-1- IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2016 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B. WRIT PETITION NO. 23352 OF 2014 (GM-[ACT]) BETWEEN: SRI. N. SHYAMANNA @ K.N. SHAMANNA S/O. LATE NANJUNDAPPA AGED ABOUT 71 YEARS R/AT KALVA VILLAGE DODDAVALLAHABBI POST NARASAPURA HOBLI KOLAR TALUK PETITIONER (BY SRI. G. V. SHASHI KUMAR, ADV.) AND: SRI. S. HIRANYAGOWDA S/O. LATE SONNEGOWDA AGED ABOUT 54 YEARS R/AT KALVA VILLAGE DODDAVALLAHABBI POST NARASAPURA HOBLI KOLAR TALUK RESPONDENT (BY SMT . N.RAJAMMA, ADV. FOR SRI. V. S. BIJU, ADV.) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED. 21.4.2014 IN [CASE NUMBER] -2- PENDING ON THE FILE OF THE I ADDL. CIVIL JUDGE & JMFC, KOLAR AT ANN-A. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
This writ petition is filed by the petitioner- defendant challenging the order dated 21/4/2014 passed by the I Addl. Civil Judge & JMFC, Kolar in [CASE NUMBER].
2. Materials goes to show that respondent- plaintiff filed an application in [CASE NUMBER] under [SECTION]/[SECTION] [ACT] requesting the court to amend the plaint by adding in the prayer column to declare the plaintiff as the absolute owner of the suit schedule property. The said application was also supported by the affidavit of the respondent-plaintiff wherein in para-2 it is stated that defendant has denied the ownership of the plaintiff. The said application was opposed by the writ petitioner - defendant by filing statement of objections. After hearing the parties, the Trial Court allowed the said application and being aggrieved by the same, the writ petitioner-defendant is before this court in this writ petition.
3. Learned counsel appearing for the writ petitioner - defendant during the course of his arguments submitted that originally it was a bare suit for injunction and in the written statement, specifically at para-8, the defendant has denied the title as well as possession of the plaintiff. He also submitted that when he has denied the title of the plaintiff by filing written statement taking such a specific contention, the plaintiff ought to have filed such an application immediately thereafter which was not done in this case. Learned counsel submitted that the relevant provision regarding limitation is [SECTION] of the [ACT] which is 3 years from the date of such denial. Hence he submitted that any claim by way of seeking amendment of pleadings, if it is barred by the law of limitation, such amendment application cannot be allowed as it will go back to the date of filing the suit. He further made a submission that even the material on record clearly goes to show the case of the plaintiff will not come under the proviso to amended [ACT] under [SECTION] and hence the learned counsel submitted that allowing such an application by the Trial Court only mentioning that in order to avoid multiplicity of proceedings, said amendment is necessary, is illegal and it is not sustainable in law. Hence he prays to allow the writ petition and to set aside the order challenged in this writ petition. In support of his contention, learned counsel also relied upon the following decisions:
(1) [PRECEDENT] represented by his [PRECEDENT]s. [PRECEDENT].
(3) [PRECEDENT] [PRECEDENT] (dead) through LRs. & Anr.
4. Per contra, learned counsel appearing for the respondent-plaintiff during the course of arguments submitted that in order to avoid multiplicity of proceedings, the said amendment was necessary which will not change the nature of the suit. Hence she submitted that the Trial Court rightly allowed the amendment application and no illegality has been committed by the Trial Court.
5. Looking to the prayer in the said application the plaintiff wanted to insert another relief regarding declaration of title of the plaintiff to the suit schedule property. It is nodoubt true that originally the suit was filed by the plaintiff only seeking the relief of permanent injunction against the defendant, but looking to the plaint averments, it is stated by the plaintiff in para-2 of the plaint that the property mentioned under the schedule is the ancestral property of the plaintiff acquired by inheritance from his father and since from several years the ancestors were in possession and after the death of plaintiff's father, plaintiff has been in peaceful possession and enjoyment of the suit schedule property by cultivating it personally. Looking to the written statement and as it is rightly submitted by the learned counsel appearing for the writ petition- defendant, in para-8 of the written statement he has specifically denied by mentioning in the said paragraph that plaintiff is neither the owner nor he is in possession of any portion of the suit schedule property. So the pleadings presented by the parties clearly goes to show assertion of the title to the suit schedule property by the plaintiff in the plaint and its denial by the defendant in the written statement. When that is so, when the title is asserted and the same is denied by the other side by way of presenting their pleadings, it is the duty of the court to see the entire pleadings submitted before the court and not only the relief column. In this case, undisputedly, there are averments with regard to the title of the plaintiff to the suit schedule property in the original plaint itself. When such averments are already there in the original plaint, it has been denied by filing written statement, inserting another relief regarding the prayer for declaration in the relief column, will not in any way affect the interest or it will not prejudice the defendant in any way. With regard to this amended prayer of declaration also, the defendant is having the opportunity to cross-examine the plaintiff on that aspect during the course of the trial. Though the suit is filed for bare injunction and as per the provisions of [ACT], a bare injunction suit is going to be valued under [SECTION] Clause 'c' of the [ACT]. But if we look into [SECTION] of the said Act, clause 'a' refers to title to the immovable property involved and court has to decide the title. In this connection, I am also referring to the decision of the Hon'ble Supreme Court reported in AIR 1989 SUPREME COURT 1809, [PRECEDENT]., wherein their Lordships have laid down the proposition as under:
"(A) [ACT] - Suit for decree of perpetual injunction restraining defendant from interfering with possession -
Relief of declaration of title not specifically mentioned in relief portion of plaint - Suit could not be dismissed on that ground."
6. I have also perused the decisions relied upon by the learned counsel appearing for the writ petitioner and the principles enunciated in the said decisions. Looking to the facts and circumstances in those reported decisions and the facts and circumstances in the case on hand, they are not exactly one and the same. As I have already mentioned above regarding the title to the suit schedule property by the plaintiff, there is an averment in the original plaint when the suit was filed at the first instance and therefore the question of limitation as submitted by the learned counsel for the petitioner will not come into play. Even if it is submitted that it is stated to be barred by law of limitation, on the basis of the said contention raised in the written statement, necessary issue will be framed by the Trial Court regarding limitation with regard to the declaratory relief and same will be decided while trying the main suit itself. As it is observed by the Trial Court, to avoid multiplicity of proceedings, allowing the said amendment application is also necessary, in view of this legal position and the pleadings of the parties, I am of the opinion that the Trial Court has rightly allowed the application and no illegality has been committed by the Trial Court. No merit in this writ petition to interfere with the said order. Accordingly the same is hereby rejected.
JUDGE Rd/-