S.M. Krishna vs S. Rathna

B. Manohar, J.—Petitioners are the defendants in O.S. No. 812/2007 on the file of VIII Additional City Civil Judge, Bengaluru. They being aggrieved by the order dated 7th September, 2007 made on I.A. No. 16 dismissing the application filed under Order VI Rule 17 CPC, have filed this writ petition.

The respondent/plaintiff filed the suit against defendants seeking for permanent injunction restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. In the suit, it was contended that plaintiff has purchased the suit schedule property under a registered sale deed dated 21.3.2003 from the 2nd defendant as power of attorney holder of Sri Ramachandra Reddy. After the purchase, plaintiff is in possession and enjoyment of the same. However, the defendants interfered with the possession of the suit schedule property of the plaintiff. In view of that, she filed the suit seeking for permanent injunction.

Defendants entered appearance and filed written statement denying the entire averments made in the plaint and also execution of sale deed by the 2nd defendant in favour of plaintiff. It was further contended that defendants are in physical and actual possession of the suit schedule property and they are absolute owners of the same and sought for dismissal of the suit.

On the basis of the pleadings of the parties, the Trial Court framed necessary issues. The plaintiff was examined herself as P.W. 1 and got marked the documents as Exs. P1 to P23. She was cross-examined by the defendants. When the case was posted for defendants'' evidence, the defendants filed I.A. No. 16 to amend the written statement by incorporating paras-9 to 12. In paras-9 to 12, the defendants wanted to plead new grounds contending that the husband of the plaintiff is a money lender and the defendants had taken loan from the husband of plaintiff. While taking the loan, the husband of the plaintiff had taken signatures on the blank demand promissory note and also stamp papers. The said blank papers were made use of by the plaintiff. The said contention was not taken while filing the written statement. The amendment was sought after five years of filing the suit that too when the case was posted for evidence of the defendants. The Trial Court taking into consideration of these facts all these aspects of the matter rejected I.A. No. 16 by its order impugned and the same is challenged in this writ petition.

Sri Lohitaswa Banakar, learned Advocate appearing for petitioners contended that the order passed by the Trial Court is contrary to law. At any stage of the pleadings, plaintiff or defendant can amend the pleadings. The Trial Court without taking into consideration the provisions under Order VI Rule 17 CPC rejected I.A. No. 16, which is contrary to law. Hence, sought for allowing the writ petition.

On the other hand, Sri Giriyappa, learned Advocate appearing for the respondent argued in support of the order passed by the Trial Court and contended that plaintiff filed the suit for permanent injunction restraining the defendants from interfering with the peaceful possession of the suit schedule property on the basis of the sale deed dated 21.3.2003. The ground taken in the application for amendment was not taken while filing the written statement in the year 2007. After the plaintiff got examined herself and marked various documents, I.A. No. 16 was filed. There is no bona fide in the application, hence, sought for dismissal of the writ petition.

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

The records clearly disclose that plaintiff filed the suit seeking for permanent injunction against the defendants. The defendants filed written statement in the year 2007. Thereafter, the issues were framed. The case was posted for evidence of the parties. The plaintiff got examined herself as P.W. 1 and got marked the documents as Exs. P1 to P23. When the case was posted for defendants'' evidence, I.A. No. 16 was filed seeking for amendment of the written statement taking various contentions and also making allegations that husband of the plaintiff had taken his signatures on the blank papers and that was made use by the plaintiff.

A reading of provision of Order VI Rule 17 of CPC makes it very clear that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Proviso to the said Section makes it very clear that no application for amendment shall be allowed after the trial is commenced. In the instant case, long after commencement of the trial, the amendment application was filed seeking to amend the pleadings which is not permissible. The allegations made in paras-9 to 12 are available as on the date of filing of the written statement. There is no due diligence on the part of defendants. Long after the evidence of the plaintiff and after marking various documents, in order to over come the pleadings of the plaintiff, I.A. No. 16 was filed. I find that there is no bona fide in the application. The averments made in paras-9 to 12 are not necessary to settle the dispute between the parties. The suit filed by plaintiff is for bare injunction restraining the defendants from interfering with the peaceful possession and enjoyment of suit schedule property on the basis of sale deed. The petitioners have not made out prima facie case to interfere with the order impugned. Therefore, I do not find any infirmity or irregularity in the order impugned. Accordingly, the writ petition is dismissed.