Salamma vs H. Bharathi

B. Manohar, J.—The petitioner is the plaintiff in OS No. 5061/2008 on the file of the Principal City Civil and Sessions Judge, Bangalore (CCH - 45). Being aggrieved by the order dated 30.9.2011 rejecting the application in I.A. No. 2 filed under Order 6 Rule 17 of CPC, he has filed this writ petition.

The petitioner/plaintiff filed the suit seeking for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property. In the suit, it was contended that plaintiff is the absolute owner in possession of the property bearing site No. 19 situated at 17th A Main Road, Jedahalli village, Rajajinagar 5th Block, Bangalore measuring east to west 35 feet and north to south 30 feet. The said property was purchased as per registered sale deed dated 21.3.1960. Since then, she has been in possession and enjoyment of the same. However, the defendant is trying to interfere with the possession of the property and hence the plaintiff filed the suit seeking for permanent injunction.

Defendant/respondent herein entered appearance and filed written statement in the suit disputing the correctness of description of the property and boundaries. In view of the said objection, plaintiff on verification of records found that in view of inclusion of properties within the limits of Bangalore City Corporation, the said Authority has changed the number of the properties. In view of that, she made I.A. No. 2 for amendment of the plaint by incorporating the correct boundaries. Defendant filed objection to I.A. No. 2 contending that there is no bona fide on the part of the plaintiff and amendment after commencement of evidence is not permissible.

The Trial Court by its order impugned in this writ petition rejected the said application on the ground that the matter was posted for evidence after framing of issues as per proviso to Order 6 Rule 17 CPC, the pleadings of the parties cannot be amended. Therefore, the said order is under challenge in this writ petition.

Sri Kiran Kumar, learned Advocate appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. Plaintiff had purchased the property in the year 1960. Originally, the said land was acquired by the Authorities concerned and de-notified subsequently. After de-notification of the property, she had purchased the property from the erstwhile owner. However, the defendant interfered with the peaceful possession and enjoyment of the suit schedule property. In view of that, she filed the suit seeking for injunction restraining the defendant with peaceful possession of the property. After filing of the written statement, on verification of records, there is some mistake in the boundaries. Therefore, she made I.A. No. 2 for amendment of the plaint by incorporating the correct boundaries. Learned Advocate submits that the amendment sought for will not change the nature or cause of action of the suit and sought for allowing the writ petition by setting aside the order passed by the trial Court.

On the other hand, Sri Praveen, learned Advocate appearing for the respondent argued in support of the impugned order and contended that the Trial Court after considering the matter in detail rejected I.A. No. 2. The petitioner cannot amend the pleadings of the parties after commencement of the Trial Court. The Trial Court taking into consideration the entire aspect of the matter rejected I.A. No. 2. Learned counsel sought for dismissal of the writ petition.

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

The records clearly disclose that petitioner filed the suit seeking for bare injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property contending that she has purchased the property in the year 1960. The defendant filed the written statement disputing the description of the schedule property and boundaries and also dimension of the property. After verification of the records, she found that in view of inclusion of properties within the limits of Bangalore City Corporation, the said Authority had given new numbers to the properties. In view of that, she has to change the boundaries by incorporating correct boundaries. Therefore, I.A. No. 2 was filed under Order 6 Rule 17 of CPC. However, the Trial Court rejected I.A. No. 2 only on the ground that the trial has been commenced. Order 6 Rule 17 of CPC makes it clear that at any stage of the proceedings, the Court may allow either party to alter or amend his pleadings. However, amendment shall be made before commencement of trial. In the instant case, the evidence of the parties is not yet commenced. Further, the Hon''ble Supreme Court while interpreting proviso to Order 6 Rule 17 of CPC in Civil Appeal No. 7043/2012 (Abdul Rehman and others -vs- Mohd. Rulder and others) held that if such application is made, after commencement of trial, in that event, Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial such an application cannot be rejected. In the instant case, only after filing of written statement, the petitioner came to know the change of number and boundaries. Thereafter, she obtained the sketch prepared by the Bengaluru Bruhat Mahanagara Palike in the said layout and accordingly, I.A. No. 2 was filed. Therefore, the order rejecting I.A. No. 2 cannot be sustained. The petitioner has satisfied the Court that in spite of her due diligence, she could not make an application for amendment of boundaries before the commencement of trial. The evidence of the parties is yet to commence as on the date of passing of the order. In the circumstances, I pass the following:

ORDER

"The writ petition is allowed.

The order dated 30.9.2011 on I.A. No. 2 made in OS No. 5061/2008 by the learned Principal City Civil and Sessions Judge, Bangalore, is set aside.

Plaintiff is permitted to amend the plaint. Since the suit is of the year 2008, the plaintiff has already led evidence. She submitted that she will not lead further evidence. The defendant has to examine herself. The Trial Court shall dispose of the matter as expeditiously as possible, within a period of one year from the date of receipt of a copy of this order."