Lokesh Reddy vs Msshivangi J. Nairi and Others

A.V. Chandrashekara, J.—Heard the learned counsel for the petitioner.

The present petitions are filed under Article 227 of Constitution of India challenging the order dated 7.1.2015 passed on I.As. 17 filed by defendant No. 4 in O.S. 5905/2007 and I.A. 18 filed by defendant in O.S. 5906/2007 which suits are pending on the file of XLIV Addl. City Civil & Sessions Judge, Bangalore.

O.S. 5905/2007 is filed by Smt. Shivangi and O.S. 5906/2007 is filed by Smt. Priyanka Nairi and the defendants are common in both these suits. Suits have been filed for relief of mandatory injunction. Defendant No. 4 has filed detailed written statement. After conclusion of evidence of plaintiffs, defendant No. 4 chose to file an application under Order 6 Rule 17 of CPC in both these suits requesting the Court to permit him to effect certain amendments to the written statement in paragraph 15 by way of adding 15(a) and (b). The said applications are supported by the affidavits sworn to by defendant No. 4 These applications came to be objected by filing written statement. Both these applications have been dismissed by order dated 7.1.2015. It is this common order which is called in question on various grounds as set out in the memorandum petition.

The learned counsel for respondents-plaintiffs has vehemently argued that trial court has passed a detailed order by relying on the decision of Hon''ble Apex Court in the case of Vidyabai and Others Vs. Padmalatha and Another, . Placing reliance on the said decision, the learned counsel has argued that these applications have been filed long after the closure of the evidence of plaintiff. He has drawn attention of this Court to Paragraph 10 of the said decision. Paragraph 10 is relevant and same is reproduced below:

"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

It is couched in a mandatory form. The court''s jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial."

What is argued by Sri. P.B. Raju, the learned counsel for the petitioner is that proposed amendment are only clarificatory in nature and no new pleading is forthcoming. It is argued that amendment sought to be done is only explanatory in nature and no new case is made out or the adversary is not put to surprise. It is further argued that the vendor of the plaintiff had no authority to execute the sale deed and it is in this regard amendment is sought by way of incorporating paragraph 15(a). He has further argued that some clarification is sought by way of amendment regarding boundaries and extents of the suit schedule property.

After going through the detailed written statement filed by defendant No. 4, it is evident that defendant No. 4 has vehemently denied the very sale deed relied upon by the plaintiff in the plaint. In paragraph 8 of the written statement, defendant No. 4 averred as follows:

"8...........infact there is no sites formed in that area then the question of construction on the alleged sites doesn''t arise and the other averments in that para area also denied and plaintiff is put to proof of the same."

Proposed amendment sought to be incorporated is only clarificatory in nature and they have not been introduced for the first time. Stand taken in the written statement is sought to be clarified so as to lead appropriate evidence when he has given an opportunity to do so. Though application filed for proposed amendment is after commencement of the evidence, proposed amendment is clarificatory in nature and plaintiffs is not put to surprise in any manner. In a suit for injunction, plaintiffs have to make out a clear case of identity of the property to seek the equitable relief of prohibitory and mandatory injunction more particularly for demolition of construction already put up. Even otherwise as per the principles enunciated in the Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, , plaintiff has to seek the comprehensive relief of declaration of title when the title set up by the plaintiff in respect of vacant site is emphatically denied.

Taking all these circumstances into consideration, the approach adopted by the trial court is incorrect and improper. Hence, the petitions are to be allowed by setting aside the impugned order.

Accordingly, petitions are allowed. The impugned order is set aside. In the light of the applications being filed at a belated stage, defendant No. 4 shall pay cost of Rs. 2,000/- on each of the applications to the plaintiffs. He shall not take unnecessary time to lead evidence. Parties to cooperate with the learned judge in early disposal of the matters.

Send a copy of this order to the Trial Court.