Smt. Aruna Kumari Pinnaka Vs Sri. R. Ashok Kumar

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1 - NC: 2025:KHC:9782 RFA No. 1541 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF MARCH, 2025 BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1541 OF 2020 (INJ)

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BETWEEN:

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SMT. ARUNA KUMARI PINNAKA W/O VENKATA KRISHNA PINNAKA AGED ABOUT 54 YEARS, R/AT NO.52, 4^TH CROSS, DOMLUR, BENGALURU-560071 REP. BY HER GPA HOLDER VENKATA KRISHNA PINNAKA (HUSBAND OF APPELLANT) AGED ABOUT 56 YEARS, S/O SHESHAIAH, R/AT NO.52, 4^TH CROSS, DOMLUR, BENGALURU-560 071.

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…APPELLANT

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(BY SRI.DINESH RAO.N., ADVOCATE AND SRI.CHOWDA REDDY.C., ADVOCATE)

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AND:

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Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA

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SRI.SYED HANNAN S/O SYED KARIM, AGED ABOUT 75 YEARS, R/AT NO.22, BHARATHINAGAR, B STREET, THIMMAIAH ROAD CROSS, SHIVAJINAGAR, BANGALORE-560 001.

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(DELETED AS PER ORDER DATED 28.10.2013)

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SRI.R.ASHOK KUMAR S/O LATE M.RANGANATHAN, AGED 48 YEARS, R/AT NO.374, OLD POOR HOUSE ROAD,

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NC: 2025:KHC:9782 RFA No. 1541 of 2020

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SHIVAJINAGAR, BANGALORE-560 051.

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…RESPONDENT

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(BY SRI.V.ANAND., ADVOCATE FOR R2; R1 IS DELETED AS PER CAUSE TITLE)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE R/W ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 11.04.2019 PASSED IN O.S.NO.9009/2012 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL JUDGMENT

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This appeal filed by the appellant/plaintiff in O.S.No.9009/2012 is directed against impugned judgment

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and decree dated 11.04.2019 passed by the LXIII Additional City Civil and Sessions Judge (CCH.No.44) at Bengaluru (for short, ‘Trial Court’) whereby the said suit filed by the appellant/plaintiff against the respondents/defendants for permanent injunction and other reliefs in relation to the suit schedule immovable property was dismissed by the Trial Court.

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Heard learned counsel for the appellant/plaintiff

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and learned counsel for respondent No.2. The respondent No.1/defendant No.1 was deleted from array of parties before the Trial Court itself and as such, he is not made party in the present appeal also.

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A perusal of the material on record will indicate that the appellant/plaintiff instituted the aforesaid suit against respondent No.2/defendant No.2 for permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit was contested by respondent No.2/defendant No.2, who filed his written statement pursuant to which, the Trial Court framed the following issues:

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“1. Does the plaintiff prove that she was in peaceful possession and enjoyment of the suit schedule property as on the date of suit?”

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2. Does the plaintiff prove that there was interference by the defendants to her

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peaceful possession and enjoyment of the suit schedule property?

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3. Does the plaintiff prove that she is entitled for the relief of permanent injunction against the defendants?

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4. What order, or decree?”

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On behalf of the appellant/plaintiff, her

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husband-GPA holder examined himself as PW1 and documentary evidence at Ex.P1 to Ex.P7 were marked. The second defendant examined himself as DW1 and documentary evidence at Ex.D1 to Ex.D17 are marked. However, appellant/plaintiff did not cross-examined DW1 and the same was taken as Nil.

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After hearing both the sides, the Trial Court proceeded to pass the impugned judgment and decree dismissing the suit filed by the appellant/plaintiff, who is before this Court by way of the present appeal.

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In this context, it is pertinent to note that prior

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to impugned judgment and decree dismissing the suit on

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11.04.2019, the appellant/plaintiff had filed an application I.A.No.6 under Order 6 Rule 17 of CPC seeking amendment of the plaint averments as well as prayer column by seeking the reliefs of declaration and recovery of possession inter alia contending that during the pendency of the suit, appellant/plaintiff was illegally and high handedly dispossessed from suit schedule property by respondent No.2/defendant No.2. The said contentions urged by the appellant/plaintiff as well as application I.A.No.6 having been opposed by the respondent No.2/defendant No.2, the Trial Court passed an order dated 13.03.2019 dismissing I.A.No.6. The legality, validity and correctness of the aforesaid interlocutory order dismissing I.A.No.6 have also been assailed by the appellant in the present appeal.

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Heard. The following points would arise for

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consideration in the present appeal:

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1) Whether the Trial Court was justified in rejecting I.A.No.6 vide order dated 13.03.2019 filed by the appellant/plaintiff

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under Order 6 Rule 17 of CPC for amendment of the plaint?

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2) Whether the impugned judgment and decree passed by the Trial Court warrants interference in the present appeal?

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A perusal of the material on record including

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the impugned judgment and decree as well as the impugned order dated 13.03.2019 will indicate that in the first instance, the appellant/plaintiff filed a suit for bare/permanent injunction simpliciter inter alia contending that she was in lawful and peaceful possession and enjoyment of the suit schedule property. During the pendency of the suit, on 10.07.2017, the appellant/plaintiff filed I.A.No.6 seeking to incorporate the reliefs of declaration and recovery of possession along with corresponding pleadings by inter alia contending that during the pendency of suit, the respondents/defendants had illegally and high handedly dispossessed the plaintiff from suit schedule property. The said application was dismissed by the Trial Court vide impugned order dated

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13.03.2019 in which the Trial Court proceeded on the basis that conversion of a suit for bear junction simpliciter to one for declaration and recovery of possession was impermissible in law since it would change the nature and character of the suit and its cause of action. In my considered opinion, the said finding passed by the trial Court rejecting I.A.No.6 is contrary to the principles enunciated by the Hon'ble Apex Court in the case of SAMPATH KUMAR VS. AYYAKANNU AND ANOTHER¹ and followed in L.C.HANUMANTHAPPA (SINCE DEAD)

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REPRESENTED BY HIS LEGAL REPRESENTATIVES VS. H.B.SHIVAKUMAR² as well as the principles laid by the

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Hon'ble Apex Court in the case of LIFE INSURANCE

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CORPORATION OF INDIA VS. SANJEEV BUILDERS PRIVATE LIMITED AND ANOTHER³ . As held by the Hon’ble Apex Court in the aforesaid judgments and in various judgments of this Court, rather than driving

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1 AIR 2002 SC 3369

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2 AIR 2015 SC 3364

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3 AIR 2022 SC 4256

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appellant/plaintiff to file a separate suit for declaration and recovery of possession, it would be just and proper to permit amendment, subject to the condition that the amendment would not relate back to the date of the suit but would be considered/reckoned from date of filing of the amendment application by leaving open the question limitation to be decided at the time of final disposal of the suit. It is also pertinent to note that by way of the proposed amendment, the appellant/plaintiff merely sought to incorporate the additional pleadings and prayer relating to subsequent events that had transpired during the pendency of the suit which obviously could not have been pleaded at the time of institution of the suit and on this ground also, the impugned order dated 13.03.2019 rejecting I.A.No.6 deserves to be set aside. I am therefore of the view that the impugned order dated 13.03.2019 passed by the Trial Court rejecting I.A.No.6, filed by appellant/plaintiff under Order 6 Rule 17 of CPC deserves to be set aside and the said application deserves to be allowed. Accordingly, point No.1 is answered in

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favour of the appellant/plaintiff by setting aside the impugned order dated 13.03.2019 passed on I.A.No.6 and consequently, I.A.No.6 is hereby allowed.

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The next question that arises for consideration is that the procedure to be adopted for the purpose of disposal of the present appeal pursuant to allowing I.A.No.6 filed by appellant/plaintiff. As stated supra, the appellant/plaintiff did not cross-examine DW1 and having regard to the nature of controversy involved between the parties, providing an opportunity to the appellant/plaintiff to cross-examine DW1 would be relevant and material for the purpose of adjudication of the issues in controversy between the parties. In addition thereto, upon allowing I.A.No.6 for amendment, an opportunity would have to be granted in favour of the respondent No.2/defendant No.2 to file additional written statement to the amended plaint and contest the suit on all aspects of the matter. Under these circumstances, I deem it just and appropriate to exercise the powers under Section 107 read with Order 41

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Rule 23A and Order 41 Rule 33 of CPC and set aside the impugned judgment and decree in appeal and remit the matter back for re-consideration afresh in accordance with law. Point No.2 is answered accordingly by setting aside the impugned judgment and decree passed by the Trial Court.

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In the result, the following:

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ORDER

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a) Appeal is hereby allowed.

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b) Impugned judgment and decree dated 11.04.2019 in O.S.No.9009/2012 passed by the LXIII Additional City Civil and Sessions Judge (CCH.No.44) at Bengaluru is hereby set aside. So also, impugned order dated 13.03.2019 passed on I.A.No.6 by the Trial Court is hereby set aside.

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c) Consequently, I.A.No.6 filed by the

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appellant/plaintiff under Order 6 Rule 17 of CPC

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is hereby allowed, subject to the condition that the proposed amendment shall not relate back to the date of the suit, but shall be reckoned/considered from the date of amendment application I.A.No.6 which was filed on 10.07.2017 and the question of limitation is kept open, to be decided by the Trial Court.

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d) The matter is remitted back to the Trial Court for re-consideration afresh in accordance with law on all aspects of the matter.

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e) Liberty is reserved in favour of the respondent No.2/defendant No.2 to file additional written statement to the amended plaint.

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f) Liberty is also reserved in favour of the appellant/plaintiff to cross-examine DW1 and also adduce such further oral and documentary evidence in support of her claim.

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g) Liberty is also reserved for respondent No.2/defendant No.2 to adduce additional oral documentary evidence and also cross-examine the PW1 and three witnesses examined on behalf of the plaintiff.

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