RAGHUNATH SHETTY Vs. KUSUMA J. SHETTY

JUDGEMENT

(1.) The petitioners/defendants in O.S.No.1449/2018 on the file of the III Additional Civil Judge (Jr.Dn.) and JMFC, Mangalore are before this Court under Article 227 of the Constitution of India, against the order dtd. 25/3/2023 allowing I.A.No.8 filed by the respondents/plaintiffs under Order VI Rule 17 of CPC to amend the plaint to add certain facts as well as to add prayer of mandatory injunction.

(2.) Heard learned counsel Sri.B.S.Sachin for petitioners/defendants and learned counsel Sri.Abhishek Marla for respondents/plaintiffs. Perused the writ petition papers.

(3.) Learned counsel for the petitioners would submit that the suit of the respondents/plaintiffs was for permanent prohibitory injunction restraining the defendants from trespassing into plaint schedule property and thereby interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property. It is submitted that on framing of issues and before commencement of evidence of the plaintiffs, the plaintiffs filed I.A.No.8 under Order VI Rule 17 of CPC seeking permission to amend the plaint to include certain facts and also to include additional prayer of mandatory injunction to give vacant possession of the illegal encroached portion by removing illegal construction put up by the defendants. The said application was opposed by the petitioners/defendants stating that the amendment if allowed would change the nature of the suit as well as cause of action. Further, it is stated that the amendment sought by the plaintiffs are to overcome the contentions raised by the defendants in their written statement and the amendment if allowed would prejudice the case of the petitioners/defendants.