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2023 DIGILAW 1032 (KAR)

Raghunath Shetty v. Kusuma J. Shetty

2023-08-31

S.G.PANDIT

body2023
JUDGMENT 1. The petitioners/defendants in O.S.No.1449/2018 on the file of the III Additional Civil Judge (Jr.Dn.) and JMFC, Mangalore are before this Court under Article 227 of the Constitution of India, against the order dtd. 25/3/2023 allowing I.A.No.8 filed by the respondents/plaintiffs under Order VI Rule 17 of CPC to amend the plaint to add certain facts as well as to add prayer of mandatory injunction. 2. Heard learned counsel Sri.B.S.Sachin for petitioners/defendants and learned counsel Sri.Abhishek Marla for respondents/plaintiffs. Perused the writ petition papers. 3. Learned counsel for the petitioners would submit that the suit of the respondents/plaintiffs was for permanent prohibitory injunction restraining the defendants from trespassing into plaint schedule property and thereby interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property. It is submitted that on framing of issues and before commencement of evidence of the plaintiffs, the plaintiffs filed I.A.No.8 under Order VI Rule 17 of CPC seeking permission to amend the plaint to include certain facts and also to include additional prayer of mandatory injunction to give vacant possession of the illegal encroached portion by removing illegal construction put up by the defendants. The said application was opposed by the petitioners/defendants stating that the amendment if allowed would change the nature of the suit as well as cause of action. Further, it is stated that the amendment sought by the plaintiffs are to overcome the contentions raised by the defendants in their written statement and the amendment if allowed would prejudice the case of the petitioners/defendants. 4. The trial Court under impugned order allowed I.A.No.8 filed under Order VI Rule 17 of CPC to amend the plaint against which, the petitioners/defendants are before this Court. 5. Learned counsel Sri.B.S.Sachin for petitioners/ defendants would submit that the amendment as sought by the plaintiffs would entirely change the nature of suit and cause of action. It is further submitted that the amendment application is filed to overcome or to get over the contentions of the petitioners/defendants raised in their written statement. The suit is one for permanent prohibitory injunction to restrain the defendants from trespassing into the plaint schedule property, whereas by way of amendment, mandatory injunction is also sought to hand over possession by removing the construction which is impermissible. The suit is one for permanent prohibitory injunction to restrain the defendants from trespassing into the plaint schedule property, whereas by way of amendment, mandatory injunction is also sought to hand over possession by removing the construction which is impermissible. Learned counsel would further submit that the trial Court on the application filed by the respondents/plaintiffs under Order XXXIX Rules 1 and 2 of CPC has held that the respondents/plaintiffs are not in possession of the suit schedule property and has observed that the petitioners/defendants have constructed a cowshed. When such being the finding, the respondents/ plaintiffs could not have alleged that the petitioners/ defendants have trespassed into the suit schedule property subsequent to the order rejecting their application filed under Order XXXIX Rules 1 and 2 of CPC. Learned counsel would submit that the impugned order allowing the amendment application filed by the plaintiffs would be opposed to the principles laid down by the Hon'ble Apex Court in the case of REVAJEETHU BUILDERS AND DEVELOPERS v/s NARAYANA SWAMY AND SONS AND OTHERS reported in (2009)10 SCC 84 . Further, learned counsel inviting attention of this Court to paragraph 57 of the above said judgment would submit that the trial Court failed to examine whether amendment sought is bonafide or malafide or whether the amendment would cause prejudice to the other side. Further, learned counsel would submit that if the plaintiffs in their pleadings claim that the petitioners/defendants trespassed into the property, the prayer for mandatory injunction itself would not be maintainable. Thus, learned counsel would pray for allowing the writ petition and to set aside the impugned order allowing amendment of plaint. 6. Per contra, learned counsel Sri.Abhishek Malra for respondents/plaintiffs would support the order passed by the trial Court and submits that the amendment sought is to add certain facts and relief of mandatory injunction is consequential to the main prayer sought in the plaint. Further, learned counsel would submit that the amendment sought is a pre-trail amendment and such pre-trail amendments are allowed since the defendants would get an opportunity to file additional written statement. 7. On hearing the learned counsel for the parties and on perusal of the writ petition papers, the only question which falls for consideration is as to whether the impugned order requires interference by this Court. 8. 7. On hearing the learned counsel for the parties and on perusal of the writ petition papers, the only question which falls for consideration is as to whether the impugned order requires interference by this Court. 8. Answer to the above point would be in the negative for the following reasons: Order VI Rule 17 of CPC provides for amendment of pleadings. In terms of the said provision the Court may at any stage of the proceedings allow either of the parties to alter or amend pleadings in such manner and on such terms, as may be just and necessary for the purpose of determining real questions in controversy between the parties. But the proviso to sub-rule puts restriction on the Court, while considering the amendment application after commencement of trial. If the amendment sought is after commencement of trial, unless the court is satisfied with regard to due diligence that the party could not have raised the matter before commencement of trial, the Court would not get jurisdiction to allow such application. 9. In the case on hand, the suit initially filed is for judgment and decree of permanent prohibitory injunction, restraining the defendants from trespassing into the plaint schedule property and thereby interfering with the peaceful possession and enjoyment of the plaint schedule property and constructing any structure. The amendment sought under I.A.No.8 to add certain facts and also to add prayer for mandatory injunction and by removing illegal structure is before commencement of trial. In other words, the amendment sought is a pre-trail amendment. The pre-trial amendment could be allowed in terms of Order VI Rule 17 of CPC on such terms, if the same is necessary for the purpose of determining real questions in controversy between the parties. Under I.A.No.8, the amendment sought reads as follows: "That the Plaintiffs submit that Defendant high handedly and unlawfully during the pendency of suit and during hearing of I.A. No.VII filed under Order XXXIX, rule 1 and 2 of CPC, has completed his act of trespass and has illegally constructed structure inside the plaint schedule property owned and possessed by Plaintiffs by sheer force, highhandedly and that too without obtaining any permission from City Corporation, Mangalore. On a written complaint given by the Plaintiff to City Corporation, Mangalore, the concerned Assistant Town Planning Officer visited the plaint property and on visualizing the actual situation, asked the Defendant to stop the construction being carried out inside the plaint schedule property and also asked the Defendant to get his property documents to be placed before the said officer on 19/11/2022. but the Defendant has not visited the said officer at City Corporation but illegally continued the construction. The illegal constructed portion of the building has been completed by the Defendant, which is clearly shown in the photographs filed herewith. Therefore, the Plaintiffs have no alternative efficacious remedy, other than to file this Suit for Mandatory Injunction to direct the Defendants to remove the illegal construction put up by him inside the Plaint property owned by Defendants." After Para No.III add Para No.III (a) as follows: "That in continuation of the original cause of action, subsequently a fresh cause of action has been arisen on 08/10/2022 also on 04/11/2022 and subsequently, on which dates the Defendant with his men and materials having completed its act of trespass and by constructing a structure inside the plaint schedule property by total illegal means. Consequently at Mangalore where the suit schedule property is situated within the jurisdiction of this Hon'ble Court." Delete Para IV of the Plaint and substitute the same as fresh Para No.IVA as follows: "The value of the Suit claim relief of Mandatory Injunction is valued at Rs.1, 000.00 for Injunction and a Court fee of Rs.25.00 is paid under Karnataka Court Fee and Suit Valuation Act, 1958." After Para V i.e, at relief column delete Para No. "A" and substitute the same as: "A. Directing the Defendant, his men, servants, agents etc. to give vacant possession of the illegal encroached portion, by removing the illegal construction put up by Defendants by sheer force, within time fixed by court and if Defendants fail to remove the illegal construction put up by him in the Plaint property, to get it done by the Plaintiffs, through process of law at the expenses of Defendant." A perusal of the above amendment sought would reveal that the plaintiffs intend to add facts relating to trespassing by the defendants and illegal construction during the pendency of the suit. Further, to explain with respect to cause of action for seeking prayer of mandatory injunction on 8/10/2022 and 4/11/2022 when the defendants completed their act of trespassing and constructing structure inside the plaint schedule property. The prayer sought i.e., mandatory injunction for possession, removing illegal structure is consequential to the prayer of permanent prohibitory injunction restraining the defendants from trespassing into plaint schedule property. The contention of the petitioners/defendants that the amendment would change the nature of suit and cause of action and the prayer for mandatory injunction itself is not maintainable would not stand to reasons, when the plaintiffs allege trespassing. All contentions raised herein could be raised or taken in the additional written statement that would be filed by respondents/plaintiffs pursuant to allowing of amendment. Mere inclusion or allowing of amendment application would not entitle the plaintiffs for the relief sought or mere allowing of amendment would not result in allowing of the prayer sought by the plaintiffs. The plaintiffs have to prove their case by producing cogent evidence and material on record. Since it is a pre-trail amendment, no prejudice would be caused to the petitioners/defendants. 10. The Hon'ble Apex Court in REVAJEETHU BUILDERS AND DEVELOPEERS case (supra) has laid down certain guidelines while considering the application for amendment. In terms of those guidelines, if the case of respondents/plaintiffs who have filed application for amendment is examined, I do not find any error in the order passed by the trial Court in allowing the amendment application. In REVAJEETHU case, one of the guidelines laid down is that the Court has to examine whether refusing amendment would infact lead to injustice or lead to multiple litigations. In the instant case, if the amendment is disallowed, it would result in multiplicity of proceedings. If the plaintiffs succeed in the suit for prohibitory injunction without mandatory injunction, they would have to resort for one more suit. Allowing of amendment application would result in avoiding multiplicity of proceedings and in minimizing the litigation. 11. In the instant case, if the amendment is disallowed, it would result in multiplicity of proceedings. If the plaintiffs succeed in the suit for prohibitory injunction without mandatory injunction, they would have to resort for one more suit. Allowing of amendment application would result in avoiding multiplicity of proceedings and in minimizing the litigation. 11. The Hon'ble Apex Court in the case of RAJESH KUMAR AGARWAL AND OTHERS v/s K.K.MODI AND OTHERS reported in (2006) 4 SCC 385 was considering a case of amendment under Order VI Rule 17 of CPC, has observed that rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. The relevant paragraphs 15, 18 and 19 read as follows: "15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to subserve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. 19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case." 12. For the reasons recorded above, I find no merit in the writ petition and accordingly the writ petition stands dismissed.