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M/s. Brigade Gardens Resort & Hotel Pvt. Ltd. Represented by its Managing Director, Y.R. Manohar v/s Harish Kumar Oberai & Another

    Writ Petition No. 32245 of 2014 (GM-CPC)

    Decided On, 09 November 2018

    At, High Court of Karnataka

    By, THE HONOURABLE CHIEF JUSTICE MR. DINESH MAHESHWARI

    For the Petitioner: C.S. Prasanna Kumar, Advocate. For the Respondents: B.G. Nayana Tara, G.L. Vishwanath, Advocates (NOC).



Judgment Text

(Prayer: This Writ Petition is filed Under Articles 226 & 227 of the Constitution of India praying to quash the order passed by the learned Iv Addl. City Civil & Sessions Judge, mayo hall unit (Cch-21), Bangalore allowing I.A.No.4 filed by the plaintiffs/respondents in O.S.No.15942/2006 by its order dated 26.03.2014 vide Annexure-A and etc.)

By way of this writ petition, the defendant of a suit for declaration and injunction (O.S.No.15942/2006) in the Court of IV Additional City Civil Judge, Mayo Hall, Bengaluru, seeks to question the order dated 26.03.2014, whereby the Trial Court has allowed the application filed by the plaintiffs seeking to amend the plaint so as to state different measurements of the suit schedule properties.

Perusal of the order impugned makes out that though the suit was filed in the year 2006 stating particular description of the schedule properties, but then, rectification deeds in relation to such properties came to be executed on 25.08.2011 and hence, by way of amendment, the measurement of the suit schedule properties were sought to be mentioned as per the said rectification deeds.

The amendment prayed for had been as under:

"7. The proposed amendment sought for in the application by the plaintiffs is as under:-

"AMENDMENT SOUGHT FOR:

(a) In para 5 of the Plaint:

delete the words "land measuring 90'+80'/2 East to West and 88'+144'/2 North to South" instead add "East to West 85'+97'/2 and North to South 134'+107'/2."

Delete 7200 sq.ft. and insert 10,877 sq.ft.

(b) In Schedule 'A' of the Plaint: delete the words "measuring East to West 90'+80'/2 and North to South 88'+144'/2 together with constructions thereon measuring 10'x20'" instead add the words "measuring east to west 85'+97'/2 and North to South 134'+107'/2 together with constructions thereon measuring 20'x20'".

(c) In the Schedule 'B' of the Plaint: delete "7200 Sq.ft" and insert "10,877 sq.ft" and delete measuring "East to West - 93'+87'/2 and North to South - 72'+88'/2" and insert measuring "East to West - 72'+77'/2 and North to South - 158'+134'/2."

After taking note of all the facts and circumstances of the case, the Trial Court found it just and proper to allow such amendment so as to adjudicate on the real questions in controversy and accordingly, granted the prayer for amendment, while observing as under:

"8. It is the admitted fact that the plaintiffs have filed this suit for declaration, permanent injunction with respect to the suit 'A' and 'B' schedule properties. On behalf of the plaintiffs, P.W.1 is partly examined and evidence of P.W.1 not yet completed. Rectification deeds are executed on 25.08.2011 during the pendency of suit and it is the subsequent event. Later on, the plaintiffs filed this application on 08.11.2011. Boundaries as shown in suit 'A' and 'B' schedule properties and also, in rectification deeds are one and the same. There is no change in boundaries with respect to the suit 'A' and 'B' schedule properties. But, the proposed amendment sought for with respect to measurements of suit 'A' and 'B' schedule properties only. This fact is subject to proof. If it is allowed, it does not amount as final adjudication. Moreover, the proposed amendment does not change the nature of suit. On the other hand, the proposed amendment is just and necessary to adjudicate the matter in dispute effectively. For the reasons stated above, I proceed to pass the following:-

ORDER

IA No.IV filed by the plaintiffs under Order VI Rule 17 read with Section 151 CPC is allowed. No order as to cost."

Learned counsel for the petitioner has strenuously argued that such amendment could not have been allowed, particularly when the suit was filed in the year 2006 and the plaintiffs could not have derived the advantage of the alleged rectification deeds dated 25.08.2011. Learned counsel would also argue that the suit in relation to the properties now W.P.No.32245/2014 sought to be described would obviously stand barred by limitation and the Court ought to have declined such amendment.

Having given thoughtful consideration to the submissions made and having examined the material on record, this Court finds that the Trial Court has examined the matter while being conscious of the requirements of its jurisdiction dealing with an application seeking amendment of the pleading. The Trial Court has, prima facie, observed that the boundaries, as mentioned in schedule 'A' and schedule 'B' to the plaint as also those mentioned in the rectification deeds are one and the same and there is no change in respect of such boundaries. The Trial Court has also consciously observed that the facts stated by the plaintiffs are subject to proof and allowing of the amendment would not amount to final adjudication; but such amendment is necessary to adjudicate the matter in dispute effectively.

Perusal of the pleadings of the parties makes it clear that the plaintiffs are seeking declaration that they are the absolute owners of the suit schedule properties and are also seeking injunction against the defendant/petitioner. On the W.P.No.32245/2014 other hand, the defendant/petitioner has refuted the plaintiffs' claim and has conversely sought injunction against the plaintiffs that they would not interfere with the peaceful possession and enjoyment of the properties mentioned in schedules 'A' to 'C' to the written statement and the counter- claim.

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g to the nature of dispute between the parties and the subsequent event of execution of the rectification deeds, the Trial Court cannot be faulted in allowing the amendment as prayed for. All other questions sought to be raised, obviously, remain open and may be urged by the defendant/petitioner in accordance with law; and for that matter, the defendant/petitioner is entitled to file his additional written statement. Thus, while again making it clear that all the objections of the defendant/petitioner remain open to be urged in accordance with law, this writ petition stands dismissed. No costs.
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