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2016 Supreme(Kar) 151
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Budihal R.B., J.
Agnel B. Pereira and Ors. – Appellants
Vs.
K.A.V. Bhanu Prakash and Ors. – Respondents
Writ Petition Nos. 4319-4320 of 2015 (GM-CPC)
Decided On : 19-01-2016
For the Appellant : Narendra Gandhi, Adv.
For the Respondent: K. Suryanarayana Rao, Adv.
The main legal point established in the judgment is that the appointment of a Court Commissioner and the allowance of amendment to include claims of ownership, possession, and mandatory injunction were justified in a property dispute case, and the rejection of the amendment application was deemed unsustainable as it would lead to multiplicity of proceedings and cause injury and hardship to the plaintiffs.
Headnote:
Order 26 Rule 9 of CPC - Appointment of Court Commissioner - Amendment of Pleadings under Order 6 Rule 17 of CPC - [APPOINTMENT OF COURT COMMISSIONER] - [PROPERTY DISPUTE] - [Order 26 Rule 9, Order 6 Rule 17 of CPC] - The court allowed the appointment of a Court Commissioner to ascertain property overlap and permitted the amendment of pleadings to include claims of ownership, possession, and mandatory injunction. The rejection of the amendment application was deemed unsustainable as it would lead to multiplicity of proceedings and cause injury and hardship to the plaintiffs.
Fact of the Case:
The plaintiffs sought to set aside observations made in the order on their application under Order 26 Rule 9 of CPC for the appointment of a Court Commissioner and to amend the pleadings under Order 6 Rule 17 of CPC in a property dispute case. The trial Court allowed the appointment of a Court Commissioner but postponed the appointment until after a full-fledged trial, if necessary. The amendment application was rejected by the trial Court.
Finding of the Court:
The Court found that the appointment of a Court Commissioner was justified based on the necessity to ascertain property overlap. The rejection of the amendment application was deemed unsustainable as it would lead to multiplicity of proceedings and cause injury and hardship to the plaintiffs.
Issues: The issues revolved around the appointment of a Court Commissioner to ascertain property overlap and the rejection of the amendment application seeking to include claims of ownership, possession, and mandatory injunction.
Ratio Decidendi: The Court allowed the appointment of a Court Commissioner to ascertain property overlap and permitted the amendment of pleadings to include claims of ownership, possession, and mandatory injunction. The rejection of the amendment application was deemed unsustainable as it would lead to multiplicity of proceedings and cause injury and hardship to the plaintiffs.
Final Decision: The Court dismissed the writ petitions challenging the observations of the trial Court on the appointment of a Court Commissioner and allowed the amendment application filed under Order 6 Rule 17 of CPC, directing the plaintiffs to carry out the amendment to the pleadings before the trial Court.
Budihal R.B., J.
1. These petitions are filed by the petitioners-plaintiffs to set aside the observations made in the order on the application filed by the petitioners under Order 26 Rule 9 of CPC dated 24.6.2014 passed as per Annexure 'H' and also to set aside the orders on the application filed by the petitioners under order 6 Rule 17 of CPC dated 2.1.2015 passed as per Annexure 'L' by the 39th Addl. City Civil judge, Bangalore passed in O.S. No. 3112/2013.
2. Application under order 26 Rule 9 of CPC was filed by the plaintiffs requesting the Court to appoint the Court Commissioner to survey and inspect the suit schedule property and to give report by allowing the said application. Another application under Order 6 Rule 17 of CPC was filed by the plaintiffs requesting the Court to grant permission to amend the pleadings by inserting paragraph Nos. 12 and 13. The GPA holder of the plaintiffs filed his sworn affidavit contending that plaintiffs have purchased site No. 1 measuring East to West 44' on the northern side and 50' on the southern side and measuring North to South 40', totally measuring 1880 sq. ft., vide sale deed dated 30.3.1995 marked as Ex. P3. After the purchase, plaintiffs were put into actual possession of the said site No. 1 and khata was transferred into the name of the plaintiffs. Thereafter, plaintiffs sold the western portion measuring East to West 32' and North to South 40' totally measuring 1280 sq. ft. in the said site No. 1 vide sale deed dated 18.7.2011 marked as per Ex. P7. So, there is a remaining area of 600 sq. ft. remained with the plaintiffs which is the schedule property. On perusal of the layout plan which consists of defendant's property it can easily be seen that the property of the defendants is not rectangle in size. The said property measures lesser on the southern side. It can also be seen from the said layout plan that the neighbouring properties were of the dimension of less than 30'x40'. Though the property of the defendants measures less than 30'x40' as can be seen from the layout plan, the sale deed of the defendants shows 40'x44'. The plaintiffs have also filed application under 39 rule 1 and 2 of CPC and same was dismissed on technical point vide order dated 16.7.2013 against which, they preferred M.F.A. No. 6732/2013. The said appeal came to be disposed by this Court by order dated 27.8.2013, wherein this Court suggested for appointment of Commissioner. Hence, if this application is not allowed, plaintiffs will incur great hardship and irreparable loss and requested to allow the application. The said application was objected to by the defendants stating that there is no encroachment on the plaintiffs' property and Commissioner cannot be expected to gather evidence for the plaintiffs. P.W. 1 has already been examined and that he is to be cross-examined.
3. In another application filed by the plaintiffs under order 6 Rule 17 of CPC it is stated that after dismissal of the I.A. filed under order 39 Rule 1 and 2 of CPC by the trial Court as well as by this Court, taking advantage of the same, defendants have started construction over the suit schedule property. So, the plaintiffs have sought mandatory injunction and also possession of the suit schedule property with declaratory relief by way of amendment to the pleadings by proposed paragraph Nos. 12 and 13 and also to amend the prayer column by inserting prayers (ab), (ac) and (ad) after prayer column (a) and to declare that the plaintiffs are the absolute owners of the suit schedule property and to grant a decree of possession directing defendants, their agents or any person representing them to deliver vacant possession of the suit schedule property to the plaintiffs and to grant a decree of mandatory injunction by demolishing the constructions made in the suit schedule property. This application was also opposed by the defendants stating that it is filed only to drag on the proceedings. The evidence is already commenced. The
