Kenchappa vs Gowramma

Rathnakala, J—The petitioner herein is the plaintiff in O.S. No. 68/2006 pending on the file of the Civil Judge (Jr.Dn.) & JMFC, Challakere.

The suit was filed for permanent injunction in respect of the suit property described in the plaint as under:

"East: Vacant site

West: Sheet house belonging to Humme Kaimaggada Nekarara C.S.

North: Road

South: Galli Road"

After contest, the suit came to be dismissed. In appeal by the plaintiff, the Appellate Court allowed the appeal, with a direction to the trial court to hear the application filed by the plaintiff under Order XLI Rule 1 read with Section 96 of CPC along with main arguments. After remand, the plaintiff filed I.A. No. 17 under Order VII Rule 14(3) read with Section 151 of CPC, seeking permission to produce Sale Certificate dated 14.1.1988 issued by the Mandal Panchayat, Hirehally in his favour and another application I.A. No. 18 under Order VI Rule 17 read with Section 151 of CPC, to cause amendment to the averments made in the body of the plaint thereby to change the facts that the site in question, which was shown as having been granted by Mannekote, is granted by Hirehally Mandal Panchayat. Both the applications were contested. The Court below took exception to the delay caused in filing the application and also was of the opinion that the amendment will change the nature of the case of the plaintiff and the mode of acquisition of the property will also change.

Sri. Kiran Kumar, learned Counsel appearing for the petitioner fairly concedes that there was delay on the part of the plaintiff in producing the additional documents. Throughout he was litigating under the impression that the suit property since was located within the area of Mannekote Grama Panchayat, he was under the impression that the said site was granted by Mannekote Grama Panchayat. It is only after perusing the grant certificate, he came to know that the site is granted by the then Hirehally Mandal Panchayat, which had the jurisdiction over the area coming within the limit of Mannekote and the description of the suit property will not change by allowing the amendment application. Under the circumstance, he prays that the order passed by the court below may be set aside.

Sri. Kumar. K.G., learned Counsel appearing for the respondent submits that, by way of amendment, the mode of acquisition of the property would change throughout; the defendant had understood and addressed the case of the plaintiff that, the site is granted by Mannekote Grama Panchayat. By allowing the amendment, the nature of the pleading would change, which is not permissible at this stage.

Having regard to the fact that the petitioner by way of amendment proposes to bring on record the fact that the site at Mannekote is granted to him by Hirehally Mandal Panchayat, but not by Mannekote Grama Panchayat as averred by him in his plaint earlier, in my considered opinion, the nature of the pleading or the nature of the proceedings would not alter. The description of the site granted in the Sale Certificate dated 14.1.1988, which he is producing before the court as additional evidence, tallies with the plaint schedule property. In that view of the matter, it is required that both applications shall be allowed to resolve the controversy between the parties. The delay caused in filing the application can be compensated by ordering a cost of Rs. 10,000/-.

Accordingly, these Writ Petitions are allowed.

The impugned order dated 3.3.2015 passed in O.S. No. 68/2006 on I.A. Nos. 17 and 18 by the Civil Judge, Challakere, in rejecting the applications, is hereby set aside. Both applications are allowed, permitting the petitioner to produce additional documents in evidence and also to amend the plaint accordingly, subject to payment of cost of Rs. 10,000/- to the defendant.

The Trial Court is directed to dispose of the matter as expeditiously as possible.

Liberty is reserved to the defendant to file additional written statement after amendment is carried out and the amended plaint is produced before the Court.