159.

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…PETITIONER

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(BY SRI. SUMANTH NAIK, ADVOCATE FOR SRI. PARAMESHWAR N. HEGDE, ADVOCATE)

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AND:

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PRESIDENT, MILK PRODUCERS CO - OPERATIVE SOCIETY (LTD), Digitally signed by PAVITHRA N CHENNAMANAHALLI VILLAGE, KAILANCHA HOBLI, Location: High Court of Karnataka RAMNAGAR TALUK AND DISTRICT - 562 159.

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SECRETARY, MILK PRODUCERS CO-OPERATIVE SOCIETY (LTD), CHENNAMANAHALLI VILLAGE, KAILANCHA HOBLI, RAMANAGAR TALUK AND DISTRICT - 562 159.

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…RESPONDENTS (BY SRI. H. JAYANTH, ADVOCATE FOR R1 AND R2)

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NC: 2024:KHC:7473 WP No. 13517 of 2021

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD. 01.06.2021 PASSED BY THE LEARNED ADDL. SENIOR CIVIL JUDGE AND JMFC, RAMANAGAR ON IA FILED UNDER ORDER VI RULE 17 OF CPC IN O.S.NO.08/2017 AS PER ANNX-A AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING B-GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The plaintiff in O.S.No.08/2017 on the file of the learned Additional Senior Civil Judge and JMFC, Ramanagar, is seeking grant of writ of certiorari to quash the order dated 01.06.2021 dismissing the application filed under Order 6 Rule 17 r/w Section 151 of CPC and rejecting the prayer of the petitioner to amend the plaint.

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Heard Sri.Sumanth Naik, learned counsel for the petitioner and Sri.H.Jayanth, learned counsel for the respondents. Perused the materials on record.

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Learned counsel for the petitioner contended that the petitioner as plaintiff filed the suit O.S.No.08/2017 seeking declaration and for permanent injunction in respect of Sy.No.1/1A, measuring 1 acre 17 guntas, situated at

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NC: 2024:KHC:7473 WP No. 13517 of 2021

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Chennamanahalli Village, Kailancha Hobli, Ramanagar Taluk and District.

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In the body of plaint, the plaintiff has categorically stated that 'B' schedule property measuring 2 guntas is a part of 'A' schedule property. The defendants have illegally encroached over the same, constructed a building, and therefore, the plaintiff is entitled for possession of the same. Accordingly, 'B' schedule is described in the plaint as the encroached portion of 'A' schedule property. But however, by inadvertence the prayer for possession of the encroached portion i.e. 'B' schedule was not prayed in the plaint. Moreover, while describing the Western boundary of 'A' schedule there was a typographical error which was required to be amended. Therefore, the application was filed under Order 6 Rule 17 of CPC. The trial Court rejected the said application without any valid reasons. Therefore, the petitioner is before this Court.

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Learned counsel submitted that even though there

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are specific averments made in the plaint regarding the encroachment of two guntas of land fully described in 'B' schedule appended to the plaint, the trial Court proceeded to

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4 - NC: 2024:KHC:7473 WP No. 13517 of 2021

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observe in the impugned order that the plaintiff has contended that he is in possession of the entire 'A' schedule property and now seeks to amend the plaint to contend that the defendants have encroached the property which was never pleaded in the plaint and therefore, he is not entitled to amend the plaint. The said observation made by the trial Court is erroneous and hence, prays for allowing the petition.

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Per contra, learned counsel for the respondents opposing the petition submitted that plaintiff wants to amend the plaint to change the description of the property including the boundary. He wants to seek possession of the property after lapse of several years. Under such circumstances, the trial Court has rightly rejected the application. There are no merits in the contentions raised by the petitioner. Hence, he prays for dismissal of the petition.

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The admitted facts of the case are that the plaintiff filed the suit O.S.No.08/2017 for declaration of his title in respect of schedule 'A' property and for permanent injunction. The copy of the plaint produced along with the petition discloses that schedule 'B' appended to the plaint describes the

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NC: 2024:KHC:7473 WP No. 13517 of 2021

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land measuring 2 guntas, out of 1 acre 17 guntas in Sy.No.1/1A, which is morefully described in schedule 'A'. It is the contention of the plaintiff in the plaint that she is the owner of 'A' schedule property i.e. 1 acre 17 guntas of land, out of which, the defendants have encroached 2 guntas of land which is morefully described in 'B' schedule. In paragraph No.4 of the plaint, the plaintiff has made it very clear that 'B' schedule property was encroached by the defendants, made construction over the same and therefore the plaintiff is entitled for possession of the same. However, in the prayer column there is no prayer for possession of the property which is apparently a mistake committed while drafting the plaint.

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Apart from the prayer for possession of the property, the plaintiff wants to amend the Western boundary of the property in schedule 'A' stating that on the Western boundary Khaneshumari No.74, New No.5, the land belonging to Venkatalakshmamma. It is for the plaintiff to prove the description of the property along with its boundaries to seek the relief of declaration, possession and also for perpetual injunction. The proposed amendment do not change the nature of suit nor it will take away any right created in favour of the

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6 - NC: 2024:KHC:7473 WP No. 13517 of 2021

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defendants. When there are sufficient pleadings in the plaint to claim possession of 'B' schedule property, I do not find any reason to reject the claim of the plaintiff in that regard. It is also to be noticed that the suit is still at the stage of plaintiff's evidence and no prejudice will be caused to the defendants if the proposed amendment is allowed.

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I have gone through the impugned order passed by the trial Court. The trial Court has proceeded to observe that the plaintiff is not clear as to in respect of which suit property she is claiming the relief. Since it is stated that the defendants have already constructed a building over 'B' schedule property, the trial Court held that the plaintiff has not made out any prima facie case and balance of convenience does not lie in her favour as she will not suffer irreparable loss, as the building is already constructed. It appears that the trial Court was under the impression that it is considering an application for grant of temporary injunction, but not the application for amendment of the pleading. The reasons assigned by the trial Court suffers from perversity and illegality. Therefore, I am of the opinion that the same is required to be quashed.

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NC: 2024:KHC:7473 WP No. 13517 of 2021

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Accordingly, I proceed to pass the following:

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ORDER

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(i) Writ petition is allowed .

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(ii) The order dated 01.06.2021 passed in O.S.No.

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08/2017 by learned Additional Senior Civil Judge and JMFC, Ramanagar, in is hereby quashed.

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(iii) Consequently, IA filed under Order 6 Rule 17 r/w Section 151 of CPC is allowed. The plaintiff is permitted to carry out the amendment.

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Sd/JUDGE

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AP CT:TSM List No.: 1 Sl No.: 8

Smt Lakshmidevamma v. President Milk Producers Co. Operative Society Ltd.

Case brief

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Smt Lakshmidevamma v. President Milk Producers Co. Operative Society Ltd.

Case brief

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