Nagaraj vs Balaji

S.N. Satyanarayana, J.—The plaintiff in O.S. No. 266/2007 pending on the file of the I Addl. Civil Judge (Jr. Dn) Gulbarga, has come up in this petition impugning the order dated 25.08.2014, in rejecting his application under Order VI Rule 17 CPC dated 04.08.2014. Admittedly, the suit in O.S. No. 266/2007 is filed by the petitioner herein for the relief of perpetual injunction restraining the first defendant or anybody claiming or interfering with the peaceful possession and enjoyment of the suit scheduled property bearing No. 8-1278/1B situated at Nehru Gunj, Gulbarga.

It is not in dispute that in the said suit first defendant-Balaji was duly served and he has also filed his written statement contending that he is the absolute owner of suit scheduled property having purchased the same from one Smt. Sangamma-grand mother of petitioner herein under a registered sale deed. He has also stated in the written statement that the suit which is filed by the plaintiff-petitioner herein is a false, frivolous, and fictitious. That immediately after sale of the property by Smt. Sangamma, she lodged another frivolous suit in O.S. No. 273/1996, wherein it is not only the first defendant-respondent herein but the father of the plaintiff was also one of the defendant and the said suit came to be dismissed in the year 2004. It is thereafter the petitioner herein clandestinely got his name entered in the revenue records of corporation with the sole intention of creating obstruction to the title and enjoyment of the property by the first defendant. It is seen that the evidence on behalf of both the parties is completed. When the matter is at the stage of final arguments and subsequent to the reply on behalf of first defendant, the present application in IA under Order VI Rule 17 CPC is said to be filed.

The first respondent herein who is first defendant in the Court below has opposed the said application on the ground that the amendment is more in the nature of trying to cure the defect in the pleadings in the plaint so as to get over the evidence and documents, which are on record to substantiate the title and ownership of the first defendant-first respondent herein. It is seen that the trial Court on proper appreciation of materials available on record, has dismissed the said application by order dated 04.08.2014, which is sought to be impugned in this proceedings.

Heard the learned counsel appearing for the petitioner Perused the order impugned along with copy of the plaint in O.S. No. 266/2007 and also the written statement along with the application filed under Order VI Rule 17 of CPC and objections filed there to. On going through the same it is seen that the order impugned passed by the learned I Addl. Civil Judge (Jr. Dn) Gulbarga, appears to be just and proper. In the facts and circumstances of the case it is clearly seen that the intention of plaintiff in filing the said application is nothing but to make an improvement in the plaint, which was filed by him at the first instance and also to get over the evidence and other pleadings which has come on record.

In that view of the matter this Court find that the attempt of the plaintiff in trying to seek amendment is nothing but an attempt to take over the benefit which has come on record in favour of the defendant because of the defective pleadings which was taken by the plaintiff. This Court find that no justifiable grounds are made out to consider this writ petition filed impugning the order dated 25.08.2014 passed in O.S. No. 266/2007 on the file of the I Addl. Civil Judge (Jr. Dn) Gulbarga. Accordingly, the same is dismissed. In view of the fact that it is a frivolous litigation initiated to create harassment to the respondent, it is made clear that the petitioner herein shall deposit a sum of Rs. 2,000/- as cost to the first defendant in the original suit and the same shall be deposited by him in the trial Court within 10 days from today, failing which the cost awarded in this writ petition shall be included in the cost to the plaint which the first defendant can recover by levying execution for recovery of the same.