Palakshayya, S/o Shivamallayya v. Channaveerayyaswamy, S/o Chandrayya
2020-01-20
S.G.PANDIT
body2020
DigiLaw.ai
ORDER : 1. The petitioner is before this Court under Article 227 of the Constitution of India challenging the order dated 11.08.2016 passed on I.A. No.5 in O.S. No.185/2013 by the Principal Civil Judge and JMFC, Gangavathi, vide Annexure-E, by which the respondents/plaintiffs’ application for amendment filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, is allowed. 2. The petitioner is the defendant and the respondents are the plaintiffs in O.S. No.185 of 2013 filed for declaration of title and permanent injunction in respect of the suit schedule property. The respondents, when the suit was at the stage of cross-examination of P.W.1, filed I.A. No.5 under Order VI Rule 17 of CPC for amendment of the plaint which reads as follows: “PROPOSED AMENDMENT 1. At para No: 4 of the plaint by deleting the word during the life time of the Sons in the same place to be inserted as Shivamallayya and Kalganthayya and the son of Late Rajashekrayya by name chandrayya who were legal hires. 2. At para No: 12 of the plaint at 4th line after the word same to be inserted as and also denied the title of the same. 3. At para No: 16 of the plaint at 3rd line after the word same to be inserted as and also denied the title of the same. 4. After completion of the Para No: 16 to be inserted as new Para as Para No: 16(A) That, the defendant has on 20-03-2016 after completion of the cross of the plaintiff No: 1 has forcibly illegally without any authority with high handedness by taking the undue advantage of the innocence of the plaintiffs No: 1 & 2 forcibly dispossessed these plaintiffs from the suit land by denying the title of these plaintiffs over the suit land, as such these plaintiffs has sought the alternative relief of recovery of possession. 5. At para No: 18 of the plaint at 3rd line after the numeric word 24 to be deleted (a) in the same place to be inserted as (b). 6. At para No: 18 of the plaint at 7th line after the word sufficient to be inserted as and for the relief of Recovery of possession Court Fee of Rs.25/-is paid under section 24(a) of K.C.F. & S.V. Act 7.
6. At para No: 18 of the plaint at 7th line after the word sufficient to be inserted as and for the relief of Recovery of possession Court Fee of Rs.25/-is paid under section 24(a) of K.C.F. & S.V. Act 7. At prayer column at page No: 4 of the plaint after completion of the relief No: 4 new relief has to be inserted as relief No: 5) That alternatively it is prayed that if at all the Hon’ble court is unable to grant relief for permanent injunction under the facts and circumstances of the case it is requested to order for Recovery of possession 8. At Schedule of the plaint at North boundary the word Land of Channaveeryaa to be deleted and in the same place to be inserted as Land of Rudramurthayya S/o Kalaganathayya 9. At Schedule of the plaint at South boundary the word Land of Rudramurthyswamy to be deleted and in the same place to be inserted as Lands of Shashidharayya S/o Chandrayya & Mallikarjuna S/o Chandrayya.” The said application was opposed by the petitioner/defendant on the ground that, if the amendment is allowed, the entire nature of suit would change and that P.W.1 in his evidence has admitted that the defendant was in possession since 1996. The Trial Court under the impugned order allowed the amendment application and permitted the plaintiffs to amend the plaint which is impugned in this writ petition. 3. Heard the learned counsel for the petitioner/defendant and the learned counsel for the respondents/plaintiffs. 4. The suit is one for declaration of title and for permanent injunction in respect of the suit schedule property. The plaintiffs stated in the suit that they are in possession of the suit schedule properties. In the amendment application, the plaintiffs stated that subsequent to cross-examination of P.W.1 on 20.03.2016, the plaintiffs were forcibly dispossessed from the suit schedule property and also sought for alternative prayer of recovery of possession. The petitioner/defendant relies mainly on a stray sentence in the cross-examination to say that when the plaintiffs admitted themselves that the defendant was in possession from 19.06.1991, now it is not open for them to say that the plaintiffs were forcibly dispossessed from 20.03.2016 and seek recovery of possession by way of amendment. A stray sentence in the cross-examination cannot be the basis to consider the amendment application.
A stray sentence in the cross-examination cannot be the basis to consider the amendment application. If the evidence is read in its entirety, it would not support the case of the petitioner/defendant. Since the plaintiffs/respondents have sought for amendment based on subsequent events that too, which had taken place during the pendency of the suit, the Trial Court has rightly allowed the amendment application. Lastly, the learned counsel for the petitioner contended that the question of limitation would arise for amending the prayer for recovery of possession. With regard to limitation, it is always open for the defendant, the petitioner herein, to seek for framing of additional issue on the question. Hence, in my opinion, it is not a case for interference under Article 227 of the Constitution of India. 5. Accordingly, the writ petition stands rejected. However, the petitioner/defendant is at liberty to file additional written statement within four weeks from the date of receipt of a certified copy of this order. Any observation made in the course of the above order shall not influence the Trial Court while disposing of the suit. All contentions of both parties are left open.