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2023 Supreme(Online)(Kar) 34396
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF MARCH, 2023 BEFORE THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION NO. 18806 OF 2022 (GM-CPC)
Between:
1. Shivanna T., S/o. Late Thimmaiah Aged about 51 years
2. Krishnappa T., S/o. Late Thimmaiah Aged about 49 years Both are residents of Kambalapura Village Hebbur Hobli-572120 Tumakur Taluk and District …Petitioners (By Sri S.Rajendra, Advocate)
And:
Digitally signed by VEERENDRA 1. Shivanna KUMAR K M S/o. Late Shankarappa Location: HIGH COURT OF Aged about 60 years KARNATAKA
2. Pushpa D/o. Shivanna Aged about 34 years
3. Devendra S/o. Shivanna Aged about 31 years
4. Gururaja S/o. Shivanna aged about 23 years All are residents of Kambalapura Village Hebbur Hobli-572120 Tumakur Taluk and District …Respondents (By Sri A.V.Amarnathan, Advocate for R1, R3 & R4 (NOC), R2-served)
This Writ Petition is filed under Article 227 of the Constitution of India, praying to set aside the order dated 25.08.2022 passed by the court of IV Additional Civil Judge and JMFC at Tumkur in O.S.No.592/2011 produced as per Annexure-E to the writ petition and consequently allow the interlocutory application produced as per Annexure-C and etc.
This Writ Petition, coming on for orders, this day, the court made the following:
ORDER
Heard Sri Rajendra S, Advocate on behalf of Sri S.V.Prakash, learned counsel for the petitioner and Sri A.V.Amaranathan, learned counsel for respondents 1, 3 and 4.
2. In O.S.No.592/2011, pending on the file of the IV Additional Civil Judge and JMFC, Tumakuru, the petitioners being the plaintiffs filed an application under Order VI Rule 17 of CPC seeking amendment to the plaint, at a stage when the suit was posted for defendants’ evidence.
3. The trial court dismissed the application observing that amendment is not permitted according to proviso to Order VI Rule 17 of CPC.
4. It is the argument of the petitioners’
counsel that amendment does not alter the nature of the suit and what was sought to be amended was a typographical error. The first defendant was shown as son of Kempamma. Since it was a typographical error, the amendment was sought to delete the word ‘son’ and to replace it with the words ‘distant relative’ in para 2, 3 and 5 of the plaint. Therefore it is his argument that in spite of the fact that the proviso to Order VI Rule 17 CPC does not permit amendment once recording of evidence commences, since the proposed amendment is to rectify a typographical error and such an amendment can be permitted.
5. But Sri A.V.Amaranathan, learned counsel submits that PW1 has given clear admissions while giving evidence that Shivanna is the son of Kempamma. Such an admission cannot be permitted to be taken away by allowing the plaintiffs to amend the plaint. He refers to deposition of PW1.
6. It is true that in the plaint, the first defendant is shown as son of Kempamma. Now the amendment is to describe the first defendant as the distant relative of Kempamma, instead of son. If the evidence of PW1 is perused, in the examination in chief, he has stated that the first defendant Shivanna is the son of Kempamma and even in the cross examination, he has given admission that first defendant is the son of Kempamma. If the proposed amendment is to take away the effect of admissions, such an amendment is not permitted. Even if application is allowed, the admissions made by PW1 while giving evidence remain and therefore the amendment will have no effect at all. In this view, the trial court is justified in rejecting the application for amendment. Therefore writ petition is dismissed.
