Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nKarnataka High Court\nSri.M.Krishna Rao vs Sri.M.Manjunatha on 23 May, 2022Bench: Ashok S.Kinagi\nIN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n       DATED THIS THE 23RD DAY OF MAY 2022\n\n                       BEFORE\n\n      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI\n\n     WRIT PETITION NO.1927 OF 2018 (GM-CPC)\n\nBETWEEN:\n\n1.    SRI.M. KRISHNA RAO\n      S/O LATE V. VENKATA RAO\n      AGED ABOUT 68 YEARS\n      R/A NO.10, BABU BUILDING\n      BSK II STAGE, KATTRIGUPPE\n      MAIN ROAD. 5TH CROSS,\n      NEAR VIDHYAPEETA CIRCLE,\n      BENGALURU 560 050.\n\n2.    SRI. G.V. NAGENDERA RAO\n      S/O LATE V.VENKATARAO\n\n      SINCE DECEASED BY HIS LR'S\n\n2(A) SMT. PRAMILA BAI\n     W/O LATE NAGENDRA RAO G.V.\n     AGED ABOUT 58 YEARS\n\n2(B) SRI. VENKATESHWARA RAO\n     S/O LATE NAGENDRA RAO G.V.\n     AGED ABOUT 43 YEARS\n\n2(C) SRI. RAGHAVENDRA RAO\n     S/O LATE NAGENDRA RAO G.V.\n     AGED ABOUT 41 YEARS\n                            2\n\n\n\n\n    R/AT No.1367/2, SRINIVASANAGAR\n    9TH MAIN ROAD, DR. RAJ ROAD, 8TH CROSS,\n    BANASHANKARI 2ND STAGE\n    BENGALURU - 560 050.\n\n2(D) SMT. LAKSHMI BAI S\n     W/O SURESH R\n     AGED ABOUT 42 YEARS\n     RESIDING AT No.135, 71ST CROSS\n     NEAR KUMARASWAMY LAYOUT\n     BENGALURU - 560 078.\n                                        ...PETITIONERS\n\n(BY SRI. GANGADHARAIAH A N, ADVOCATE)\n\nAND:\n\nSRI. M.MANJUNATHA\nS/O SRI. M. MARIYAPPA\nAGED ABOUT 38 YEARS\nR/AT NO.139/1-2-1,\nPIPELINE EAST MAIN ROAD,\nKASTURBANAGAR,\nMYSORE ROAD,\nBENGALURU 560 026.\n                                        ....RESPONDENT\n\n(BY SRI. B N PUTTALINGAIAH, ADVOCATE)\n\n\n      THIS WRIT PETITION IS FILED UNDER ARTICLE 226\nAND 227 OF THE CONSTITUTION OF INDIA PRAYING TO\nSET ASIDE THE ORDER PASSED THE XVII ADDL. CITY\nCIVIL JUDGE AT BANGALORE IN O.S.NO.2653/2015 ON\nI.A.NO.5 DATED 27.11.2017 VIDE ANNEXURE-E AND\nALLOW I.A.NO.5 FILED BY THE PETITIONERS FOR\nAMENDMENT OF THEIR WRITTEN STATEMENT BY\nALLOWING THIS PETITION.\n                                 3\n\n\n\n\n     THIS WRIT PETITION COMING ON FOR PRELIMINARY\nHEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE\nFOLLOWING:\n\n                            ORDER\n\n         The petitioners aggrieved by the order passed on\n\nI.A.No.5      dated    27.11.2017,      passed     in      O.S.No.\n\n2653/2015        by   the   XVII    Addl.   City   Civil    Judge,\n\nBengaluru has filed this writ petition.\n\n\n         2. Brief facts leading rise to filing of this petition\n\nare as under:\n\n         The respondent filed a suit in O.S.No.2653/2015\n\nagainst the petitioners for the relief of declaration and\n\ninjunction.      The trial Court issued summons to the\n\npetitioners. Petitioners appeared through counsel, but\n\ndid not choose to file written statement.            Thereafter\n\nthe matter was posted for respondent's evidence.\n\nRespondent filed affidavit in lieu of examination-in-\n\nchief.      Thereafter petitioners filed an application\n\nseeking permission to file written statement. The trial\n                                 4\n\n\n\n\nCourt allowed the application and permitted the\n\npetitioners to file written statement.           The trial Court\n\nframed issues and thereafter matter was posted for\n\ncross-examination of the respondent i.e., PW-1.              At\n\nthat    time,   petitioners     filed   an   application     for\n\namendment       of   written        statement.       The    said\n\napplication was opposed by the respondent by filing\n\nobjections. The trial Court, after hearing the parties,\n\nrejected the application filed by the petitioners.\n\nHence this writ petition.\n\n\n       3.   Heard learned counsel for petitioners and\n\nlearned counsel for the respondent.\n\n\n       4.   Learned counsel for the petitioners submits\n\nthat the trial Court has committed an error in passing\n\nthe impugned order.           He further submits that the\n\napplication was filed by the petitioners prior to\n\ncommencement of evidence. He further submits that\n                                    5\n\n\n\n\nthe trial Court has committed an error in recording a\n\nfinding that this Court in RFA No.855/2014 has set\n\naside        the     judgment      and   decree    passed     in\n\nO.S.No.5576/2007. He further submits that this Court\n\nhas disposed of the aforesaid appeal.              He further\n\nsubmits that the trial Court without considering the\n\ncontention of the petitioners has passed the impugned\n\norder. Hence, on these grounds, he prays to allow the\n\nwrit petition.\n\n\n        5.         Per   contra,   learned   counsel   for   the\n\nrespondent submits that prior to the filing of this suit,\n\nthe petitioners filed a suit against the respondent and\n\nhis vendor in O.S.No.5576/2007 for injunction.               The\n\nsaid suit came to be decreed and the said judgment\n\nwas challenged in RFA No.855/2014 and this Court\n\nhas disposed of the appeal.            He further submits that\n\nthe application was filed by the petitioners after the\n\ncommencement of trial.             He further submits that the\n                             6\n\n\n\n\ntrial Court was justified in passing the impugned\n\norder. Hence he prays to dismiss the writ petition.\n\n\n     6.   Perused the records and considered the\n\nsubmissions made by learned counsel for the parties.\n\n\n     7. It is not in dispute that the petitioners filed a\n\nsuit in O.S.No.5576/2007 against the respondent and\n\nhis vendor for permanent injunction.       The said suit\n\ncame to be decreed vide judgment and decree dated\n\n28.02.2014.      The    respondent   and    his   vendor\n\naggrieved by the judgment and decree passed in the\n\naforesaid suit preferred an appeal in RFA No.855/2014\n\nbefore this Court.     This Court vide judgment dated\n\n03.03.2015, disposed of the appeal granting leave to\n\nfile such a suit within a period of 15 days, if not\n\nearlier, from the date of the judgment. In view of the\n\nleave granted by this Court in the aforesaid appeal,\n\nthe respondent filed the suit in O.S.No.2653/2015 for\n                                  7\n\n\n\n\ndeclaration and injunction.           In the said suit, the trial\n\nCourt issued summons to the petitioners. Petitioners\n\nappeared through counsel, but did not choose to file\n\nwritten statement.        The trial Court has taken the\n\nwritten statement as not filed.                Meanwhile, the\n\nrespondent     has      filed    an     affidavit   in   lieu    of\n\nexamination-in-chief. Thereafter, the petitioners filed\n\nan application seeking permission to file written\n\nstatement.    The said application came to be allowed\n\nby the trial Court.             After accepting the written\n\nstatement, on the basis of pleadings of the parties,\n\nthe trial Court framed issues. Thereafter, the matter\n\nwas posted for respondent's evidence.               At that time,\n\npetitioners filed an application to amend the written\n\nstatement to incorporate the plea of res judicata and\n\nalso the plea of limitation.              The trial Court has\n\nrecorded a finding that the respondent has produced\n\ncertified   copy   of    the     judgment      passed    in     RFA\n                                  8\n\n\n\n\nNo.855/2014 wherein the trial Court observed that\n\nthis Court has set aside the judgment and decree\n\npassed in O.S.No.5576/2007.              Learned counsel for\n\npetitioners has provided a copy of judgment passed in\n\nRFA No.855/2014. From the perusal of the judgment\n\npassed in the aforesaid appeal, it discloses that this\n\nCourt has disposed of the appeal without making any\n\nobservation as to whether the judgment and decree\n\npassed by the trial Court in O.S.No.5576/2007 is set\n\naside   or    confirmed.        Without       there    being   any\n\nobservation       to   that   effect,   the    trial   Court   has\n\ncommitted an error in recording a finding that this\n\nCourt has set aside the judgment and decree passed\n\nin O.S.No.5576/2007.           The finding recorded by the\n\ntrial Court in para-11 is contrary to the records. After\n\nframing of issues, the respondent did not file fresh\n\naffidavit    in   lieu   of   examination-in-chief,       though\n\nproceeded upon the examination-in-chief which was\n                            9\n\n\n\n\nfiled prior to the filing of written statement.    The\n\npetitioners filed an application for amendment of\n\nwritten statement.     The trial Court rejected the\n\napplication on the ground that the petitioners have not\n\nmade out a case that proposed amendment is very\n\nmuch necessary for effectual disposal of the suit.\n\nWhile considering an application for amendment of\n\npleadings, the Court is required to consider whether\n\nthe proposed amendment changes the nature of case\n\nand cause of action.   In the present case, the trial\n\nCourt while considering the application for amendment\n\nof written statement, has recorded a finding in the\n\nimpugned order, on the merits of the case. Insofar as\n\namendment of written statement, the Court shall\n\nadopt for more liberal approach, than for amendment\n\nof the plaint.   The said view is supported by the\n\ndecision of Hon'ble Apex Court in the case of SUSHIL\n\nKUMAR JAIN VS. MANOJ KUMAR & ANR., reported in\n                            10\n\n\n\n\nAIR 2009 SC 2544.        The proposed amendment as\n\nsought by the petitioner does not change the nature of\n\ndefence.   The trial Court has committed an error in\n\nrejecting the application filed by the petitioners.\n\nHence, I proceed to pass the following:\n\n                         ORDER\n\n           The writ petition is allowed.\n\n           The     impugned        order    dated\n     27.11.2017 passed on I.A.No.5 in O.S.No.\n     2653/2015 is set aside.\n\n           Consequently the application filed by\n     the petitioners i.e., I.A.No.5 is allowed.\n     Petitioners are permitted to carry out the\n     amendment in the written statement.\n\n                                     SD/-\n                                    JUDGE\n\n\n\nRD