Gowramma & Others vs Kandamma & Others

R. Nataraj, J

The petitioners are the legal representatives of the deceased plaintiff in O.S.No.102/2013 on the file of the Additional Civil Judge and J.M.F.C., Ramanagara (hereinafter referred to as 'trial Court' for short), who have challenged an order dated 19.07.2022, by which, an application was filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short) was rejected.

The parties shall henceforth be referred to as they were arrayed before the trial Court.

The suit in O.S.No.102/2013 was filed for declaration of title of the plaintiff to the suit schedule property and for perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The plaintiff asserted in the plaint that the defendants had "wrongfully and illegally encroached towards western side and had put up cement block house". The plaintiff had also enclosed the photographs showing the encroached portion. However, the plaintiff did not seek for the relief of recovery of the possession of encroached portion. The defendants contested the suit. When the case was listed for arguments, the plaintiff engaged another lawyer, who advised the plaintiff to file an application to amend the plaint to seek the relief of demolition of the construction put up by the defendants and to recover possession of the encroached portion. Based on such advise, at the stage of reply arguments of the plaintiff, an application was filed to amend the plaint and to incorporate the relief of mandatory injunction to direct the defendants to demolish the encroached legal construction and to deliver vacant possession of the encroached portion. The trial Court rejected this application on the ground that the same was filed belatedly. It also held that the plaintiff was not diligent in not seeking the amendment before issues were framed.

Being aggrieved by the said order, the plaintiff has filed this writ petition.

Learned counsel for the plaintiff submitted that the requisite pleadings to support the relief of mandatory injunction and recovery of possession is already there in the plaint and the amendment was required to formally introduce the reliefs in the plaint, which would not affect the defendant in any manner whatsoever. He also undertook not to lead any oral evidence in support of the reliefs that is proposed to be inserted by way of amendment. He would further submit that the reliefs sought to be introduced by way of amendment, is only consequential and is subject to the plaintiff demonstrating title to the suit schedule property.

Per contra, learned counsel for the defendant submitted that a perusal of the application for amendment itself discloses that the construction was put up as on the date of the suit and therefore, it was incumbent upon the plaintiff to have sought for relief of recovery of possession, which the plaintiff failed. He submitted that the plaintiff cannot now seek for the amendment that too at the penultimate stage of the suit.

It is no doubt true that an application for amendment cannot be entertained at the fag end of the proceedings and the plaintiff is bound to exercise all due, care and caution, while seeking the reliefs in the suit. In the present case, the plaintiff has already pleaded about the encroachment by the defendants and also the construction that was put up by them in the encroached portion. Therefore, the plaintiff was bound to seek the consequential relief of recovery of possession of the encroached portion. Since the relief sought to be introduced by way of amendment is consequential in nature and since the said relief is essential for fully and finally adjudicating the dispute between the parties and also since the application is filed well within the time prescribed under the law of limitation, it is appropriate to allow the application by compensating the defendants for the delay in the adjudication of the suit. This would also meet the ends of justice.

In that view of the matter, though the reasoning assigned by the trial Court is unexceptionable but yet since the plaintiff deserves a final opportunity, the writ petition is allowed. Consequently, the impugned order passed by the trial Court is set aside. The application filed by the plaintiff under Order VI Rule 17 of CPC is allowed, subject to payment of cost of Rs.10,000/-(Rupees Ten Thousand only) payable by the plaintiff to the contesting defendant No.4.

It is made clear that the plaintiff shall not lead any oral evidence in support of the reliefs that are introduced by way of amendment. The trial Court shall permit the plaintiff to amend the suit reliefs.

It is open for the defendants to file their written statement to the amended plaint and the trial Court may proceed to pass judgment based on the available pleadings and evidence.