Ramesh Balappa Talawar v. Mallappa Kanchappa Kankanwadi
2019-01-07
B.V.NAGARATHNA
body2019
DigiLaw.ai
JUDGMENT : B.V. Nagarathna, J. Petitioner is plaintiff in O.S .No. 561/2011. The said suit is for seeking the relief of permanent injunction against the defendants. During trial, plaintiff filed an application seeking amendment of the plaint by filing an application under Order VI, Rule 17 of the Code of Civil Procedure, 1908. The contents of the amendment are as under; "For the reasons stated in the accompanying Affidavit, it is most humbly prayed that, the plaintiff may kindly be permitted to amend the plaint at page No. 2 in the para of description of suit property i.e. Para No. IV in the hand sketch map to the east word "property of defendant No. 1 measuring 12'.06" x 35" may kindly be permitted to delete and to insert in that place as "Property of Dr. Shetti Hospital", in 3rd page of plaint i.e. 1st line i.e. figure "60" " may kindly be permitted to delete in that place permitted to insert as "40" ". In the said para page No. 3 at 9th line after the word "the said" the new word "out of it" may kindly be permitted to insert, and in the 10th line of the said page figure "80"x30" (80x30ft)" may kindly be permitted to delete in that place permitted to insert as "82"x30" (82 x 30ft)", in the said line the figure "60" may kindly be delete and in to insert "40". In the said para last line the figure "80"x30" may kindly be permitted to delete and to insert "82" x 30" " in the said para in last line after the word instead of "60" may kindly be permitted to delete and to insert "40" in its place. In the said para after the figure "35" the new word "The said measurement is according to the original sale deed is in favour of Venkappa Tapashi who is the father of defendant No. 5" may kindly be permitted to insert for the same. In the plaint para No. IV(3) on page No. 4 on the 9th line after the word property then the new word "illegally" may kindly be permitted to insert. In the said para last line the word "restrict" may kindly be permitted to delete and the new words "not owner' may kindly be permitted to insert in that place.
In the plaint para No. IV(3) on page No. 4 on the 9th line after the word property then the new word "illegally" may kindly be permitted to insert. In the said para last line the word "restrict" may kindly be permitted to delete and the new words "not owner' may kindly be permitted to insert in that place. In the said last line after the word sale deed the new word "as there is no open space" be kindly permitted to insert. The in said para No. IV(5) at 7th line after the word defendant No. 1 "may" kindly be permitted to delete in its place "is not" word may kindly be insert by way of amendment, in the interest of justice and equity. Hence this application." 2. By the impugned order, dated 06.07.2017, the said application has been dismissed. Being aggrieved, the plaintiff has preferred this writ petition. 3. I have heard learned counsel for the petitioner and perused the material on record. 4. The contents of the amendment are noted. The suit is for permanent injunction. When a party seeks the relief of permanent injunction, it is necessary to state the actual measurement and the boundaries of the suit schedule property. That the plaintiff, at paragraph 3 of the plaint has given a hand-sketch map with requisite boundaries. The plaintiff has admitted measurement of the property in the original plaint. Thereafter, written statement has been filed. Issues have been framed. Plaintiff has examined three witnesses as P.Ws. 1 to 3. The said witnesses have also been cross-examined by the defendants. It appears that some answers were elicited from plaintiff's witnesses during the course of cross-examination. At that stage, the application seeking amendment of the plaint has been filed. 5. It is noted that the plaintiff has described the measurement of the suit property as 40" x 35", which is also indicated in the hand-sketch map, and the actual location of the suit property. However, by way of amendment, plaintiff has sought for several changes. The suit is of the year 2011. The application for amendment was filed on 17.03.2017 in the midst of trial.
However, by way of amendment, plaintiff has sought for several changes. The suit is of the year 2011. The application for amendment was filed on 17.03.2017 in the midst of trial. The Trial Court has observed that the plaintiff was not diligent in seeking amendment at an earliest point of time and that the amendment sought virtually changes the nature of the suit inasmuch as the measurement and the location of the suit schedule property as well as the boundaries are sought to be changed. In the circumstances, the Trial Court has rejected I.A. No. 16 filed under Order VI, Rule 17 of the Code of Civil Procedure, 1908. I do not find any infirmity in the impugned order. There is no merit in the writ petition. Writ petition is, hence, dismissed.