Sri Dinesh Vs Sri Ramaiah

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 22.10.2021 ANNEXURE-A PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, AT MAGADI IN O.S.NO.828/2014 ON I.A.NO.4 (ANNEXURE-G) FILED BY THE PLAINTIFFS UNDER ORDER-VI RULE-17 OF CPC, CONSEQUENTLY DISMISS THE APPLICATION (ANNEXURE-G) FILED BY THE PLAINTIFF UNDER ORDER-VI RULE-17 OF CPC ANNEXURE-G AS NOT MAINTAINABLE & 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 MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated

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22.10.2021 passed on I.A.No.4 in O.S.No.828/2014 by the Additional Senior Civil Judge and JMFC., Magadi (for short, ‘the trial Court’ ).

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Heard Sri.B.C.Venkatesh, learned counsel for

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the petitioner and Sri.Vijaya Kumar K., learned counsel for the respondent Nos.1 to 5.

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This petition is filed by the defendant No.7 challenging the order of the trial Court wherein the application of the plaintiffs filed under Order VI Rule 17

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NC: 2026:KHC:33133 W.P. No.4422/2022

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was allowed by permitting the plaintiffs to amend the plaint and also permitted to seek additional relief of possession. The respondent Nos.1 to 5 – plaintiffs have filed the suit for the relief of declaration and permanent injunction. In the said suit, the defendants filed written statement denying the plaint averments. The trial Court framed the issues. The respondent No.1 herein has been examined as PW1. During the course of crossexamination, PW1 has admitted that the defendants are in possession. The application is filed by the plaintiffs under Order VI Rule 17 of CPC seeking to amend the plaint averments and they have also sought for additional prayer of possession. The said application was allowed by the trial Court.

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It is required to be noticed that the plaintiffs in the affidavit accompanying the application, have stated that during the pendency of the suit, by changing the revenue records the defendants trespassed into the property and illegally took over the possession and hence,

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the relief of possession is sought in the said application. Considering the said aspect, the trial Court allowed the application.

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The contention of the learned counsel for the petitioner is that the plaintiffs were very well aware that the defendants are in possession. However, they failed to seek the said relief and only when the evidence is commenced, the application is filed.

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It is required to be noticed that the Hon'ble

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Supreme Court in the case of Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Anr. at para No.70 held as under:

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“70. Our final conclusions may be summed up thus:

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(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

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(ii) 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

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apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.

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(iii) The prayer for amendment is to be allowed

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(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

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(ii) to avoid multiplicity of proceedings, provided

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(a) the amendment does not result in injustice to the other side,

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(b) 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 and

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

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(iv) A prayer for amendment is generally required to be allowed unless

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(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

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(ii) the amendment changes the nature of the suit,

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(iii) the prayer for amendment is malafide, or

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(iv) by the amendment, the other side loses a valid defence.

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(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

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NC: 2026:KHC:33133 W.P. No.4422/2022

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(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

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(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

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(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

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(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

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(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

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(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary

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NC: 2026:KHC:33133 W.P. No.4422/2022

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for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897) : (AIROnline 2022 Del 1797).”

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7. Taking note of the fact that the amendment

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sought in the present case is at the initial stage of the proceedings i.e., when the PW1 has adduced evidence, the trial Court has rightly come to the conclusion that the amendments are necessary for complete adjudication of the dispute between the parties. In view of the same, I am of the view that the petition deserves to be disposed of by upholding the order of the trial Court; however, for the delay in filing the application and for the inconvenience caused to petitioner-defendant No.7, the application is required to be allowed on costs. Hence, the petition is disposed of . The plaintiffs shall pay a cost of Rs.5,000/to the petitioner-defendant No.7.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR/List No.: 1 Sl No.: 24

Sri Dinesh v. Sri Ramaiah

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Sri Dinesh v. Sri Ramaiah

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