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Judgment
A.N. Venugopala Gowda, J.—Petitioner is the plaintiff and respondents are the defendants in O.S. No. 1868/2006 pending on the file of Addl. II Civil Judge (Jr. Dn.), Bangalore Rural District, Bangalore. Petitioner having purchased the suit property on 10.05.2004 alleged that there was attempts of illegal interference with the peaceful possession and enjoyment of his property by the respondents/defendants, even after filing of a police complaint, filed the suit on 05.12.2006, to pass a decree of permanent injunction restraining the defendants and any person claiming under them from interfering with his peaceful possession and enjoyment of the property shown and described in the schedule of the plaint. Written statement was filed on 17.07.2007. Issues having been raised, plaintiff filed affidavit evidence on 26.05.2010. Since the plaintiff/PW. 1 was not cross-examined, by treating the cross-examination as nil on 28.08.2010, the suit was posted for the evidence of defendants. On 29.09.2010, defendants filed I.A. No. 3, under Order VI Rule 17 R/w 151 of CPC, seeking permission to amend the written statement. Though the plaintiff/petitioner filed statement of objections by way of a counter affidavit, learned Trial Judge allowed the I.A. No. 3 on the ground that, if the application is not allowed, there would be multiplicity of proceedings and by granting permission there could be resolution of the dispute between the parties. Since the application was filed at a belated stage, cost was imposed and opportunity was granted to the plaintiff to file rejoinder or objection or reply to the amended written statement, apart from opportunity to adduce further evidence. Feeling aggrieved, the plaintiff has filed this writ petition. Sri. Sreenivasa, learned advocate appearing for the petitioner by taking me through the record of the case and placing reliance on an order dated 07.03.2012 passed in W.P. No. 6786/2012 contended that the Trial Court has committed serious error and has acted in excess of its jurisdiction in allowing I.A. No. 3. He submitted that on account of granting the permission to amend the written statement, the defendants have been permitted to take away the admission contained in the pleading and such an amendment cannot be allowed, that too after commencement of the trial, when the proviso under Rule 17 Order 6 of CPC is attracted. Reliance was also placed on the decision in the case of Vidyabai and Others Vs. Padmalatha and Another, . Learned counsel submitted that the impugned order being irrational and illegal, interference in the matter is warranted.
Sri. K.L. Sri.nivasa, learned advocate appearing for the respondents, on the other hand submitted that in the facts and circumstances of the case, the Trial Court is justified in allowing I.A. No. 3 and in permitting the defendants to amend the written statement. Learned advocate placed reliance on the decisions reported in Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, , Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., , Bollepanda P. Poonacha and Another Vs. K.M. Madapa, and Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Others, and sought upholding of the impugned order.
Perused the writ petition record.
I.A. 3 was filed by the defendants on 29.09.2010, long after commencement of the trial of the suit. The proposed amendment reads as follows:-
In Para No. 15, eleventh line the word "Eastern" be deleted and substitute the word "Western" in its place.
After Para No. 15 to add the new para 15-A: Para No. 15-A:
It is submitted that after execution of the said irrevocable G.P.A. Dt. 30.10.1990, in favour of Mukund, S/o. Sri. Narahari, by the original owner Mrs. Patric Felicitis D''Souza, the said G.P.A. Holder was in physical possession and enjoyment of the property covered under the said G.P.A. measuring East to West 200'' Feet and North to South 113-1/3 Feet and thereafter the said G.P.A. Holder sold the portion of the property covered under the said G.P.A. measuring East to West 115'' Feet and North to South 113-1/3 Feet in favour of the 3rd Defendant and others. Thus it is amply clear that the Plaintiff has no right whatsoever in respect of property purchased by 3rd Defendant and others under Reg. Sale Deed Dt. 6.6.2003. The Plaintiff claims to have purchased the suit schedule property, which is non-existing one under a Reg. Sale Deed Dt. 10.5.2004. Now based upon the alleged sale deed the Plaintiff is trying to mislead this Hon''ble Court as if they are the owners of in possession of the same. It is submitted the Plaintiff has no property whatsoever mulch less suit schedule property and identify the same. Hence on this score alone the suit is liable to be dismissed.
The material portion of the affidavit in support of the prayer in I.A. 3 reads as follows:-
I submit that the proposed amendment at serial no. 1 is necessary as the word "Eastern" shown earlier is purely typographical error and it is accidental slip. The said error is to be rectified and substitute in its place the word "Western". Due to inadvertence and accidental slip the said error is crept, hence the same be deleted, in order to substantiate the plea raised in the written statement.
I submit that the proposed amendment at serial no. 2 is very mulch necessary in continuation of my earlier plea already raised in written statement. Due to over sight the proposed amendment could not be made earlier.
I am advised submit that the proposed amendment never changes the cause of action nor alters my plea raised in the written statement. Hence the same may kindly be allowed to secure the ends of justice.
In the statement of objections filed to I.A. 3, it was stated as follows:
There are no new facts which have arisen after the trial has commenced, nor the defendants stated that the amendment sought for was not within their knowledge at the time of filing the Written Statement or even before the commencement of trial. The defendants have not been diligent and no steps are taken by them before commencement of the trial, so as to ascertain the alleged facts sought to be raised by way of amendment.
From a perusal of the decisions on which reliance was placed by Sri. K.L. Sri.nivasa, it is clear that in the case of amendment of written statement, the courts are more liberal in permitting the amendment than that of a plaint as the question of prejudice would be far less in the former than the latter case. However, the Courts must exercise discretionary jurisdiction in a judicious manner and the discretion cannot be used contrary to the statutory interdict.
Courts discretion to grant permission for a party to amend his pleading can be exercised, firstly, where no injustice is done to other side and secondly, the amendment being necessary for the purpose of determining the real question in controversy between the parties also keeping in view the proviso under Rule 17 of Order 6 of CPC. Even after commencement of the trial, the amendment can be permitted, if it is shown that in spite of due diligence, the applicant could not have raised the matter, earlier to the stage of commencement of the trial. The suit is one for passing a decree of permanent injunction. The suit is for limited relief to protect the possession and enjoyment of the suit property, allegedly being held and enjoyed peacefully by the plaintiff. Written statement was filed. The proposed first amendment is to delete the word ''Eastern'' and substitute with the word ''Western'' in para 15 of the eleventh line in the written statement. The second proposed amendment was well within the knowledge of the applicants/defendants when the written statement was filed. The proposed additional amendment Para 15-A is unnecessary to decide the real question in controversy in the suit, which is for passing a decree of permanent injunction only. With the proposed amendment, defendants have sought to take away the fact of the admission contained in para 15 of the written statement and have sought to introduce an additional paragraph, which is unnecessary to decide the issues raised in the suit, filed to pass a decree of permanent injunction. Thus, the view taken by the Trial Court to grant the relief, by observing that by allowing amendment, multiplicity of the proceedings can be avoided is on account of a misdirection adopted in the matter. There is a material irregularity committed while considering and allowing I.A. 3. The impugned order is irrational. Hence, the impugned order is unsustainable.
In the result, writ petition is allowed and the impugned order is quashed.
I.A. 3 filed in the suit being devoid of merit stands dismissed.
However, parties are directed to bear their respective costs.