Allowed

B M Munivenkatappa Since Dead Rep. by His Lrs v. Munivenkatappa Since Dead by Lrs

Karnataka HC19 Mar 2024WP/18021/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the rejection of an application to amend the plaint under Order VI Rule 17 of CPC to correct a clerical error regarding the suit property's eastern boundary. The Court set aside the impugned order and permitted the amendment.

What did the court decide?

The impugned order dismissing the amendment application (I.A.No.10) dated 17.01.2018 is set aside and the application under Order VI Rule 17 CPC is allowed.

B M Munivenkatappa Since Dead Rep. by His Lrs Vs… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:11208 WP No. 18021 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 18021 OF 2018 (GM-CPC)

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BETWEEN:

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B.M. MUNIVENKATAPPA, SINCE DEAD REP. BY HIS LRS.

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1(A). SMT. AMARAVATHI, W/O K.V. KRISHNAPPA. D/O LATE. B.M. MUNIVENKATAPPA, AGED ABOUT 55 YEARS. R/O KESARAGERE VILLAGE, SUGGANAHALLI POST, MASTHI HOBLI, MALUR TALUK.

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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1(B). SRI. B.M.SHANKARE GOWDA. S/O LATE. B.M.MUNIVENKATAPPA. AGED ABOUT 52 YEARS.

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1(C). SRI. M. PRAKASH. S/O LATE.B.M.MUNIVENKATAPPA. AGED ABOUT 50 YEARS.

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1(D). Sri. B.M. SURENDRA BABU. S/O. LATE. B.M.MUNIVENKATAPPA. AGED ABOUT 48 YEARS.

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1(E). SRI. B.M. SATHISH. S/O LATE. B.M.MUNIVENKATAPPA. AGED ABOUT 46 YEARS.

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2 - NC: 2024:KHC:11208 WP No. 18021 of 2018

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NO:1(B) TO 1(E) ARE RESIDENTS OF BYALAHALLI VILLAGE, KAMADHENAHALLI POST, HOLUR HOBLI, KOLAR TALUK.

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…PETITIONERS

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(BY SRI. G.A. GOPI, ADVOCATE)

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AND:

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MUNIVENKATAPPA, SINCE DEAD BY LRS.

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1(A). SMT. BYCHAMMA, W/O. LATE MUNIVENKATAPPA, AGED ABOUT 65 YEARS.

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1(B). SMT. PARVATHAMMA, D/O. LATE MUNIVENKATAPPA, W/O. ESHWARAPPA, AGED ABOUT 55 YEARS, R/O. YALAVARA VILLAGE, KAMADHENAHALLI POST, KOLAR TALUK.

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1(C). JANAKAMMA,

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W/O. LATE CHANDRASHEKAR, DAUGHTER IN LAW OF LATE MUNIVENKATAPPA, AGED ABOUT 52 YEARS.

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1(D). SOMASHEKAR, S/O. LATE MUNIVENKATAPPA, AGED ABOUT 50 YEARS.

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1(E). SMT. JAYAMMA, D/O. LATE MUNIVENKATAPPA, W/O. NARAYANASWAMY,

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3 - NC: 2024:KHC:11208 WP No. 18021 of 2018

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AGED ABOUT 50 YEARS, R/O. YALAVARA VILLAGE, KAMADHENAHALLI POST, KOLAR TALUK.

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1(F). JAGANATH, S/O. LATE MUNIVENKATAPPA, AGED ABOUT 45 YEARS.

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1(G). SMT. SAROJA, D/O. LATE MUNIVENKATAPPA, AGED ABOUT 43 YEARS.

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1(H). SMT. VENKATARATHNAMMA, D/O. LATE MUNIVENKATAPPA, W/O. VENKATESH, AGED ABOUT 38 YEARS, R/O. SHESHAPURA VILLAGE, MUDIYANUR POST, SRINIVASPUR TALUK.

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1(I). SMT. DRAKSHAYINI, D/O. LATE MUNIVENKATAPPA, W/O. RAVINDRA BABU, AGED ABOUT 35 YEARS, ADVOCATE, R/O. 8TH CROSS, JAYANAGAR, KOLAR CITY.

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1(J). HARISH, S/O. LATE MUNIVENKATAPPA, AGED ABOUT 32 YEARS,

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RESPONDENTS NO. 1(A), (C), (D), (F), (G) AND (J) ARE RESIDENTS OF : BYALAHALLI VILLAGE,

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4 - NC: 2024:KHC:11208 WP No. 18021 of 2018

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HOLUR HOBLI, KOLAR TALUK.

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…RESPONDENTS

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(BY SRI. T.A. KARUMBAIAH, ADVOCATE FOR R1(A TO F, H TO J); SRI. G.C. HANUMANTH, ADVOCATE FOR R1(G) BEFORE TRIAL COURT; SRI. UDHAYA KUMAR, ADVOCATE FOR R1(G))

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO O.S.NO.105/2012 FILED BEFORE LEARNED I ADDITIONAL CIVIL JUDGE AND JMFC KOLAR AND ETC.

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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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The petitioner (since deceased), who was the plaintiff in O.S.No.105/2012 on the file of the I Additional Civil Judge and JMFC, Kolar has filed this writ petition challenging an order dated 17.01.2018 by which, an application (I.A.No.10) filed by him under Order VI Rule 17 of CPC was rejected.

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The petitioner (since deceased) filed O.S.No.105/2012 for declaration of title and for perpetual injunction in respect of a property bearing Old Sy.No.5/1 and New Sy.No.5/6 measuring 3 acres. The said suit was

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5 - NC: 2024:KHC:11208 WP No. 18021 of 2018

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contested by the defendant. In the written statement filed, the defendant claimed that the eastern boundary of the land bearing Sy.No.5/6 was not Annihalli Gadi but was Annihalli Road.

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The suit was set down for recording the evidence. The plaintiff was examined as PW.1 and when the suit was posted for cross-examination of PW.1, he filed an application under Order VI Rule 17 of CPC to amend the plaint to rectify the eastern boundary of the suit property as 'Annihalli Road' instead of 'Annihalli Gadi'. This application was contested by the defendant, who claimed that the application was belated and that the plaintiff was not diligent as he did not notice the contentions urged in the written statement and did not take effective steps.

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The Trial Court after considering the contentions urged on the application for amendment, rejected the application on the following grounds:-

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(i) that the written statement was filed and issues were framed and at the stage of cross-

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6 - NC: 2024:KHC:11208 WP No. 18021 of 2018

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examination of PW.1, an application is filed belatedly to amend the boundary of the suit schedule property.

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(ii) that the plaintiff did not show due diligence to amend the plaint immediately after written statement was filed.

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Being aggrieved by the impugned order dated 17.01.2018 passed on I.A.No.10 in O.S.No.105/2012, plaintiff has filed this writ petition.

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Learned counsel for the plaintiff submits that

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the eastern boundary of the suit property was mistakenly shown as Annihalli Gadi instead of Annihalli Road. He submits that this mistake was identified even before PW.1 was cross-examined and therefore, it was a bonafide mistake which had to be amended. He further contends that the defendant also admits that the property, which he claimed is the property claimed by the plaintiff and that it

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is bound on the Eastern side by Annihalli Road. Therefore, as the boundaries mentioned on three sides of

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7 - NC: 2024:KHC:11208 WP No. 18021 of 2018

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the property are not disputed, no prejudice would be caused to the defendant if the eastern boundary is permitted to be corrected. He further contended that the defendant had filed O.S.No.367/1999 where he had obtained a decree in respect of the property bound on the eastern side by Annihalli road and the attempt made by the plaintiff to be impleaded in O.S.No.367/1999 was turned down and therefore, the plaintiff is advised to file the present suit for declaration.

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7. Learned counsel for the respondent/defendant

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on the other hand, contended that the defendant had specifically contended in the written statement that the boundaries mentioned in the suit schedule was incorrect inasmuch as the suit property was not bound on the eastern side by Annihalli Gadi but was bound by Annihalli Road. Despite this, the plaintiff did not take any steps to amend the suit in time, but waited for the case to proceed till the stage of cross-examination of PW1. He submits that since the plaintiff was not diligent, no indulgence

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8 - NC: 2024:KHC:11208 WP No. 18021 of 2018

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should be shown and the trial Court has rightly rejected the application.

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The plaintiff and the defendant are sparring over the land bearing Sy.No.5/1 which is bound on the East by Annihalli Road. This land was claimed by the defendant who initiated revenue proceedings for bifurcation and the property claimed by the defendants was bifurcated as 5/6 bound on East by Annihalli Road. Therefore, the plaintiff and the defendant are in agreement to the fact that the suit property is bound on the eastern side by Annihalli Road and not Annihalli Gadi. As rightly contended by the learned counsel for the defendant, the plaintiff ought to have been careful, while drafting the plaint and must have shown the correct boundaries. Be that as it may, since the plaintiff has realized the mistake at the earliest, i.e., before PW.1 was cross-examined, the Trial Court must have given an opportunity to the plaintiff to amend the suit schedule property. This did not in any way prejudice the case of

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9 - NC: 2024:KHC:11208 WP No. 18021 of 2018

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the defendant nor did it change the nature of the suit or the cause of action.

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Consequently this petition is allowed . The

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impugned order dated 17.01.2018 passed by the Trial Court is set aside and the application filed by the plaintiff is allowed and the eastern boundary of the suit schedule property is permitted to be amended as 'Annihalli Road' instead of 'Annihalli Gadi'. The defendant is at liberty to file additional written statement. Since the suit is filed in the year 2012, the Trial Court is requested to dispose off the suit as early as possible, which at any rate shall not be more than one year from the date of receipt of a copy of this order.

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Sd/JUDGE

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PMR - para 1 to 4 NG - para 5 to till end List No.: 1 Sl No.: 14 CT:SNN

B M Munivenkatappa Since Dead Rep. by His Lrs v. Munivenkatappa Since Dead by Lrs

Case brief

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B M Munivenkatappa Since Dead Rep. by His Lrs v. Munivenkatappa Since Dead by Lrs

Case brief

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