Sri M Nagappa Vs Sri Y S Eshwara Setty

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 05.04.2019 PASSED ON I.A.NOS.11 AND 12 FILED UNDER ORDER VI RULE 17 OF CPC IN O.S.NO.53/2014, ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, PAVAGADA, VIDE ANNEXURE-H.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking the following reliefs:-

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i) quash the order dated 05.04.2019 passed on IA Nos.11 & 12 filed Under Order VI Rule 17 of CPC in O.S.No.53/2014, on the file of Senior Civil Judge & JMFC, Pavagada, vide Annexure-H, by issue of writ of certiorari.

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ii) issue any appropriate writ, order or direction as deemed fit in the circumstances of the case in the interest of justice.

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Learned counsel for the petitioners submits that the

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respondents/plaintiffs filed a suit for declaration and injunction. The petitioners/defendants filed detailed written statement denying the averments of the plaint. Issues were framed and parties have adduced the evidence and arguments were concluded. When the suit was posted for reply arguments, the respondents/plaintiffs filed I.A.Nos.XI and XII seeking amendment of the plaint. It is submitted that the proposed amendment clearly indicates that the respondents/plaintiffs intend to take different stand from the stand taken in the plaint. In one breathe, the respondents/plaintiffs claimed that they are in possession and enjoyment of the suit schedule property and now they are seeking to delete those words in the plaint and also seeking to change the suit schedule property by changing the extent, which in result, would change the scheme of the suit. It is submitted that in paragraph Nos.7 and 9 of the plaint, the respondents/plaintiffs intend to state with regard

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to the judicial proceedings, which were still within their knowledge when the suit came to be filed and without any explanation for the delay, the applications came to be filed and the Trial Court without appreciating the law on the point that no application for amendment can be allowed at the fag-end of the proceedings, allowed the applications filed for amendment. It is submitted that if the proposed amendment is allowed, the Trial Court is required to frame additional issues and required to re-conduct the trial afresh since the suit is of the year 2014. It is submitted that the proposed amendment would also take away the admissions made in the evidence. Hence, he seeks to allow the petition by setting aside the impugned order.

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Per contra, learned counsel for the respondents supports the impugned order of the Trial Court and submits that though the applications are filed belatedly, the affidavits accompanying the applications clearly explain the reasons as to why the amendment is necessary to decide the case. It is submitted that by proposed amendment, there would not be any change in the cause of action nor will it change the nature of suit. It is submitted that by inadvertence, some of the

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words have been crept in paragraph No.2 and portion of paragraph No.7 of the plaint, which is intended to be corrected for complete and correct adjudication of the dispute between the parties. It is submitted that in so far as the amendment sought to bring on record the judicial proceedings pending is concerned, even without amendment also the said fact can be taken note by the Trial Court while deciding the suit. Hence, no prejudice would be caused to other side, if such amendment is allowed. It is also submitted that the respondents/plaintiffs are seeking to amend the suit schedule by reducing the extent, as by inadvertence the property of plaintiff No.2 i.e., wife of plaintiff No.1 is also included in the suit schedule property and if the scope of the suit is reduced, no prejudice or harm will be caused to the petitioners/defendants. Hence, he seeks to dismiss the petition.

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I have considered the submissions of the learned counsel for the petitioners as well as the learned counsel for the respondents. I have meticulously perused the material placed on record.

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Respondents/plaintiffs filed O.S.No.53/2014 seeking relief of declaration that they are the lawful owners in possession and enjoyment of the suit schedule property and permanent injunction against the petitioners/defendants. The suit schedule property shown in the plaint is totally measuring, 19 acres 5 guntas including 2 acres of kharab land. The records indicate that the petitioners/defendants filed detailed written statement. Issues were framed and parties have adduced the evidence. The impugned order also indicates that the respondents/plaintiffs filed I.A.Nos.XI and XII under Order VI Rule 17 read with Section 151 of CPC seeking to amend the plaint at the stage of arguments. If the proposed amendment is perused, the respondents/plaintiffs are mainly seeking to amend paragraph No.2 of the plaint by deleting some words to indicate that they are not in possession and enjoyment of the particular property and also seeking to insert that a public road runs from Obalapura to Maridasanahalli and also Halla runs from Hillock to the tank which is in the north to south direction of the property. These amendments in the aforesaid paragraphs do not take away the admissions or would not change the nature of the suit as alleged by the learned counsel

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for the petitioners/defendants. These amendments are only clarificatory amendments which also indicate that those amendments are necessary as there is a typographical error as averred in paragraph No.3 of the affidavit of the respondents/plaintiffs.

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In so far as amendment with regard to the pendency of the proceedings and filing of an appeal is concerned, the Trial Court has rightly come to the conclusion that no prejudice would be caused to the other side as those are the judicial proceedings and the Trial Court can always take note of the same when the suit is decided on merits. The proposed amendment to exclude certain portion from the suit schedule property is based on the judgment and decree passed in O.S.No.114/2002. Therefore, in my considered view, the insertion or modification of the schedule to the plaint would not take away any of the admissions of the parties nor would it

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change the nature of the suit. There is no dispute that the applications are filed at the belated stage, however, the applications filed for amendment would not cause any prejudice to the other side. It is always open for the

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petitioners/defendants to file additional written statement, if so advised. In my considered view, the Trial Court taking note of the proposed amendment, has come to the conclusion that the proposed amendment, no doubt is filed belatedly, but it would neither change the nature of the suit nor the cause of action. In my considered view, the Trial Court has rightly recorded the aforesaid finding.

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