IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25*" DAY OF AUGUST,.A..ZfLf'4{:3T:3T,'"I3:AAT:'V:~ AA
BEFORE
THE HON'BLE MR. JUSTICE A.N;.»~VEl\iUC§Oi§ALA'4GOWDA~_A A
WRIT PETITION No.65o0,/A2cIID§(GM+,.QQ
BETWEEN:
P. GOPAL RAJU, AGED,----64 YEA-Rs.
s/0 LATE KRISHNAMARAHU I " =
NO.56 (R--11) IIFLOOR" A
GUTTAHALLI MAIN ROAD .
MALLESWARAM"BANGALORE -_ A 'V
__ 4' - T" :PETITIONER
(BY PARTYTIN ;vE1RsD:\:»)I"EEAi'iT I
-A-'~'i-D--=a_. "
CLUB CABAi\iA RECR'EATTQ»NS P LTD.
JADE GARDEN"
SADAHA!._,LI VIILLAGE
« DE\jANA.HAI,LI TA'L'uEE'r<--A "
'BANGALORE RURAL DISTRICT
'REP'."i3_Y'v-!Y_iR;,YQGESH KUMAR AGARWAL.
A _ (5v"3RI3SRINIvAsA MURTHY FOR
:RESPONDENT
M/Sv. ‘LAW ASSOCIATES, ADVS.)
– T V “-This petition is flied under Articfes 226 and 227 of
T’ . thvefionstitution of India praying to quash the impugned
“order dated 18.10.2008 in 05. 273/06 passed by the Civif
I Q’ Judge (Jr. Dn.) Devanahaiii, vide Anriexure-A,
This petition coming on for hearing this day_, the
Court made the following: *
9322.3
Respondent/plaintiff has iriiistitutec.’
petitioner/defendant for a decree o’f._p’ermar:e”nt
restraining the defendant to iriterfeyre tiwith the
possession and by the
defendant. The filed written
statement and”:’Ao:n’test–ed%:ttie filed LA No.6
under Order leave of the court to
additional plea and a
prayerymfor plaintiff is the owner of
schedule land.s’,;- fiaidapplication was opposed by the
~'”~.,._dei’=en’da’nt/ipetitioneii”if The trial court has ailowed the
i_’_’a”p:p_l’ica’t_’ioVn ri£5ini.:p;ayment of cost of Rs.500/~. Plaintiff was
perrriitted.’to-tairnend the plaint and file fresh valuation slip
‘=._and pay the requisite court fee for the relief claimed. Said
“:f:”order’A_«has been questioned by the defendant/petitioner in
writ petition. //
(‘V
2. The petitioner contends that, the boundary
dispute was resolved by the Appeiiate Authori.ty:V:and:..the
sketch at Annexure~C is not a valid document:”fo.r-t:r’a’nsife,r
of title. The plaintiff is not entitled’ to oftitle’,
since it has avoided to pay requisite feeand
bar of iimitation. The petitioii.e’t’~..conte’nds’that, Vlbyélvallovvinglll
IA.,No.6, the trial court has comrni-tté’d,_illegality and hence
interference is called fo”r’.’ ”
3. Sri Srinivasa learned advocate
appearing for contended that, the plaintiff
has va,ilidmr’ig’nt.=iover_th,e>s_cheduVie ‘A’ property. However
in viewzVof«the’ by the defendant that, the
plaintiff has” oriiy’.’~encroached upon a portion of the
«.prop.e:rty,..amggendrnent’of the pleading to counter the claim
defendant was sought. The trial of the suit
has__not Cornrrienced and hence, there being no prejudice
VW._.,4_’..caused” the defendant on account of allowing of
v..lf3;neln’dment, to minimize the litigation and’ to determine
real questions in controversy, an applicagon was filed.
(4
Learned counsel further submitted that, afte-r.__ the
impugned order was passed, the amendment car:’ied.fout»in
the plaint. Additional written statement
petitioner ~– defendant. Additionaiissues:’i*§r:<erev–'.i'also
framed. Learned counsel submi;tteci:..'_'th'at,ll"an
was filed by the petitionelrfherein" seeigiln-g"de'l'e'ti'on /l"?
amendment of issues and tVhe–uVs'a–m'e.._was rejected by the
Trial Court on 21.12.(V19.V:i'.A has been filed
thereafter, which is pe'nd'ing, ci.rcomstances, it is
not open jtopetitionewr to ichallilelnge the impugned
order. the trial court in
exercise of with it has considered the
applicationljandvlhat/'mg the same to be tenable, has
passedlv the impugned order and there being no perverse or
Virrational?_a.ct;–..Vno interference under Article 227 of the
l'Cori'st§ltu'ti'o_n.__o'l5:;'3E'n.dia is called for.
4, I have perused the writ papers.
The original prayer in the suit is for grant of
.decree of permanent injunction. Written statement was
! R.
filed and on account of the stand taken in the written
statement, LA No.6 was filed seeking leave of to
amend the plaint, to incorporate the pleading-sfwithyi
to the title of the property andan-addi-tionaliopralyer. for it
declaration of title. The trial court JVnoticed.’_the”
taken by the defendant in ‘thye”~vwritte’i:.__statenje’nt”;'” has”?
also noticed the objections la-p_piicatiovn.. ..ivi-iiéince the
trial of the suit has defendant has
put forth counter cllalindfi; pgloslsession of the
encroachec}-iaincd ‘sijnfe set up the plea
of adverse _p”‘o.s:’seVssAionl..;§.g.ail’r:stthe.idefendant, which cannot
be decided the application has been
aiiowed. ”
«1’Ahe'”p’o’w’evr under Rule 17 of Order 6 is
be used judiciously on consideration of
the circtirnsltances of each case. Prayer for amendment
‘*._which”sai:isfies two conditions, namely (a) of not working
‘dnjustice to the other side and (b) of being necessary for
the purpose of determining the real questions in
/’
{-
controversy between the parties, can be allowed to avoid
multiplicity of proceedings. A suit for permanent infunjctrion
can be converted into one for declaration of _tE_tle’,”
by this court in the decision reported
234. In my opinion, no serious injustice3or’rrirre’p’ara’tii-e_ loss
has been caused to the pe.titioner/’defendaruat}inas riwuvchli;
as, he has filed additional and issues
which arise for consid..ei*-atfliciln :’a.ccoiunVyt of arnendment
and the additional been raised.
The petitione_r/d-:2f:e_nda’nti-can for causing
of delay The trial court has not
compe-nsa.ted.V’thee.:ipetlivétioner/d’efendant in an appropriate
manner byaimpolsingxreasiznable cost.
“The oirderivunder challenge is not perverse or
_irrati’ona!,:ln*luch;.less illegal. There is no malafide exercise
of ,c_liscreti’o”n_. ‘conferred on the trial court in the matter of
“v..yconsideration of LA No.6 and in passing the impugned
No ground is made out to interfere with the
inéapugned order. EL,»
1’ 1f