The principle that amendments to pleadings should be allowed to ensure justice and to determine the real questions in controversy, provided they do not cause injustice or prejudice to the other party.

JUDGMENT

1. The petitioners/defendants in O.S.No.1449/2018 on the file of the III Additional Civil Judge (Jr.Dn.) and JMFC, Mangalore are before this Court under Article 227 of the Constitution of India, against the order dtd. 25/3/2023 allowing I.A.No.8 filed by the respondents/plaintiffs under Order VI Rule 17 of CPC to amend the plaint to add certain facts as well as to add prayer of mandatory injunction.

2. Heard learned counsel Sri.B.S.Sachin for petitioners/defendants and learned counsel Sri.Abhishek Marla for respondents/plaintiffs. Perused the writ petition papers.

3. Learned counsel for the petitioners would submit that the suit of the respondents/plaintiffs was for permanent prohibitory injunction restraining the defendants from trespassing into plaint schedule property and thereby interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property. It is submitted that on framing of issues and before commencement of evidence of the plaintiffs, the plaintiffs filed I.A.No.8 under Order VI Rule 17 of CPC seeking permission to amend the plaint to include certain facts and also to include additional prayer of mandatory injunction to give vacant possession of the illegal encroached portion by removing illegal construction put up by the defendants. The said application was opposed by the petitioners/defendants stating that the amendment if allowed would change the nature of the suit as well as cause of action. Further, it is stated that the amendment sought by the plaintiffs are to overcome the contentions raised by the defendants in their written statement and the amendment if allowed would prejudice the case of the petitioners/defendants.

4. The trial Court under impugned order allowed I.A.No.8 filed under Order VI Rule 17 of CPC to amend the plaint against which, the petitioners/defendants are before this Court.

5. Learned counsel Sri.B.S.Sachin for petitioners/ defendants would submit that the amendment as sought by the plaintiffs would entirely change the nature of suit and cause of action. It is further submitted that the amendment application is filed to overcome or to get over the contentions of the petitioners/defendants raised in their written statement. The suit is one for permanent prohibitory injunction to restrain the defendants from trespassing into the plaint schedule property, whereas by way of amendment, mandatory injunction is also sought to hand over possession by removing the construction which is impermissible. Learned counsel would further submit that the trial Court on the application filed by the respondents/plaintiffs under Order XXXIX Rules 1 and 2 of CPC has held that the respondents/plaintiffs are not in possession of the suit schedule property and has observed that the petitioners/defendants have constructed a cowshed. When such being the finding, the respondents/ plaintiffs could not have alleged that the petitioners/ defendants have trespassed into the suit schedule property subsequent to the order rejecting their application filed under Order XXXIX Rules 1 and 2 of CPC. Learned counsel would submit that the impugned order allowing the amendment application filed by the plaintiffs would be opposed to the principles laid down by the Hon'ble Apex Court in the case of REVAJEETHU BUILDERS AND DEVELOPERS v/s NARAYANA SWAMY AND SONS AND OTHERS reported in (2009)10 SCC 84. Further, learned counsel inviting attention of this Court to paragraph 57 of the above said judgment would submit that the trial Court failed to examine whether amendment sought is bonafide or malafide or whether the amendment would cause prejudice to the other side. Further, learned counsel would submit that if the plaintiffs in their pleadings claim that the petitioners/defendants trespassed into the property, the prayer for mandatory injunction itself would not be maintainable. Thus, learned counsel would pray for allowing the writ petition and to set aside the impugned order allowing amendment o