Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1386 (KAR)

Singegowda P. K v. Ningegowda @ Devaraja

2020-07-10

S.R.KRISHNA KUMAR

body2020
ORDER : 1. This petition takes exception to the impugned order dated 18.11.2015 passed in O.S.No.128/2011 by the Civil Judge and JMFC, Turuvekere, whereby the application, I.A.No.9 filed by the petitioner/plaintiff under Order VI Rule 17 of CPC seeking amendment of the plaint was rejected by the trial Court. 2. It is not in dispute that the petitioner, who was the plaintiff before the trial Court instituted a suit for declaration, permanent injunction and for other reliefs in respect of the suit schedule property described by him as Sy.No.153 (Old No.63/17) of Beechanahalli, Dabbeghatta Hobli, Turuvekere Taluk, measuring 2 acres 19 guntas. In the plaint, it was the specific contention put forth by the petitioner/plaintiff that the sole defendant/respondent had encroached upon the suit property to an extent of 20 guntas on its western side and consequently, petitioner is entitled to the aforesaid reliefs in the suit filed by him. 3. The defendant/respondent having contested the suit, the trial Court after framing issues permitted both sides to adduce oral and documentary evidence. After completion of evidence, at the instance of the plaintiff, Court Commissioner was appointed to conduct local inspection of the suit schedule property to ascertain the extent of alleged encroachment of the suit schedule property by the defendant. The Court Commissioner having submitted his report, the respondent/defendant has contested the said report by filing his objections. 4. At this stage, after noticing the report of the Court Commissioner, wherein it is allegedly stated that the extent of encroachment by the respondent/defendant was 30 guntas as against 20 guntas claimed by the petitioner, the petitioner filed an application - I.A.No.9 seeking amendment of the said portion in paragraph No.2 of the plaint by substituting the words from 20 guntas' to 30 guntas'. The said application was opposed by the respondent/defendant on various grounds. Firstly, it was contended that the said application having been filed after commencement of trial, the same was not maintainable in the light of the proviso to the order VI Rule 17 of CPC, which prohibits the parties from seeking amendment after commencement of trial unless due diligence is established by the parties seeking amendment. Firstly, it was contended that the said application having been filed after commencement of trial, the same was not maintainable in the light of the proviso to the order VI Rule 17 of CPC, which prohibits the parties from seeking amendment after commencement of trial unless due diligence is established by the parties seeking amendment. In this context, learned counsel for the respondent pointed out that in the absence of valid and necessary reason as to why the petitioner could not have sought for amendment despite exercise of due diligence, the present application - I.A.No.9 filed undisputedly at the stage of final arguments was not maintainable. Secondly, it was contended that the plaintiff has restricted his claim of alleged encroachment only to an extent of 20 guntas and as such, permitting of amendment by increasing the alleged extent of encroachment by 10 guntas by taking undue advantage of the report of the Court Commissioner was not permissible in law. Thirdly, it was contended that the proposed amendment was barred by limitation. By the impugned order, the trial Court accepted the defence put forth by the respondent and proceeded to dismiss the application - I.A.No.9. Aggrieved by the same, the petitioner/plaintiff is before this Court by way of present petition. 5. Learned counsel for the petitioner submits that the proposed amendment does not in any way change or alter the nature or character of the suit or its cause of action. Elaborating his submission, learned counsel submitted that the proposed amendment which is a fall out of the report of the Court Commissioner clearly indicates the extent of encroachment made by the respondent and as such, the proposed amendment is essential and necessary for the purpose of deciding the issues in controversy between the parties in as much as the primary issue involved in the suit is with regard to the encroachment of the suit schedule property by the respondent and the extent of encroachment. It is also contended that insofar as the contention urged on behalf of the respondent that the proposed amendment is barred by limitation is concerned, the question of limitation may be kept open and it is not necessary to adjudicate upon merits of the proposed amendment at the time of consideration of the application for amendment. It is also contended that insofar as the contention urged on behalf of the respondent that the proposed amendment is barred by limitation is concerned, the question of limitation may be kept open and it is not necessary to adjudicate upon merits of the proposed amendment at the time of consideration of the application for amendment. Learned counsel also contends that the impugned order passed by the trial Court is a non-speaking order, as such, the same has occasioned failure of justice warranting interference of this Court under Article 227 of the Constitution of India. 6. Per contra, learned counsel for the respondent would reiterate various grounds urged by him before the trial Court for resisting the application for amendment. 7. I have given my anxious consideration to the rival submissions and perused the material on record. 8. As rightly contended by learned counsel for the petitioner, the primary claim put forth by the petitioner in the suit before the trial Court is with regard to the alleged encroachment of the suit schedule property by the respondent on the western side of the property and the extent of encroachment. Though the plaintiff had restricted his claim for encroachment only to an extent of 20 guntas, the report of the Court Commissioner would prima facie indicate that the extent of alleged encroachment was 30 guntas' and not 20 guntas as claimed by the petitioner. At any rate, the question of alleged encroachment and the extent of alleged encroachment are the issues to be decided at the stage of final disposal of the suit, more particularly, having regard to the well settled principles governing the amendment of pleadings to the effect that at the time of considering the application for amendment, the merits of the proposed amendment cannot be gone into by the trial Court. It is therefore clear that the impugned order passed by the trial Court rejecting the application for amendment solely on the ground that the trial had commenced and had been completed, is incorrect and deserves to be set aside. 9. It is therefore clear that the impugned order passed by the trial Court rejecting the application for amendment solely on the ground that the trial had commenced and had been completed, is incorrect and deserves to be set aside. 9. Insofar as the contention urged on behalf of the respondent that the claim of alleged encroachment of 20 guntas as well as the additional extent of 10 guntas are barred by limitation is concerned, in view of the settled principle of law governing amendment of pleadings, I am of the considered opinion that the question with regard to the petitioner's claim insofar as it relates to 20 guntas or 30 guntas are left open to be decided by the trial Court at the time of final disposal of the suit. Further, all the rival contentions between the parties are left open to be urged before the trial Court. 10. In the result, I proceed to pass the following: ORDER (i) This writ petition is hereby allowed. (ii) The impugned order dated 18.11.2015 passed in O.S.No.128/2011 by the Civil Judge and JMFC, Turuvekere is hereby set aside. (iii) The application - I.A.No.9 filed by the petitioner-plaintiff is hereby allowed. (iv) Having regard to the prevailing Covid-19 exigency, petitioner is hereby directed to carry out the amendment and file the amended plaint as expeditiously as possible in the suit before the trial Court. (v) Upon the petitioner carrying out amendment and filing the amended plaint, liberty is hereby reserved in favour of the respondent to file his additional written statement to the amended plaint. (vi) It is made clear that the question of limitation urged by the respondent is hereby kept open to be adjudicated by the trial Court at the time of final disposal of the suit. (vii) Further, all other rival contentions between the parties on merits of their respective claims are also kept open to be urged before the trial Court which shall proceed to dispose of the suit in accordance with law.