GOPANALU HANUMANTHAPPA Vs. DURUGAPPA

JUDGEMENT

(1.) This writ petition is filed under Article 227 of the Constitution of India, seeking prayer to quash the order dtd. 19/3/2020 passed on I.A.No.10 in O.S.No.23/2009 on the file of the Additional Civil Judge, Davanagere.

(2.) Brief facts giving rise to file this petition are that the petitioner herein is the defendant in O.S.No.23/2009 filed by the respondent-plaintiff seeking prayer to declare that the respondent is owner in possession and enjoyment of the suit schedule property and further prays to restrain the petitioner herein or anyone under them from interfering with the peaceful possession and enjoyment of the suit schedule property. The said suit came to be dismissed by the judgment and decree dtd. 18/1/2016. Being aggrieved by the same, respondent- plaintiff has filed R.A.No.33/2016, which came to be allowed by setting aside the judgment and decree passed in O.S.No.23/2009 dtd. 18/1/2016 by remitting the matter back to the trial Court with a direction to accord opportunity to adduce additional evidence and to dispose of the suit in accordance with law on priority basis. After remand, the petitioner who is the defendant has filed an application- I.A.No.10 under Order VI Rule 17 of CPC, seeking for amendment of written statement. The said application came to be dismissed vide order dtd. 19/3/2020. Being aggrieved by the same, the present writ petition is filed.

(3.) Sri. D.P.Mahesh, learned counsel appearing for the petitioner submits that the trial Court has committed an grave error in rejecting the application filed under Order VI Rule 17 of CPC, seeking amendment of the written statement on the ground that the Appellate Court while remanding the suit has only directed to dispose of the suit by giving an opportunity to adduce additional evidence for the parties and there is no direction to amend the pleadings. It is further submitted that the trial Court has committed grave error in not allowing the petitioner to amend the written statement, as the respondent is allowed to adduce the additional evidence, the petitioner - defendant has a right to cross witness on additional evidence, and unless the petitioner is permitted to amend his written statement, he will not be allowed to cross witness on additional evidence and he will not be in a position to put forth his defence properly in the suit. The respondent is placing reliance on the sale deed dtd. 6/2/1975 and based on the sale deed, he intends to adduce additional evidence by changing the boundary and the petitioner who is the defendant is required to take appropriate defence with reference to the pleading by amending the written statement. Unless he is permitted to take such defence in the written statement, the rights of the petitioner to defend in the suit would severely affect and he would not be able to cross-examine the respondent/plaintiff in the suit in effective manner. The said aspect has not been properly appreciated by the trial Court and erroneously rejected the application filed seeking for the amendment of written statement. It is also submitted that if the application seeking amendment of the written statement is allowed, no harm or prejudice would be caused to the respondent herein. On the other hand, if the same is rejected, the defendant would lose his defence in the suit, it would cause prejudice to him. Hence, he seeks to allow the application by setting aside the impugned order.