Rajanna vs Puttamma and Others

Budihal R.B., J.—1. This petition is filed by the petitioner-defendant No. 1 requesting the Court to quash the order dated 03.10.2015 passed on I.A. No. 7 in O.S. No. 183/2007 on the file of the Addl. Civil Judge and JMFC, Gubbi, which is produced at Annexure-E.

Heard the arguments of the learned counsel appearing for the petitioner-defendant No. 1 and the learned counsel appearing for respondent Nos. 1 to 8-plaintiffs.

Learned counsel for the petitioner-defendant No. 1 during the course of his arguments has submitted that plaintiff filed the suit for declaration of his ownership and also for permanent injunction as against petitioner-defendant. Petitioner has filed the written statement in the said suit; issues were framed and the matter went for trail. He has also submitted that earlier plaintiff has filed an application under Order 1 Rule 10(2) CPC requesting the Court to implead the proposed parties as defendant Nos. 2 to 9 in the said suit. Though defendant No. 1 contested the said application, but the Trial Court allowed the said application and the proposed parties were brought on record as defendant Nos. 2 to 9. He has submitted that when the summons were issued to the proposed defendants after they were brought on record, inspite of service of summons, they were not appeared and they were placed ex-parte.

It is further submitted by the learned counsel for the petitioner that plaintiff No. 1, who has been examined by filing the affidavit by way of examination-in-chief, was not subjected for cross-examination; then, the son of plaintiff No. 1 has been examined as P.W. 2 and he has been cross-examined in the matter. Thereafter, defendant No. 1 was examined and his cross-examination was also done. In the meanwhile, the plaintiff has filed an application under Order 6 Rule 17 of CPC seeking the amendment of prayer column in the suit. He has submitted that objections were filed to the said application stating that such amendment at that stage cannot be allowed by the Court; inspite of that, the Trial Court allowed the said amendment application. Hence, he has submitted that firstly the proposed amendment changes the nature of the suit and it was the application filed after commencement of the evidence in the matter and it was also not established by the plaintiff that his case comes under the proviso to Order 6 Rule 17 of CPC. It is also submitted that the Trial Court has not considered the said legal aspect in the matter, though the arguments were submitted on these points, the Trial Court ultimately allowed the amendment application. Therefore, he has submitted that the said order passed by the Trial Court is illegal and not sustainable in law. In support of his contention, learned counsel for the petitioner-defendant No. 1 has relied upon the following decisions:

i. , AIR 2009 SC 1948 in the case of Alkapuri Co-operative Housing Society Ltd. v. Jayantibhai Naginbhai (Deceased) Thr. L.Rs. and relied upon the relevant paragraph Nos. 15, 16 and 17.

ii. , AIR 2009 SC (Supp) 2897 in the case of M/s. Revajeetu Builders and Developers v. M/s. Narayanaswamy and Sons and Ors. and relied upon the relevant paragraph Nos. 67, 68, 69 and 70.

Hence, he has submitted to allow the petition and to set-aside the order passed by the Trial Court by dismissing the amendment application.

Per contra, learned counsel for respondent Nos. 1 to 8-plaintiffs during the course of his arguments has submitted that, at the first instance when the suit was filed plaintiff alone has sought the declaration that he is the absolute owner of the suit schedule property and also sought for injunctory reliefs against the defendant in the said suit. But subsequently, when the application was filed under Order 1 Rule 10 of CPC to bring the proposed parties on record as defendants, was allowed and they were impleaded in the said suit as defendants, it was necessary for the plaintiffs to seek the amendment with regard to the prayer in the said suit. He has submitted that in spite of plaintiff alone claiming declaratory relief of ownership, it is their claim that plaintiffs along with defendant Nos. 2 to 9 be declared as owners of the schedule property. He has also submitted that so far as injunctory relief is concerned, it is to be against defendant No. 1. Therefore, by filing the proposed amendment application, plaintiffs wanted to clarify those aspects. It is also submitted that by the proposed amendment, nature of the suit will not be changed as the suit is for declaratory relief and after the amendment also it remains the same.

So far as the contention of the other side that after issuing the summons to the proposed defendant Nos. 2 to 9, they remained ex-parte and not appeared in the matter nor they have pleaded in the suit is concerned, learned counsel has submitted that the said statement is not correct, one of the proposed defendant i.e., Gangamallaiah, has filed the written statement and same has been adopted by the other defendants. He has further submitted that in view of these facts and circumstances in the case on hand, the Trial Court allowed the application. Hence, no illegality has been committed by the Trial Court in allowing such application. Hence, he has submitted that there is no merit in the petition and same is to be rejected.

I have perused the grounds urged in the petition, impugned order passed by the Trial Court dated 03.10.2015 on the amendment application, so also I have perused the pleadings of the parties, copies of which are produced, and the amendment application with supporting affidavit and the objections filed to the said application.

It is not in dispute that initially the plaintiffs claim declaration that they are the absolute owner of the suit schedule property and sought the injunctory relief only against the defendant in the suit. But subsequently, as it is an admitted fact that an application was moved by the plaintiff to implead the proposed parties as defendant Nos. 2 to 9 in the said suit, and the said application was allowed and they were brought on record as defendant Nos. 2 to 9. Hence, as the application was allowed and proposed parties were brought on record as defendant Nos. 2 to 9, plaintiffs instead of claiming the ownership rights alone, could have claimed the declaratory relief along with defendant Nos. 2 to 9, filed the amendment application. So this amendment application was filed subsequent to allowing the application under Order 1 Rule 10(2) of CPC, wherein the proposed parties were brought on record. Earlier also the suit was for declaratory relief but it was only in respect of plaintiffs, but now it is in respect of plaintiffs along with defendant Nos. 2 to 9. So the nature of relief of declaration will not be changed only by allowing the amendment application, which is with regard to the prayer column in the suit.

So far as the proviso is concerned, here as the amendment application was filed in view of the subsequent developments in the suits i.e., allowing the application filed under Order 1 Rule 10 of CPC, which was insisted to move the amendment application. I have perused the decisions relied upon by the learned counsel for the petitioner; looking to the facts and circumstances in the reported decisions and the facts and circumstances in the case on hand, they are not exactly one and the same. Therefore, no fault can be found in the order passed by the Trial Court in allowing the amendment application. Hence, I am of the opinion that matter does not call for any interference by this Court in this petition. Accordingly, petition is hereby rejected.