T. C. Nagaraja, S/o Late Chikkanna v. P. Anjinappa Since Deceased Rep. By His Lrs
2021-01-07
KRISHNA S.DIXIT
body2021
DigiLaw.ai
ORDER : Petitioner being the plaintiff in a declaration suit in O.S.No.95/2010, has invoked the writ jurisdiction of this court for assailing the orders whereby the request for amendment of the Written Statement was allowed and the request for amendment of the plaint, was disallowed; that is how these two Writ Petitions arise. 2. After service of notice, the contesting respondents having entered appearance through their counsel, resist the Writ Petitions making submission in justification of the impugned orders and the reasons on which they have been structured. 3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in W.P.No.19196/2017 and declines indulgence in W.P.No.9659/2016 for the following reasons: (a) Admittedly, the declaration suit is of the year 2010; issues having been framed, the trial having been accomplished, the respondent-defendant moved the application seeking amendment of the Written Statement which has been favoured by the learned Judge of the court below vide order dated 6.2.2016 and accordingly, amended Written Statement has also been filed; this triggered the petitioner to seek leave to amend his plaint; however, that has been negatived by the learned Judge vide order dated 25.02.2016; where Written Statement is amended and that necessitates amendment of plaint, the request for leave to amend ordinarily has to be granted subject to all just exceptions into which argued case of the parties does not fit; this aspect having not been kept in mind by the learned Judge of the court below, there is an error apparent on the face of the record. (b) Since petitioner on the basis of the leave granted for amending the Written Statement, has sought for amendment of his plaint, he may not be justified in laying a challenge to the order granting leave to amend the Written Statement; in fact, he has acted on the said order granting leave to amend the Written Statement and therefore, an estopel operates against him from laying a challenge thereto.
(c) There is another legal lacuna in the impugned order denying leave to amend the plaint i.e., ordinarily, in the suits relating to title dispute, courts need to be little flexible in treating the request for amendment of the pleadings so that a complete adjudication of the lis takes place; it is so notwithstanding the rigor enacted by the Parliament in the Proviso to Order VI Rule 17 of CPC, as has been observed by the Courts time and again; this approach has not been adopted by the learned Judge of the court below. (d) Going by the battle lines drawn by the parties by filing their pleadings, no prejudice would be caused to anyone if the amendment sought for by the petitioner is also granted by way of reciprocity since such a leave is already granted to the respondent-defendant with which he has amended the Written Statement; contra view will be incongruous. In the above circumstances, W.P.No.19196/2017 is favoured and the impugned order dated 25.2.2016 is invalidated; petitioners’ subject application in I.A.No.22 filed u/o VI Rule 17 of the Code having been favoured, leave is accorded for amending the plaint as sought for. Petitioners’ case in W.P.No.9659/2016 laying a challenge to the order dated 6.2.2016 whereby the respondent-defendants application in I.A.No.21 filed under the very same provisions has been allowed for amending the Written Statement, is dismissed. The petitioner shall file the amended plaint within two weeks and the respondents may file the amended Addl. Written Statement within next two weeks. Since suit is of the year 2010, the learned Judge of the court below is requested to try & dispose off the same within an outer limit of nine months and report compliance to the Registrar General of this Court. No costs.