Lakshmamma vs The Commissioner

B. Manohar, J.—Petitioner being the plaintiff had filed a suit in O.S. No. 1992/2010 seeking for permanent injunction restraining the defendant from interfering with her peaceful possession and demolishing the existing house in the suit schedule property on the file of the City Civil Judge, Bangalore. Being aggrieved by the order passed by the XVI Additional City Civil and Sessions Judge, Bangalore City dated 5-9-2012 rejecting the application filed by the petitioner under Order 6 Rule 17 of CPC, the petitioner has filed this writ petition.

In the writ petition, the petitioner has contended that she is the absolute owner of the property bearing Site No. 1 in Sy. No. 39 situated at Agrahara Dasarahalli, in all measuring 36 x 80 sq.feet which was purchased from Kamalamma as per the registered sale deed dated 26-11-1980. In the said suit, the petitioner had filed an application under Order VI Rule 17 of CPC to amend the plaint to correct the western and northern boundaries. The said application was opposed by the defendant. The Trial Court after considering the matter in detail rejected the application on the ground that after commencement of the trial, the plaint cannot be amended and it will change the cause of action and nature of the suit. Being aggrieved by the said order, the petitioner filed the present writ petition.

Sri. B.V. Rama Moorthy, learned counsel appearing for the petitioner contended that the order passed by the Trial Court rejecting the application seeking amendment of the plaint is contrary to law. In view of inclusion of the property within the limits of BBMP new number has been given. In view of that the petitioner wanted to amend the schedule to the said suit to give the correct description of the property owned by the plaintiff. The amendment will not change the cause of action nor the nature of the suit. The order passed by the Trial Court rejecting the application filed by the petitioner is unsustainable and sought for allowing the writ petition.

On the other hand, Sri. A.M. Vijay, learned counsel appearing for the respondent argued in support of the order passed by the Trial Court and contended that the petitioner on the basis of the sale deed of the year 1980 claimed ownership over the property. In the said sale deed, the boundary has been mentioned. In the suit, the petitioner wanted to challenge the boundary towards northern and western side and also house property number which will change the entire frame of the suit and introduce new cause of action and new property. It is not permissible after the commencement of the trial. Further the suit was filed in the year 2010, pleadings has been completed and P.W.1 has been examined and cross-examined. In the cross-examination, P.W.1 has made certain admissions and to overcome the said admissions, the present application has been filed. The said application has been rightly rejected by the Trial Court and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the impugned order and other relevant records.

The records clearly disclose that the petitioner filed a suit seeking for an order of restraint against the respondent from interfering with the peaceful possession and also demolition of the said building. The case set up by the petitioner is that as per the registered sale deed of the year 1980, she had purchased the property and she became the absolute owner and the respondent-BDA has no power to interfere with her peaceful possession and demolish the existing structure. The petitioner is a bonafide purchaser of the schedule property and she was aware of the acquisition notification issued by the then CITB notifying the schedule property for acquisition. In the suit, initially the boundaries were already mentioned and subsequently, after the commencement of trial and after examination of P.W.1, the application has been filed for amendment of the plaint changing western and northern boundaries and also to give new number of the property purchased by the petitioner.

The Hon''ble Supreme Court in a judgment reported in Vidyabai and Others Vs. Padmalatha and Another, has clearly laid down a law that after commencement of the trail, the parties cannot be permitted to amend the pleadings though the reading of Order VI Rule 17 of CPC makes it clear that the court can permit either of the parties to amend the pleadings at any stage of the suit. The proviso to Rule 17 provides that no application for the amendment shall be allowed after the trial has commenced. In view of the law laid down by the Hon''ble Supreme Court, after the commencement of the trial and also after examination of P.W.1, the petitioner cannot be permitted to amend the plaint so as to overcome any of the admissions made by the petitioner. The case set up by the petitioner is that she had purchased site No. 1 in Sy. No. 39 of Agrahara Dasarahalli measuring 36 x 80 feet and she prays for amendment of the plaint and also to give new number to the schedule property. It is not permissible under law. The Trial Court after considering the matter in detail passed the order impugned. The petitioner has not made out any case to interfere with the well considered order passed by the Trial Court. Accordingly, the writ petition is dismissed.

The Trial Court shall dispose of the suit without being influenced by any of the observations made during the course of this order.