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Dundappa Laxmappa and anr. Vs. Mallappa Bhimappa Bolanatti - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 139 of 1975
Judge
Reported inAIR1976Kant39; 1975(2)KarLJ239
ActsCode of Civil Procedure (CPC), 1980 - Order 6, Rule 17 and Order 39, Rule 2
AppellantDundappa Laxmappa and anr.
RespondentMallappa Bhimappa Bolanatti
Appellant AdvocateW.K. Joshi, Adv.
Respondent AdvocateN.A. Mandagi, Adv.
Excerpt:
.....suit. the court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. it is well recognised that a suit for injunction could be converted into a suit for possession, if the plaintiff apprehends about his relief of injunction. in these circumstances, i cannot but hold that the discretion exercised by the trial court in allowing the amendment was, perfectly justified......p. c. arises out of an order made by the principal munsiff, gokak, allowing amendment to convert a suit for injunction into one for partition and possession.2. the suit filed by the respondent was for an injunction in respect of land in block no. 65 measuring 10 acres 20 guntas situated in shindikurbot village. the case of the plaintiff was that he was in joint possession with the defendants and the defendants are interfering with his possession and trying to exclude him thereof. he obtained an ad interim injunction, but the same was vacated after hearing the defendants. the plaintiff then came forward with an application to amend his plaint. he wanted to convert his suit for injunction into a suit for partition, by adding one more land and a house with movables in the plaint schedule......
Judgment:
ORDER

1. This revision petition under Section 115 of Civil P. C. arises out of an order made by the Principal Munsiff, Gokak, allowing amendment to convert a suit for injunction into one for partition and possession.

2. The suit filed by the respondent was for an injunction in respect of land in Block No. 65 measuring 10 acres 20 guntas situated in Shindikurbot village. The case of the plaintiff was that he was in joint possession with the defendants and the defendants are interfering with his possession and trying to exclude him thereof. He obtained an ad interim injunction, but the same was vacated after hearing the defendants. The plaintiff then came forward with an application to amend his plaint. He wanted to convert his suit for injunction into a suit for partition, by adding one more land and a house with movables in the plaint schedule. He claimed half share in all these properties. The defendants resisted the said application on the ground among others, that if the amendment is allowed, it would change the character of the suit. Despite the objection, the trial Court allowed the amendment stating that the defendants are not put to any injustice and are not deprived of their fights.

3. The correctness of the above order is called into question in this revision petition.

4. Counsel for the petitioners as usual in a case like this, argued that the leave to amend ought not to have been granted as the amendment prayed for was not necessary for determining the real question in controversy between the parties. He further urged that the amendment to the pleadings should be refused, if it changes the nature and character of the suit.

5. There is a long line of cases in which the principles governing the courts power to allow amendments have been propounded. The earliest of among them was, perhaps, the case, of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, (AIR 1922 PC 249) in which Lord Buckmaster observed:-

' ........... All rules of court are nothing, but provisions intended to secure the proper administration of justice, and it is therefore essential, that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.'

6. The above principles have been further liberalised by the Supreme Court in Jai Ram Manohar Lal v. National Building Material Supply Gurgaon : [1970]1SCR22 by observing thus:-

' ............ A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side ..............'

7. Against this background, let me see whether the amendment allowed was or was not necessary in the instant case. It is true that the cause of action for the injunction suit is different from the cause of action for a suit for partition. It may also be stated that technically the nature of the suit also changes if the suit for injunction is changed into suit for partition. But the purpose for which the plaintiff wanted the amendment should not be lost sight of. His averments. in the suit for injunction were that he was in joint possession of the suit land with the defendants who are members of his family, who without any justification have been interfering with his said right. He, therefore, wanted an injunction to restrain the defendants from interfering with his right to be in possession. But the Court refused to grant an injunction on the ground that he could not ask for it against his co-owner. He then prayed for his separate share in all the family properties. It seems to me that he cannot be prevented from doing so. It is well recognised that a suit for injunction could be converted into a suit for possession, if the plaintiff apprehends about his relief of injunction. The case on hand cannot be said to be different on principle. The plaintiff herein really asks for possession of his separate share by claiming partition. The defendants have not made out that their rights have been taken away by allowing the amendment or any injustice has been done to them. In these circumstances, I cannot but hold that the discretion exercised by the trial Court in allowing the amendment was, perfectly justified.

8. The defendants are at liberty to file additional written statement.

9. In the result, the revision petition fails and is dismissed, but I make no orders as to costs.

10. Petition dismissed.


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