NARAYANMURTHY Vs. GOPALLABIC

JUDGEMENT

(1.) The petitioner is before this Court under Article 227 of Constitution of India, assailing the order dated 20.01.2015 on I.A.No.6 passed in O.S.Nos.25136/2007, on the file of IV Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore (CCH-21).

(2.) The petitioner is plaintiff and respondents are defendants in O.S.No.25136/2007 filed for a judgment and decree of permanent injunction against the defendants in respect of suit schedule property bearing Site No.25, Panchayat Katha No.42, present Katha No.113, situated at Arulukunte Village, Begur Hobli, Bangalore South Taluk, measuring East to West 30 feet and North to South 40 feet. The defendants appeared and filed their written statement contending that there is no layout formed and consequently the suit schedule property is not in existence. Both the parties led their evidence. The defendants filed application under Order XXVI Rule 9 of CPC for appointment of Court Commissioner to report whether any layout is formed therein and whether there is any house construction and if so, whether suit schedule property can be identified in the said layout in respect of the site in question. Even though the application for appointment of Commissioner was filed initially, the same was considered after completion of evidence of the parties. In pursuance of the appointment of Court Commissioner, the Commissioner inspected the spot on 12.01.2013 and submitted his report on 04.02.2013. Thereafter, the plaintiff filed I.A.No.6 on 05.11.2013 under Order VI Rule 17 read with Section 151 of CPC, seeking amendment of plaint to incorporate certain facts and also additional prayer for mandatory injunction and vacant possession of the site, contending that certain developments have taken place during the pendency of the suit and the defendants have made construction on the suit schedule property. The application was opposed by the defendants by filing objection, stating that the amendment sought for will change the nature of the suit and introduces a new cause of action. Further, it is stated that the application is not maintainable when the matter is at the stage of arguments.

(3.) The trial Court on consideration of the application filed under Order VI Rule 17 of CPC, by its order dated 20.01.2015, rejected I.A.No.6 for amendment holding that proposed amendment introduces totally a different and inconsistent case and thereby it changes the fundamental character of the suit. The said order rejecting I.A.No.6 for amendment is impugned in this writ petition.