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2022 DIGILAW 396 (KAR)

Pavithra v. K. S. Venkataram

2022-03-22

E.S.INDIRESH

body2022
JUDGMENT 1. This Writ petition is filed by the plaintiff in Original Suit No.169 of 2011 on the file of the VI Additional Civil Judge and JMFC, Tumakuru (for short, hereinafter referred to as 'trial Court'), challenging the order dtd. 7/6/2021, dismissing the application filed by the plaintiff under Order VI Rule 17 read with Sec. 151 of the Civil Procedure Code. 2. The relevant facts for adjudication of this writ petition are that the plaintiff has filed suit for permanent injunction. The said suit has been contested by the defendant by filing written statement. During the pendency of the suit, the plaintiff has filed application seeking amendment of plaint as per AnnexureC. The said application was resisted by the defendant. The trial Court, after considering the material on record, by order dtd. 7/6/2021, dismissed the application on the ground that the plaintiff has not shown due diligence in filing the said application. Being aggrieved by the dismissal of the applciation, plaintiff has preferred this writ petition. 3. I have heard Sri. Patel D. Kare Gowda, learned counsel appearing for petitioner and Sri. V.B. Siddaramaiah, learned counsel appearing for respondent. 4. Sri. Patel D. Kare Gowda, learned counsel appearing for the petitioner contended that originally the plaintiff has filed suit for permanent injunction. Later, the plaintiff wanted to incorporate the prayer seeking relief of mandatory injunction against the defendant. He further contended that the trial Court ought to have accepted the application, since the said incorporation of the prayer would not change the nature of the suit. Hence, he sought for interference of this Court. 5. Per contra, Sri. V.B. Siddaramaiah, learned counsel appearing for the respondent sought to justify the impugned order and also reiterated the averments made in the statement of objections filed in the writ petition. 6. Having heard the learned counsel appearing for parties, I have carefully considered the finding recorded by the trial Court. Undisputably, the plaintiff has filed suit seeking relief of permanent injunction in the year 2011 and sought to amend the plaint by filing an application in the year 2020 seeking relief of mandatory injunction to declare that the defendant has completed the construction by violating the building plan sanctioned by the City Municipal Council. Undisputably, the plaintiff has filed suit seeking relief of permanent injunction in the year 2011 and sought to amend the plaint by filing an application in the year 2020 seeking relief of mandatory injunction to declare that the defendant has completed the construction by violating the building plan sanctioned by the City Municipal Council. It is well established principle of law that while considering the application under Order VI Rule 17 of the Civil Procedure Code, the applicant has to show due diligence in the affidavit accompanying the application to satisfy the Court that he has approached court with clean hand and at the earliest stage. Perusal of the finding recorded by the trial Court would indicate that the plaintiff sought amendment in the year 2020 stating that the defendant has already constructed the building which is in violation of sanctioned plan of the City Municipal Council. Taking into consideration the finding recorded by the trial Court and the law declared by Hon'ble Apex Court in the case of GAYATHRI WOMENS WELFARE ASSOCIATION vs. GOWRAMMA AND ANOTHER reported in (2011)2 SCC 330 , wherein, it is observed that the purpose of provision of Order VI Rule 17 of the Civil Procedure Code, enabling fling of a counter claim is to avoid multiplicity of judicial proceedings and to save upon the Courts' time and also to exclude the inconvenience to the parties. In that view of the matter, I am of the view that the trial Court is justified in rejecting the application filed by the plaintiff. Accordingly, writ petition is dismissed.