Sri. S v Prakasha Vs Sri. S v Venkatesha

THIS W.P. FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.01.10.2021 ON IA NO.2 IN O.S.NO.26/2021 ON THE FILE OF HONBLE CIVIL JUDGE AND JMFC N.R.PURA VIDE ANNEXURE-E AND TO DISMISS THE IA NO,.2.

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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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NC: 2026:KHC:6726 WP No. 21309 of 2021

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HC-KAR

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ORAL ORDER

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The present petition seeks to challenge an order dated 01.10.2021, in O.S. No.26/2021 passed by the Civil Judge and J.M.F.C., at Narasimharajapura, (hereinafter referred to as ‘Impugned Order’). By the Impugned Order, an application under Order VI, Rule 17 of CPC, filed by the respondent/plaintiff has been allowed.

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The learned Trial Court has found that the amendments made would not cause any prejudice or hardship to the other side and have been made in the pretrial stage.

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The learned counsel for the respondent at the outset submits that pursuant to the Impugned Order passed by the Trial Court, the respondent filed his amended plaint and the petitioner has filed his amended written statement. He further submits that the trial in the matter is now underway.

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HC-KAR

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The learned counsel for the petitioner/defendant on

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the other hand, submits that the trial has already been concluded.

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Briefly the facts are that suit for permanent injunction was filed by the respondent/plaintiff claiming that the petitioner/defendant was interfering with his peaceful, possession, cultivation and enjoyment of the suit schedule – A, B and C properties. The suit was filed on 08.03.2021. The written statement was filed by the petitioner/defendant thereafter on 19.04.2021. Within a month of filing the suit, an application under Order-VI, Rule-17 of CPC was filed by the respondent/plaintiff before

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the learned Trial Court, by the respondent/plaintiff stating that certain typographical errors had occurred in the plaint while setting out the boundaries of the suit schedule – A, B and C properties and these inadvertent typographical errors needed to be corrected.

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An objection was filed by the petitioner/defendant to

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this application, wherein ‘boiler/plate’ defences were taken

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HC-KAR

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to this application, such as, the application is filed to fill up lacuna in the schedule properties; the entire nature of the

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suit will be changed and that the application is filed only to harass the petitioner/defendant.

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7. None of these objections were substantiated in the

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application by the Defendant. The objections being brief are set out below:

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“OBJECTIONS FILED BY THE DEFENDANT TO I.A. U/O 6, RULE 7 FILED BY THE PLAINTIFF ARE AS FOLLOWS:-

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01. That the application is not maintainable either in law or facts.

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02. The application filed only to mislead the Hon'ble court with bad motive.

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03. The applicant not shown any valid reason to make amendment, the reasons stated in the affidavit are all false and denied.

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04. It is submitted that after filing of the suit, defendant filed the written statement on 19.04.2021 and plaintiff side on I.A. U/o ., 39, rule 1 & 2 was heard and defendant side was also heard on . 21.04.2021 and subsequently case is posted to reply, then this application is filed only to mislead the court. In the written statement itself the defendant specifically denied the boundary of the suit schedule property and identification of the suit schedule property. The plaintiff by moving application for amendment, thereby overtaking the defence of the defendant as well as admission, this is not permissible under law or fact, under such fact also application is not maintainable either in law or fact.

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05. The application is filed to fill up the lacuna in the schedule which is not permissible under law or fact.

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HC-KAR

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06. If amendment is allowed, the entire nature of the suit, nature of the schedule, cause of action are all changed which is not permissible under law or facts. Hence the application is not maintainable.

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07. The application is filed only to harass the defendant and with bad motive that too at a belated stage.

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08. And all other grounds urged at the time of hearing of I.A., the application is not maintainable in law or facts.

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Hence it is prayed that this Hon'ble court be pleased to dismiss the I.A. with cost in the ends of justice and equity.”

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As stated above, the learned Trial Court after

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examining the amendments sought for, as well as the objections filed, found that permitting the respondent / plaintiff to change the survey number and the boundary of the suit properties, will not change the nature of the suit. In addition, the learned Trial Court relied on the judgment of the Hon’ble Supreme Court in the case of Revajeetu

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Builders And Developers vs. Narayanaswamy And

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Sons And Others¹ , gave its finding that if the amendment is allowed; no prejudice or hardship will be caused to the defendant.

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1 (2009) 10 SCC 84

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NC: 2026:KHC:6726 WP No. 21309 of 2021

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HC-KAR

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The suit bearing O.S.No.26/2021 has been filed for

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permanent injunction, seeking the following prayers:

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“a) Permanent injunction restraining the defendant or any one claiming under him from interfering with the peaceful possession, cultivation and enjoyment of suit schedule 'A' & 'B' schedule properties by the plaintiff.

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b) Permanent injunction restraining the defendant from carrying any kind of loss or damage in or to the suit schedule 'C' property.

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c) For court cost and such other reliefs as this Hon'ble Court deems fit to grant under the circumstances of the case.”

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Since this is an injunction suit seeking permanent injunction, as well as restraining the defendants from interfering with the peaceful possession, cultivation and enjoyment of the suit schedule - A, B and C properties and restraining the petitioner/defendant from causing any loss to the suit schedule by properties, it is imperative that the boundaries of each of the schedule properties are clearly set out.

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HC-KAR

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It is no longer res integra that ordinarily the Courts have to be liberal while granting amendments to the plaint especially if the amendment is necessary to meet the ends of justice. The Courts should normally be liberal while adjudicating amendments, unless the amendment has been sought for after the trial has commenced.

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The Hon'ble Supreme Court in the case of Dinesh Goyal Alias Pappu vs. Suman Agarwal (Bindal) and Others² has while discussing amendments to pleadings, consolidated the law passed and has held that it is the settled law that ordinarily Court should adopt liberal approach in granting leave to amend pleadings. However, provided that the amendments would satisfy the conditions of not working injustice on the other side and being necessary for the purpose of determining the real question and issue. The relevant extract is set out below:

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"11. At this juncture, before proceeding to the merits of the case, let us consider the law relating to the amendments of pleadings.

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2 2024 SCC Online SC 2615

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11.1. The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however , the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das³ it was held as under:

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"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these a real so well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR19575C363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions

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in controversy between the parties . Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166.]"

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11.2 Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17. Recently, this Court in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. & Anr., after considering numerous precedents in regard to the amendment of pleadings, culled out certain principles:-

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(i) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the

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3 (2008) 8 SCC 511

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word "shall", in the latter part of Order VI Rule 17 of the CPC.

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(ii) In the following scenario such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings provided it does not result in injustice to the other side.

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(iii) Amendments, while generally should be allowed, the same should be disallowed if -

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(a) By the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side.

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(b) The amendment does not raise a time-barred claim , resulting in the divesting of the other side of a valuable accrued right (in certain situations)

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(c) The amendment / completely changes the nature of the suit;

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(d) The prayer for amendment is malafide,

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(e) By the amendment, the other side should not lose a valid defence.

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(iv) Some general principles to be kept in mind are-

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The court should approach; ordinarily be liberal, especially when the opposite party can be compensated by costs.

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Amendment may where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach.

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The amendment should no cause of action, so as to setup an entirely new case, foreign to the case set up in the plaint."

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[Emphasis Supplied]

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HC-KAR

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As stated above, the amendment application was filed within a month of filing of the plaint, stating that certain typographical errors have occurred in the demarcation of boundaries of the suit schedule properties and the matter has now proceeded for trial. The petitioner has in fact accepted these amendments by filing of an amended written statement.

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In view of the aforesaid discussion, this Court finds no infirmity with the Impugned Order that requires interference by this Court. This petition is accordingly dismissed with costs in the sum of Rs.5,000/- (Rupees Five Thousand Only) to be paid to the Advocates Welfare

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Association, Bengaluru within two weeks.

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All pending applications stand closed.

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Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA Sd/(TARA VITASTA GANJU) JUDGE

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JJ

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List No.: 1 Sl No.: 16

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Sri. S v. Prakasha v Sri. S v Venkatesha

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Sri. S v. Prakasha v Sri. S v Venkatesha

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