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2021 DIGILAW 468 (KAR)

T. A. Puttanna Since Dead By His Lrs v. Chikkanna, S/o. Late Muniyappa

2021-03-23

KRISHNA S.DIXIT

body2021
ORDER : Petitioners being the plaintiffs in an injunctive suit in O.S.No.15/2007 are knocking at the doors of writ court for assailing the order dated 06.03.2021, a copy whereof is at Annexure-J, whereby the learned III Addl. Civil Judge, Bengaluru Rural District having rejected their application in I.A.No.6 filed under Order VI Rule 17 r/w sec.151 of CPC, 1908 has declined leave to amend the plaint for converting the suit into one for declaration & possession on the ground of adverse possession. 2. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons: (a) The subject suit was for a decree of injunction; it was filed in the year 2007; the defendant filed his Written Statement in April 2009 resisting the suit specifically at para 13 thereof taking up the contention as to a bare injunctive suit being not maintainable, in the circumstances averred in the plaint; this apart, at para 6 of the WS, the defendant had denied possession of the petitioners and this was way back in April 2009; the present application has been made on 19.12.2019 ie., more than ten years after the filing of the WS; thus the request for amendment of the plaint is highly belated and there is no plausible explanation therefor; such belated applications cannot be favoured as rightly held by the learned Judge of the court below; the reliance placed by the petitioners on the decision of the Apex Court in RAVINDER KAUR GREWAL vs. MANJEET KAUR, 2019 (2) KAR. L.R. 329 SC does not come to their aid, fact matrix thereof being miles away from that in the case at hands. (b) After the pleadings were complete, issues were framed and trial has also been accomplished; when the matter is posted for arguments on 07.06.2016; the subject application has been moved only on 19.12.2019 ie., more than three years after the stage of argument was attained; this is exactly where the amended proviso to Order VI Rule 17 with full force becomes invocable and that interdicts any application for amendment of pleadings being made; no special circumstances are pointed out for carving out an exception to the rule enacted in the proviso, despite passionate arguments of the counsel for the petitioners. (c) In their affidavit supporting the amendment application petitioners have pleaded that their predecessor namely, the original plaintiff Mr. T.A. Puttanna was an illiterate and therefore the plaint was not properly structured in the sense that the decree for declaration & possession was not sought for; this is too much to say the least; original plaintiff Puttanna having died, his L.Rs. ie., the present petitioners came on record in the court below way back in the year 2013 and the amended plaint was filed on 04.06.2013, a copy whereof is at Annexure-A; nothing prevented the petitioners from seeking leave for the amendment of the kind at that time itself; no explanation is offered either in the application or in the supportive affidavit for not doing it then; thus the version of the petitioners apart from being incredible does not come to their aid even if it is taken with its face value. (d) The above apart, petitioners are only the legal representatives of the deceased original plaintiff Mr. Puttanna who has kicked the bucket long ago; he had not sought for the relief nor pleaded the grounds in support of the relief now sought to be introduced by the petitioners in the form of amendment; ordinarily, the right of the L.Rs. of the deceased to take up plea and prove the same is co-terminus with that of the deceased part under whom they claim. (e) Lastly, there is some unconscionability attributable to the petitioners going by what has been averred in the plaint in support of the prayer for the injunctive decree and what has been stated in the subject application for amendment; the original plaint is structured to some extent on the basis of some stray entry in the RTC during 1976-77; plaint does not mention how the original plaintiff gained entry to the subject property that too four decades ago; he had also pleaded about the agreement to sell and that he had paid the consideration of Rs.1,000/-being the full price for the land measuring 2 Acres 10 Guntas; that being the position all of a sudden a turn around is being made for re-structuring the suit on the ground of adverse possession and this is sought to be done by way of amendment, when more than thirteen years have lapsed since institution of the suit; much is not being stated, lest the suit proceedings be prejudiced. In the above circumstances, this writ petition being devoid of merits is liable to be rejected in limine and accordingly it is. Learned Judge of the court below is requested to dispose off the suit before the end of the year 2021, all contentions of the parties having been kept open. The observations herein above made being confined to disposal of the writ petition shall not influence the decision making in the suit.