Parappa and Others vs Parawa and Others

B. Veerappa, J.

The present writ petition is filed by the petitioners, who are defendant Nos. 1 to 5 in the trial court, challenging the order dated 16.07.2014 passed in O.S. No. 179/2012, rejecting I.A. No. 8, filed by the petitioners under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, seeking permission to amend the written statement.

The respondent Nos. 1 to 4, who are the plaintiffs in the trial court, filed a suit for declaration that the plaintiffs are the absolute owners of R.S. No. 618/7 measuring 0.31 guntas and R.S. No. 619/7 measuring 1 acre 13 guntas 8 annas, situated at Mugalkhod village, Raibag Taluk and the compromise decree is not binding on them, and also for restraining the defendants from obstructing the peaceful enjoyment of the suit lands pending in the suit, contending that they are the absolute owners of the suit schedule properties and they are growing sugar-cane crops. The plaintiffs also contended that, on giving a varadi by defendants, the defendants have not asked the plaintiffs to give possession of the suit lands. The possession of the suit lands are with the plaintiffs. Believing them, plaintiffs have joined their hands with defendant No. 1 and jointly cultivated the lands. The plaintiffs and defendants cultivated the suit lands jointly till the death of Mallappa. The plaintiffs are the absolute owners of the suit lands, etc.

The defendants filed written statement denying the entire plaint averments, by specifically contending that the very plaintiffs admittedly have filed O.S. No. 651/2011 and during the pendency of the said suit, present suit is filed for declaration. Therefore, on this ground alone, the present suit is not maintainable and deserves to be dismissed and also contended that earlier defendants filed O.S. No. 68/2013 for injunction and the same is pending. Though a series of suits are filed by the plaintiffs, without disclosing the same, the plaintiffs have again filed the present suit and thereby plaintiffs are precluded from filing the present suit. Therefore, the present suit filed by the plaintiffs is not maintainable. It was also contended that the defendants are the owners of the suit schedule properties, etc. and prays for dismissal of the suit.

The matter was posted for plaintiffs'' evidence. At that stage, defendant Nos. 1 to 5 filed the application under Order VI Rule 17 of Code of Civil Procedure for amendment of written statement to the effect that earlier the suit O.S. No. 651/2011 filed for declaration and injunction was dismissed as withdrawn. The plaintiffs did not seek liberty to withdraw or abandon the claim to file a fresh suit on the same cause of action. The present suit is hit by Order XXIII Rule 1(4) of Code of Civil Procedure and also contended that defendant No. 3 has filed O.S. No. 384/2011 against defendant Nos. 1, 2, 4 and 5 for partition and separate possession in respect of the suit schedule properties and during the pendency of the said suit, the matter came to be settled by way of compromise petition and the same was referred to Lok Adalat and the Lok Adalat recorded compromise decree dated 08.08.2011. The parties to the suit have not challenged the decree/award. The said decree passed by Lok Adalat has become final. Therefore, the relief of declaration regarding compromise decree is not maintainable.

It was also contended that during the pendency of the present suit, the plaintiffs have filed another suit for permanent injunction before the vacation court in respect of the suit schedule properties and the said suit, after vacation, was transferred to the Court of Civil Judge, Raibag, which was renumbered as O.S. No. 68/2013 and thus, the plaintiffs are in the habit of filing suits one after another against defendant Nos. 1-5. Therefore, the defendants have sought for allowing the amendment.

The plaintiffs filed objections to the said application and stated that all the proposed amendments have been stated by the defendants in their written statement and there is no need to file any amendment application at all. The facts in proposed amendment of written statement are mentioned by defendants in their written statement at paragraphs 2, 11 and 14 and as such, the proposed amendment is not necessary.

Based on the pleadings and objections, learned Civil Judge by the impugned order dated 16.07.2014 rejected I.A. No. 8 for amendment under Order VI Rule 17 of Code of Civil Procedure. Hence, the present writ petition is filed by defendant Nos. 1 to 5.

I have heard the learned counsel for the parties to the lis.

Smt. Rekha Patil, learned counsel for the petitioners, strenuously contended that the impugned order passed by the trial court, rejecting the application for amendment is erroneous and contrary to law. Though the amendment sought for, to add certain facts in respect of the suits, already mentioned in the written statement, they want to state the details of the suits and the results. Therefore, the amendment will not change the nature of the suit. Therefore, she sought to set aside the impugned order passed by the trial court.

Sri. H.M. Dharigond, learned counsel for respondent No. 3/3rd plaintiff sought to justify the impugned order and specifically contended that the proposed amendment sought for by the defendants is already stated in their written statement at paragraphs 2, 11 and 14. Therefore, the same is not necessary and sought for dismissal of the petition.

I have carefully considered the arguments advanced by the learned counsel for the parties and perused the entire material on record.

It is not in dispute that the present suit filed by the plaintiffs is for declaration and permanent injunction in respect of the suit schedule properties. It is for the plaintiffs to establish their title based on the material documents independently. They have to prove that they are the owners of the properties in question. The defendants, while filing the written statement, specifically pleaded at paragraphs 2, 11 and 14, with regard to O.S. No. 651/2011, O.S. No. 68/2013 and O.S. No. 384/2011. When they have already pleaded with regard to the earlier suits, it is always open to them to cross-examine the plaintiffs in that regard and there is no necessity to file the proposed amendment. It is nothing but re-iteration of the facts already on record.

Considering the entire material on record, the trial court recorded a specific finding that the defendants have specifically raised a contention with regard to the filing of O.S. No. 651/2011 and O.S. No. 68/2013 on the file of the Civil Judge, Raibag. Since, filing of these suits, the plaintiffs are precluded from filing the present suit. In paragraph No. 14 of their written statement, defendants have specifically stated with regard to filing the suit in O.S. No. 651/2011 is contrary to the present suit. The defendants in the present application have sought to plead some facts with regard to filing of the earlier suits and their results and in view of the series of cases filed by the plaintiffs, the present suit is not maintainable under law. Considering the assertion of the defendants and so also, compared to the proposed amendment of the written statement by the defendants, there is nothing new which is required to resolve the controversy between the parties. The proposed amendment facts sought by the defendants to add in their written statement are already pleaded. Therefore, question of pleading the said facts does not arise, and which are nothing but to fill the water to the loaded water bottle.

Accordingly, the trial court dismissed the application for amendment of the written statement. The same is in accordance with law. I find no grounds to interfere with the impugned order, in exercise of power under Articles 226 and 227 of the Constitution.

However, the trial court shall decide the suit on merits, independently, without being influenced by any of the observations made while passing orders on I.A. No. 8 on 16.07.2014. Accordingly, the writ petition is dismissed.