K.R. Ashok Kumar vs Shivaramaiah and Others

S. Sujatha, J.—This writ petition is filed by the petitioner challenging the order on I.A. No. 10 in O.S. No. 4535/2007 on the file of the City Civil and Sessions Judge at Bangalore.

The brief facts of the case are that:

"Plaintiff/petitioner is the owner in possession of the suit schedule property in O.S. No. 453/2005 having purchased the property from Rajashekaraiah who was the erstwhile owner in respect of land in Sy. No. 85 of Hosakerehalli Village registered vide registered deed dated 27.11.1980. It is the case of the petitioner that respondents 2 to 9 having made several attempts of interference to dispossess the petitioner from the suit schedule property and in those circumstances, petitioner filed O.S. No. 11058/06 for a relief of injunction and other consequential reliefs before the City Civil Judge, Bangalore. The said suit was decreed. In the said proceedings, respondents 3 to 11 have filed a memo stating that they have sold the subject ''property'' in favour of defendants 1 and 2 herein. Accordingly, O.S. No. 4535/2007 was filed by the petitioner against defendants 1 to 11 seeking for injunction and other reliefs. At the time of adducing evidence, it was brought to the knowledge of the petitioner that the suit schedule property was alienated by 1 and 2 in favour of Sri N R Prasad. After coming to know the said alienation, an application under Order 6 Rule 17 of CPC was filed by the petitioner to amend the prayer in the plaint to incorporate a prayer for a decree of declaration, declaring that the plaintiff is the absolute owner having right, title, interest and ownership of possession in respect of suit schedule property by virtue of the sale deed dated 27.11.1980. This application was resisted by the respondents. After hearing, the learned City Civil Judge dismissed the said application against which this writ petition is filed." 3. Learned counsel Sri V B Shivakumar appearing for the petitioner contended that though originally suit was filed for injunction, due to the subsequent developments that have taken place during the pendency of the suit, the petitioner was required to move an application for amendment of the plaint to incorporate the prayer for a decree of declaration of title which was not properly appreciated by the learned Civil Judge while disposing of the application and sought for allowing the writ petition setting-aside the order impugned herein.

The case was listed on 24.03.2015 in Preliminary Hearing ''B'' Group. None appeared for respondents. The matter was adjourned to 26.03.2015.

None appears for the respondents.

After hearing the learned counsel appearing for the petitioner, it is noticed that originally petitioner had filed O.S. No. 11058/2006 before the learned City Civil Judge for injunction against respondents 3 to 11 and the said suit was decreed holding that the petitioner is in possession of the schedule property. Since there was interference by respondents 1 and 2 setting-up their claim on a registered sale deed, said to have been executed by defendants 3 to 9 in their favour, petitioner filed O.S. No. 4535/2007 against respondents 1 to 11 seeking for injunction and other consequential reliefs. During trial, it has come to the knowledge of the petitioner that in the suit proceedings, the said respondents 1 and 2 have alienated the suit schedule property in favour of Sri N.R. Prasad on 18.7.2011. Accordingly, it has necessitated the petitioner to move an application seeking for amendment of the plaint to incorporate additional prayer for a decree of declaration which was rejected by the learned City Civil Judge without properly appreciating the circumstances which warranted the petitioner to file an application for amendment as sought for.

Order 6 Rule 17 of CPC provides for amendment of the pleadings at any stage of the proceeding and the proviso inserted with effect from 1.7.2002 does not create absolute bar to carry an amendment subsequent to the commencement of the trial, provided that the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial.

The facts of the present case, clearly reveals that the alienation of the suit schedule property by respondents 1 and 2 in favour of Sri N R Prasad on 18.7.2011 was not within the knowledge of the petitioner and it has come to her knowledge only during the trial. Hence, immediately on 29.8.2011, an application for amendment was filed seeking for an additional prayer of declaration of title to the property. In the circumstances, it was just and necessary to allow the amendment application to determine the real controversy between the parties and for final adjudication of the case to avoid the multiplicity of proceedings. No prejudice would be caused to the respondents, affecting their rights by allowing this amendment application, the amendment sought for does not alter the nature of the suit. The learned City Civil Judge without considering these aspects has outrightly rejected the application, which is not sustainable. Accordingly, the impugned order is set-aside. I.A. is allowed with costs of Rs. 2,000/-.

In the result, the writ petition is allowed. Costs of Rs. 2000/- shall be paid by the petitioner to the respondents on the next date of hearing before the trial court. The petitioner shall pay the necessary Court-fee as per the Karnataka Court Fees and Suits, Valuation Act, 1960.