Sri. Nagaraja Naik Vs Sri. K.E. Rajappa

SMT. SUMITHRA BAI W/O NAGARAJA NAIK REPRESENTED BY HER GENERAL POWER OF ATTORNEY HOLER NAGARAJA NAIK S/O SEVYA NAIK (PETITIONER NO.1) BOTH ARE RESIDING AT MUDDINAKOPPA NO.LIG 72, 2^ND STAGE, HUDCO, KALLAHALLI VINOBHANAGAR SHIMOGA CITY - 577 204

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…PETITIONERS

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(BY SRI. G BALAKRISHNA SHASTRY., ADVOCATE)

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AND:

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SRI. K.E. RAJAPPA S/O LATE K.R. ESWARAPPA AGED ABOUT 52 YEARS, AGRICULTURIST R/O KOTEGANUR VILLAGE, KASABA HOBLI, SHIVAMOGGA TALUK SHIVAMOGGA DISTRICT 577 204

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…RESPONDENT

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NC: 2026:KHC:10736 WP No. 10187 of 2022

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HC-KAR

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(BY SRI. TILAK RAJ S V., ADVOCATE FOR SRI. H N BASAVARAJU., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT QUASHING THE ORDER DATED 11.02.2022 ON IA NO.7 IN O.S NO.432/2015 ON THE FILE OF THE IV ADDL. CIVIL JUDGE & JMFC, SHIVAMOGGA PRODUCED AT ANNEXURE-A AND IA NO.7 BE ALLOWED AS PRAYED FOR AND ETC

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL ORDER

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The present petition seeks to challenge an order dated 11.02.2022 in O.S.No.432/2015 passed by the IV Additional

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Civil Judge & JMFC, Shivamogga (hereinafter referred to as the “Impugned Order”]. By the Impugned Order, an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’) filed by the petitioners/defendants No.1 and 2 has been rejected.

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Learned counsel for the petitioners/defendant Nos.1 and 2 submits that on 04.02.2021, the respondent/plaintiff had filed an application under Order 7 Rule 14(3) of CPC

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NC: 2026:KHC:10736 WP No. 10187 of 2022

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HC-KAR

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along with additional documents which were subsequently

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exhibited as Ex.P1 to Ex.P8. He submits that these documents were in respect of phodi (extract of revenue records) and thus, the amendment was necessary. Reliance in this behalf is placed on the affidavit annexed with the application.

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2.1. Learned counsel for the petitioners/defendant No.1 and 2 further submits that the amendment was necessitated only on account of the application which was filed in February 2021 by the respondent / plaintiff. Thus,

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the learned Trial Court has erred in stating that the petitioners/defendants No.1 and 2 were not diligent in filing this application.

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Learned counsel for the respondent/plaintiff submits that the application was filed at a belated stage and since the trial had already commenced, the learned Trial Court has dismissed the application as being filed as being filed belatedly. Reliance in this behalf is placed on paragraph No.6 of the Impugned Order which reads as under:

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HC-KAR

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“6. Then the applicant/defendant has moved the present IA seeking permission to amendment of the written statement as stated in the IA. Wherein, the accompanying affidavit it is stated that, the proposed amendments are very much necessary for determination or adjudication of the case. But, nowhere in the annexed affidavit to IA No.VII as stated what prevented them to file this application in earlier stage of the suit, their IA is only the documents which will produced by the plaintiffs are not binding on the defendants and they cannot be considered in support of the case of the plaintiff Therefore, this Court is of the opinion that, whether the proposed documents are admitted or not is a purely question of trial. Therefore, this Court is of the opinion that, the proposed amendments are not necessary for determination of the issue since the question in dispute is only a possession. Hence, the amendment is not essential for the adjudication of the case. Moreover, if the amendment is carried out to the counter claim certainly it will change the nature of the counter claim as they are seeking a prayer that, documents are not binding on the defendants, with these observations, this Court proceed to pass the following

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ORDER

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I.A.No. VII filed by the applicants/defendants under Order 6 Rule 17 R/w sec. 151 of C.P.C., is hereby rejected.

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For further cross of PW. 1.

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It is hereby informed and directed to the defendants that, without taking any further adjournments they have to conduct cross-examination of PW.1.”

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[Emphasis Supplied]

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The record reflects that an application was filed on

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09.11.2021 by the petitioners/defendants No.1 and 2. In

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NC: 2026:KHC:10736 WP No. 10187 of 2022

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HC-KAR

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this application the petitioners sets out that some survey records have been manipulated by the respondent/plaintiff behind the back of the petitioners/defendant Nos.1 and 2 and that survey and settlement has been done in order to create these documents which is not in accordance with law. The application further sets out that this has been undertaken during the pendency of the suit. The relevant extract of the application and affidavit annexed thereto is as below:

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“Under Order 6 rule 17 read with section 151 of CPC, the applicants/defendants most respectfully submit as follows:

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That for the reasons stated in the accompanying memorandum of facts, the honourable court may be pleased to permit the defendant to amend their written statement as per the proposed amendment; and allow this application passing suitable orders in the ends of justice.

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Proposed amendment:

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1. After the existing paragraph 27, add-

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Para 28: The plaintiff has got concocted the survey records behind the back of the defendant with an intention to knock of the property in possession of the defendants. The alleged survey and settlement has been done behind the back of the defendants in order to create documents in support of the case of the plaintiff. The alleged survey settlement and Phodi work are not at all in accordance with law and has been done without following the procedure prescribed and without

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HC-KAR

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notice to the defendants and other parties and during the pendency of the legal proceedings and dispute regarding the properties. The said documents are not binding on the defendants and cannot be considered in support of the case of the plaintiff.

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2. Number the relief column as 29.

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Affidavit:

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1. Xx xxx xxx

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2. In the above case the plaintiff has got concocted the survey records behind our back with an intention to knock of the property in out possession. The alleged survey and settlement has been done behind our back in order to create documents in support of the case of the plaintiff. The alleged survey and settlement and Phodi work are not at all in accordance with law and have been done without following the procedure prescribed and without notice to us and other parties and during the pendency of the legal proceedings and dispute regarding the properties. The said documents are not binding on us and cannot be considered in support of the case of the plaintiff.

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3. The said documents have been produced to after the written statement has been filed in the above case. The proposed amendment is very essential for adjudication of all the matters involved in dispute. The proposed amendment to the written statement will not change the nature of the suit or the cause of action for the defence pleaded by the defendants.

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[Emphasis Supplied]

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It is however not disputed by the respondent/plaintiff that an application was filed by him on 04.02.2021 under Orde 7 Rule 14(3) of CPC and on that date, certain

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HC-KAR

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documents were executed by the respondent/plaintiff

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which included documents in respect of revenue extract of the suit schedule property were sought to be brought on record.

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Subsequently, the learned Trial Court on 04.02.2021, while allowing this application filed by the respondent / plaintiff, permitted these eight fresh documents Ex.P1 to 8 to come on record. The order dated 04.02.2021 is extracted below.

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“Case called out. PW-1 and his counsel Sri. JSS present and filed application I.A No.4 U/o 7 R-14 (3) r/w Sec. 151 of CPC along with additional List of documents. Counsel for def. submits no objection and same may be allowed. Hence, considering the same I.A.No.4 is hereby allowed. PW-1 further examined and got marked Ex-P1 to ExP8. Counsel for def. Prays time.

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For Cross of PW-1, Call on 22.02.2021.”

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[Emphasis Supplied]

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The petitioners have thereafter filed the application

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seeking amendment. A review of the application however shows that it does not set out that the reason for the amendment was the fresh documents filed by the

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NC: 2026:KHC:10736 WP No. 10187 of 2022

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HC-KAR

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respondent / plaintiff. Learned counsel for the petitioners has fairly conceded that reference of the order dated 04.02.2021, allowing these documents is not set out in the application filed by him under Order 6 Rule 17. However, this aspect has not been refuted and it is clearly evident from the order passed by the Trial Court on 11.02.2022.

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It is no longer res integra that Court should normally be liberal while adjudicating the amendment. However, when such amendment has been sought for after the trial has commenced, the proviso to Order 6 Rule 17 of CPC requires the applicant to show due diligence.

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In the facts of this case, however, the very reason for the amendment has been filing of additional documents on 04.02.2021. Thus, the Trial Court could not have given a finding as has been done, that the application was filed belatedly and that the documents could have been filed at

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an early stage.

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HC-KAR

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In view of the aforesaid circumstances, this Court

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proceeds to pass the following:

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ORDER

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(i) The petition is allowed .

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(ii) The order dated 11.02.2022 on I.A.No.7 in O.S.No.432/2015 passed by the IV Additional Civil Judge & JMFC, Shivamogga, is set aside.

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(iii) Consequently, the application filed by the petitioners/defendant Nos.1 and 2 is also allowed. The respondent / plaintiff is however at liberty to file an amended Replication / Rejoinder if required.

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(iv) By an order dated 27.05.2022, this Court has directed

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stay of further proceedings before the learned Trial Court. Since this matter has been pending for a while, now the learned counsel for the parties submit that they will not take unnecessary adjournments before the Trial Court. The parties are bound down by the statement made by their counsels before this Court.

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