Dismissed

Arvind Kumar Prakash v. the Commissioner

Karnataka HC25 Jun 2024WP/30399/2017

Case brief

AI extract

What is this about?

Plaintiffs challenged dismissal of their application to amend the plaint in a pending injunction suit concerning storm water drain obstruction. The High Court found no due diligence explanation for the two-year delay after the 2015 development plan, and that allowing the amendment at this late stage of trial would put the clock back ten years. Petition dismissed.

What the court decided

AI extract

Arvind Kumar Prakash Vs the Commissioner — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:23375 WP No. 30399 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 30399 OF 2017 (GM-CPC)

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BETWEEN:

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ARVIND KUMAR PRAKASH, S/O. LATE MANGILAL, AGED ABOUT 51 YEARS, R/A NO.20, 3RD CROSS, GANDHINAGAR, BENGALURU - 560 009.

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M/S. MANPHO CONVENTION CENTRE, AT SY.NO.91/4, 102/3 & 102/4, VEERANAPALYA, NAGAVARA RING ROAD, BENGALURU – 560 045.

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Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA

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REPRESENTED BY SRI. ARVIND KUMAR PAREKH, S/O LATE MANGILAL, AGED ABOUT 51 YEARS, R/A NO.20, 3RD CROSS, GANDHINAGAR, BENGALURU – 560 009.

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THE GPA HOLDER OF SMT. RASHMI PAREKH AND SRI. SANDEEP PAREKH; THE PARTNERS OF M/S MANPHO CONVENTION CENTRE.

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…PETITIONERS

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(BY SRI. RAVI H.K., ADVOCATE)

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AND:

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THE COMMISSIONER, BRUHAT BENGALURU MAHANAGARA PALIKE, N.R. CIRCLE, BENGALURU – 560 009.

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TAHSILDAR, K.G. ROAD, BENGALURU NORTH TALUK – 560 009. 3. M/S. KARLE INFRA TECH, MARIYANNAPALYA ROAD, VEERANNA PALYA, NAGAVARA, BENGALURU – 560 045. REPRESENTED BY ITS DIRECTOR, SUDARSHAN KARLE, S/O. SRI. L.T. KARLE, AGED ABOUT 63 YEARS, R/A NO.261, 4TH MAIN, BENGALURU – 560 086.

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LALITH KUMAR PAREKH, S/O. LATE MANGILAL, AGED ABOUT 61 YEARS, R/A NO.20, 3RD CROSS, GANDHINAGAR, BENGALURU – 560 009.

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M. RAJAGOPAL, S/O. PATEL MUNIVENKATAPPA, AGED ABOUT 65 YEARS, R/A. NAGAVARA VILLAGE, KASABA HOBLI, BENGALURU NORTH TALUK, BENGALURU – 560 045.

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K. K. SUNITHA, D/O. K. KEMPAIAH, AGED ABOUT 50 YEARS,

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R/A NO.733, NAGAVARA, PATEL MUNIVENKATAPPA LAYOUT, BENGALURU – 560 045.

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M/S. MANPHO EXPORTS, PRESENTLY AT SY.NO.90, VEERANAPALYA, NAGAVARA RING ROAD, BENGALURU – 560 045.

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REPRESENTED BY ONE OF ITS PARTNERS LALITH KUMAR PAREKH, S/O. LATE MANGILAL, AGED ABOUT 61 YEARS, R/A NO.20, 3RD CROSS, GANDHINAGAR, BENGALURU – 560 009.

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…RESPONDENTS

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(BY SMT. M.C. NAGASHREE FOR R1; SRI. T.P. MALIPATIL, AGA FOR R2; MS. ANAGHA JAYAPRAKASH, ADVOCATE FOR SRI. S.V. SRINIVAS, ADVOCATE FOR R3; SRI. VIGNESH E., ADVOCATE FOR R4 AND 7; SRI. MADHU J.N., ADVOCATE FOR R5 AND 6)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 15.06.2017 AT ANNEXURE-F IN O.S.NO.10233/2014 PASSED BY THE XX ADDL. CITY CIVIL COURT AND SESSIONS JUDGE, BENGALURU DISMISSING THE APPLICATION (I.A.NO.8) UNDER ORDER 6 RULE 17, CPC READ WITH SECTION 151 OF CPC FILED BY THE PETITIONER NO.1 BY ISSUING A WRIT OF CERTIORARI AND ETC.

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THIS PETITION, COMING ON FOR PRILIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Aggrieved by the order passed in I.A.No.8 in

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O.S.No.10233/2014 on the file of the XX Addl. City Civil Court and Sessions Judge, Bengaluru, the present Writ Petition is filed by the plaintiffs.

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The plaintiffs/petitioners herein have filed the suit seeking relief of permanent injunction restraining the defendant No.1 i.e., the BBMP or its officials from carrying out the digging work on the suit schedule properties and in any manner interfering with the plaintiff’s peaceful possession and enjoyment of the schedule properties and also a mandatory injunction directing defendant No.1/officials to demolish the illegal structures put up by defendant No.3 on the survey No.72 of Nagavara Village, Kasaba Hobli, Bangalore North Taluk obstructing the flow of rain water to the storm water drain, thereby making a way for the free flow of the rain water with the storm water drain. Initially, an application was filed seeking interim injunction and the Trial Court had dismissed the said application and the matter was posted for trial. The suit is of the year 2014 and in the year 2017, the I.A. came to be filed

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for amendment of the plaint. The amendment that is sought, is as follows,

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“ 1. Add “90, 91, 92, 95 and 96 etc.,” after Sy.No.72 at 4^th line of para 14.

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2. Add “Secondary” at 3^rd line of para 14 after the words “called as”.

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3. Add “Secondary” at 20^th line of para 20 after “SWD/” and before “Rajakaluve”.

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4. Add para 15a. After para 15 as “The City Development Plan of 2015 clearly discloses the fact that there is no drain or Rajakaluve in Sy.No.90, 91/4, 102/3, 102/4 belonging to the plaintiff nos.1, 2, 5 and 6. On the other hand the defendant no.3 has engulfed kharab land in Sy.No.91/3 wherein secondary Rajakaluve is running and the same has been filled with earth only after 14.08.2016. The Secondary Rajakaluve runs in Sy.No.91, 92, 96 through the property of the defendant No.3 and reaches primary Raja Kaluve which runs from West to East direction. The Moola Tippani along with survey and revenue records clearly disclose that originally survey No.91/3 at Nagavara Village was having total extent of 1 acre 05 guntas including 9 guntas of Kharab. Till today Kharab has been shown in Moola Tippani and clandestinely RTC was tampered in the year 1988-89 and kharab land has been removed

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from RTC without authority of law. Even though the google map images show the existence of Rajakaluve and its encroachment by the defendant No.3, defendant Nos.1 and 2 have not taken any action against the said encroachment and the defendant No.3.”

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5. Add “The so called survey sketch has been prepared without conducting any survey by issuing notices to the plaintiffs as required in law” at line 17 of the para 15 after the words google images. ”

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The affidavit filed in support of the I.A., it is stated that recently certain crucial documents such as Comprehensive Development Plan-2015, RTCs pertaining to Sy.Nos.90, 91, 92, 93, 94 and 95 of Nagavara Village and Moola Tippani pertaining to Sy.Nos.90, 91, 92, 95 and 96 of Nagavara Village were obtained by him. The said documents project the true picture of the state of affairs in Nagavara Village and are valuable evidence substantiating the case of the plaintiffs before this Court. The said documents show that there is no drain or Rajakaluve in Sy.Nos.90, 91/4, 102/3, 102/4 belonging to the plaintiff Nos.1, 2, 5 and 6. They have procured the documents recently and as such they have come up with the proposed amendment and the proposed amendment is necessary and

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crucial for the adjudication of the matter and also to serve the ends of justice.

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The respondent/defendant filed objections stating that

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the plaintiffs have filed the suit for mandatory and permanent injunction restraining defendant No.1 from carrying out any digging work or in any manner interfering in the suit schedule property belonging to the plaintiff. In the objections, it is stated that the Court had not granted any injunction. Thereafter, the issues are framed and the matter was posted for the evidence of the plaintiff. At that stage, this application is at the belated

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stage. It is stated that the original claim of the plaintiff was there is an obstruction created with the alleged illegal construction of the structure belonging to the defendant in Sy.No.72 of Nagavara Village, but the proposed amendment include more survey numbers and it is also not stated that how

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the proposed amendment is necessary for the effective adjudication of the matter. It is stated that the proposed amendment sought at para No.15(a) is clearly beyond the scope of the suit as instituted and also he has stated about encroachment of the karab land and in the suit for injunction,

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the said allegations cannot be determined. Including the

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several survey numbers is nothing but enlarging the scope of the dispute and as such the said amendment cannot be allowed.

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Learned counsel appearing for the petitioner submits that the amendment do not change the nature of the suit. It is submitted that the amendment sought is only explanatory in nature. Unless the said amendment is allowed, he cannot examine the defendants on those aspects on the survey numbers. Even if such an amendment is allowed, no prejudice would be caused to the defendants. It is submitted that the Trial Court while deciding the application has went more on hypertechnical approach instead of looking at the substantial interest of the parties. When these facts are on record and it will help the Trial Court to adjudicate the dispute involved in the case. The Trial Court ought to have allowed the application and permitted the petitioner to amend the plaint. He had relied on the judgment of this Court in case of Rajapura Homes Private Limited Vs. Y.R. Harish¹ . Basing on the judgment, learned counsel submits that as per the Order 6 Rule 17 of CPC every amendment as far as it is necessary for the purpose of 1 AIR Online 2020 KAR 854

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determining the real question of contravenes, subject to the applicable condition shall be allowed. For that, it is submitted that the pre-trial amendment must be construed liberally. It is also observed in the said judgment that undoubtedly, a belated and a malafide application cannot be permitted. However, in the light of the circumstances discussed cannot be reasonably held that the petitioner’s application for amendment is either belated or vitiated by malafides only because of the application for amendment is filed after the disposal of the appeal though issues were not settled as of the date of the application. He has also relied on the another judgment of this Court, in case of Anil Kumar Vs. Manohar Rao and others.² wherein this Court has allowed the Writ Petition seeking the amendment of plaint which was rejected by the Trial Court which reads thus:-

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“The proposed amendment does not constitute an additional new cause of action or raise a new case, but amounts to no more than adding to the facts already on record. The rule gives a wide discretion to the Court to allow amendment necessary for the purpose of determining the real matter in controversy between the parties. The trial Court has not examined as to whether the proposed

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2 W.P.201784/2019 dated 20.01.2020

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amendment sought is absolutely frivolous or raises a plausible plea. The reasoning of the Trial Court that the application is filed after commencement of trial suffers from serious perversity. Courts have wide power to allow amendment at any stage and inspite of liberal judicial trend in its interpretation, Trial Court adopting hyper technical approach has rejected the application, and the same warrants interference by this Court.

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In this background, the counsel for the petitioner would submit to this Court that the entire burden is on the plaintiff to establish that he has become the owner over the suit land and accordingly, he has led in evidence. The proposed amendment is only sought by way of abundant caution and he would submit to this Court that he has exhaustively led in oral evidence and if the amendment is allowed, no further evidence would be sought to be led in by the petitioner/plaintiff. If this Court would take note of this submission, then I am of the view that if the proposed amendment is allowed no prejudice would be caused to the respondents/defendants, since they are yet commence with their evidence. To rebut the contention of the petitioner the respondents are at liberty to lead rebuttal evidence. To negate the contention of petitioner insofar as the averments and the assertions at para 5 of the plaint as well as the averments made in the proposed amendment, if the amendment application is allowed, I am of the

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view that no prejudice would be caused to the respondents/defendants.”

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He has also relied on the judgment of the Hon’ble Apex

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Court in the case of Rajesh Kumar Aggarwal and Ors. Vs. K.K.

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Modi and Ors.³ He submits that the Court cannot enter into the correctness or the falsity of the case in amendment. Since it is settled law that the merits of the amendment sought to be incorporated are not to be adjudged at the stage of allowing prayer for amendment and accordingly, set aside the order of the High Court in rejecting the plea of the plaintiff. Basing on these judgments learned counsel submits that the Trial Court ought to have allowed the application.

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Learned counsel appearing for the respondent/

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defendant No.3 who is the contesting respondent submits that

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the proposed amendment would enlarge the scope of the suit. He sought a relief of permanent injunction and also a mandatory injunction and he submits that by virtue of this amendment he sought to include some more survey numbers which are not necessary for adjudication of the dispute that is

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3 AIR 2006 SC 1647

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before this Court. It is submitted that the suit is of the year 2014, no injunction was granted by the Court. In the year 2017, after the trial has commenced, this application is filed. Now the defendant’s evidence is going to be concluded. It is submitted that at this stage, the amendment cannot be allowed and the petitioners/plaintiffs cannot be permitted to introduce a new case. The Trial Court had rightly dismissed the application and no grounds are made out to interfere with the well considered order passed by the Trial Court.

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Having heard the learned counsel on either side, perused the entire material on record. The suit was filed in the year 2004. The relief sought by the petitioner in the said suit is permanent injunction against the BBMP and the Tahsildar and a mandatory injunction directing the BBMP and defendant No.3 who is a private party from obstructing the flow of rain water through the storm water drain. The Trial Court had not granted any injunction and when the trial has commenced in the year 2017, the present application came to be filed. In support of

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the application, it is stated that there are some documents of the year 2015, those are very much necessary for proper

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adjudication of the disputes between the parties. After the trial has commenced, the petitioner has filed an application under Order 6 Rule 17 of CPC. The first thing to be pleaded is that the said facts are not in his knowledge and as on the date of filing the plaint and in spite of due diligence, the facts could not be pleaded at an earliest point of time. In this case, according to him, development plan is of the year 2015. When that is of the year 2015, why has the plaintiff kept quite till 2017 to bring those facts on record and not sought for amendment before is not known. When a particular fact is existing as on 2015 and when he has kept quite for a period of two years no explanation is forthcoming for the delay. That apart the limited relief what he is seeking in the suit is against the official respondent/defendant Nos.1 and 2 is injunction and a mandatory injunction against defendant Nos.1 to 3 from obstructing the flow of rain water into the storm water drain. This Writ Petition is filed in the year 2017 and this Court has not granted any interim order and as such the trial has proceeded and the evidence of defendant has almost come to an end. There is no explanation forthcoming when they came to know about the said 2015 plan and what are the reasons for

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the delay. In addition to that the manner in which the plaintiff is pursuing the matter. The suit is of the year 2014, which is pending from the last 10 years. I.A. is filed in the year 2017 which came to be dismissed in 2017 and against that the present Writ Petition is filed. No interim order is granted by this Court and the Trial Court proceeded with the matter. Now any order to be passed by this Court in the Writ Petition virtually amounts to putting the clock back to 10 years, on that count also, it deserves to be dismissed. Now, at this stage, it is right for the judgment, this Court has not inclined to consider the application or otherwise also.

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ORDER

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i. Accordingly, the Writ Petition is dismissed .

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ii. All I.As., in the Writ Petition, shall stand closed.

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SD/JUDGE

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BN List No.: 1 Sl No.: 21

Arvind Kumar Prakash v. the Commissioner

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Arvind Kumar Prakash v. the Commissioner

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