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2020 DIGILAW 242 (KAR)

SHAKUNTALA v. SHIVANAGOUDA

2020-01-27

S.G.PANDIT

body2020
ORDER : The petitioners/defendant No.1 and 2 in OS No.245/2006 on the file of the Prl. Senior Civil Judge and CJM, Dharwad are before this Court under Article 226 of the Constitution of India aggrieved by the order dated 16.08.2016 on interlocutory application filed under Order 6 Rule 17 of CPC which is allowed. 2. Heard the learned counsel for the petitioners and learned counsel for the respondents/plaintiffs. 3. Learned counsel for the petitioners would submit that the suit was initially filed for declaration of the sale deed as null and void and for permanent injunction. Defendant No.1 has taken the possession of the suit schedule properties on 10.08.2009 pursuant to the order passed in EP No.55/2005. The plaintiffs/respondents slept over the matter and only on 16.02.2016 filed an application for amendment seeking prayer of possession, which is allowed by the trial Court. It is his contention that the trial Court did not take into consideration the question of limitation and further submits that the order of the trial Court allowing the amendment application is wholly erroneous which requires to be set-aside. 4. Per contra, learned counsel for the respondents/plaintiffs would submit that the trail Court rightly allowed the amendment application. Based on the subsequent developments which had taken place during the pendency of the suit, the plaintiffs sought for additional prayer with regard to the possession. 5. The suit was initially filed for declaration of the sale deed as null and void and for permanent injunction. It is on record that the defendant No.1 took possession of the suit schedule property on 10.08.2009 pursuant to the order passed in EP No.55/2005. Admittedly, the amendment application came to be filed on 16.2.2016 seeking amendment of the plaint to add the averments with regard to dispossession and seeking prayer to hand over the actual vacant possession of the suit schedule property. The trial Court felt that since the plaintiffs are dispossessed during the pendency of the suit pursuant to the order passed in EP No.55/2005 and since the petitioners are seeking for amendment based on the subsequent developments, allowed the amendment application and further it was observed that the nature of the suit would not change. 6. It is the grievance of the petitioners that the question of limitation is not looked into by the trial Court and the amendment would go back to the date of presentation of the plaint. 6. It is the grievance of the petitioners that the question of limitation is not looked into by the trial Court and the amendment would go back to the date of presentation of the plaint. It is open for the petitioners/defendants to urge the contention with regard to limitation in the additional written statement, if not already filed on allowing the amendment. Further, it is open for the petitioners to seek for framing additional issue with regard to limitation by filing necessary application. If such application is made, the trial Court would consider the same in accordance with law. The amendment application was made on 16.2.2016 and the application is allowed by the impugned order dated 16.8.2016. The amendment shall take into effect from the date of the application i.e. 16.2.2016, which would take care of the interest of the petitioners/defendants. 7. With the above observations, the writ petition is disposed of.