PUTTASHETTY AND ORS. Vs. MANJA SHETTY

JUDGEMENT

(1.) DEFENDANTS 1 to 4 in O.S. No. 222/2002, on the file of the Civil Judge (Sr. Dn.), Holenarasipura aggrieved by the order dated 17.1.2013 allowing I.A. No. 21 under Order 6 Rule 17 of CPC filed by the plaintiff to amend the plaint, have presented this petition.

(2.) IN the suit for declaration of title, to immovable property, instituted by the respondent, a surveyor when appointed, submitted a report pointing that petitioners encroached upon a portion of the suit schedule properties. The plaintiff asserted that it was on the report of the surveyor that it came to his knowledge over the encroachment by the defendants, filed I.A. No. 21 under Order 6 Rule 17 of CPC to amend the plaint and an additional prayer for possession of the encroached portion of the property. That application was opposed by filing statement of objections inter alia contending, that, since the stage of the suit was for recording evidence the proviso to order 6 Rule 17 applies, denying plaintiff the relief of amendment of the plaint. In addition, it was contended that the amendment would bring in a fresh of cause of action and the relief of possession changes the nature of the suit and on that score too, the plaintiff must be denied the benefit of amendment of the plaint.

(3.) LEARNED counsel for petitioners reiterates the very same contentions as were advanced before the court below, however, learned counsel is unable to point out to any legal infirmity occasioning grave injustice to the petitioners by the order impugned. Since no new case is introduced or totally inconsistent case made out by the amendment to the plaint, the decision in Ajendraprasadji's case does not apply and the court below was fully justified in allowing I.A. No. 21.