This petition is by the plaintiffs in O.S.No.50/2018

on the file of the XXXV Additional City Civil and

Sessions Judge, Bengaluru (for short, 'the civil Court').

The petitioners have impugned the civil Court's order

dated 04.06.2022, and the civil Court by this order has

rejected the petitioners' application [IA No.5] under

Order VI Rule 17 of the Code of Civil Procedure 1908

4

[CPC]. The civil Court has rejected the petitioners'

application on twin grounds viz., that the amendment

will change the nature of the suit and the petitioners,

who have filed the application for amendment after

commencement

of

trial,

have

not

satisfied

the

mandatory requirement of due diligence.

2.

The petitioners' suit in O.S.No.50/2018 is

for permanent injunction against the defendants from

interfering with their use and enjoyment of a passage

that measures 5 feet in width and 100 feet in length,

which is described in the schedule appended to the

plaint. The private respondents, as also the first

respondent [BBMP], have filed written statements

asserting that this property is absolutely owned and

disputing that the petitioners have rights over this

property. This written statement is filed in the month of

April 2018 and on 26.10.2021 [which is three years

after the written statement is filed], the petitioners have

5

filed this application for amendment to include the

prayer that they have easementary right of way through

the subject property by way of necessity, and also to

include pleadings to substantiate the same.

3.

The petitioners' application is contested

primarily on the ground that the petitioners' claim for

declaration

of

easementary

right,

which

could

commence definitely on 9.01.2018 with the denial

thereof, was time barred as of the date of the

application. The question of limitation must necessarily

be examined in the amalgam of facts and at this stage,

it cannot be rejected on the ground that their prayer for

declaration of easmentary rights would be time barred.

The petitioners, relying upon the pleadings that are

already

part

of

the

plaint,

seek

declaration

of

easementary right of way pleading necessity. The

question of due diligence must also be examined in the

light of the petitioners' case that the authorized

6

amongst them was suffering from Covid -19 and the

counsel on record has died in the interregnum, and as

such, they could not file application for amendment of

the plaint earlier.

The civil Court ought to have considered all these

circumstances rather than rejecting the application on a

technical

reading

of

the

circumstances.

The

respondents cannot deny that their interest would be

protected if they are given liberty to contest the

amendment by filing written statement including the

right to contend that the petitioners' prayer for

declaration of easementary right as of the date of the

present application stood time barred. Therefore, this

Court is of the considered view that the petitioners have

made out a sufficient ground for interference with the

impugned order. Hence, the following:

7

ORDER

The petition is allowed and the impugned

order dated 04.06.2022 in O.S.No.50/2018 on the

file of the XXXV Additional City Civil and Sessions

Judge, Bengaluru is quashed permitting the

petitioners to amend the plaint allowing the

application but with the observation that the

question of limitation insofar as the prayer for

declaration shall be examined as of the date of the

application and shall not be with reference to the

date of the suit. It would be needless to observe

the petitioners are at liberty to file additional

written statement.

Sd/-

JUDGE

SA/-

Ct:sr