DAY,

THE

COURT

PRONOUNCED THE FOLLOWING:

O R D E R

The question involved in this writ petition is,

whether the amendment of written statement is

permissible even if any alternative or an additional

ground or to substitute for the original plea.

2.

The present writ petition is preferred by the

plaintiff assailing the order dated 07/09/2018 passed

on I.A.No.V in O.S.No.635/2010 on the file of the III

Addl. Civil Judge, Bengaluru Rural District, Bengaluru

(hereinafter referred to as <the trial Court= for short),

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whereby the application filed by the defendants under

Order VI Rule 17 read with Section 151 of the Code of

Civil Procedure, 1908 (<CPC=) seeking permission to

amend the written statement was allowed by the trial

Court.

3.

The parties herein are referred to as per

their ranking before the trial Court for the sake of

convenience.

4.

Suit for permanent injunction in respect of

the

suit

schedule

property

bearing

Sy.No.123,

measuring 11 acres 36 guntas (including 21 guntas of

kharab land) along with the boundaries contending

that defendants are trying to demolish the wall in Sy.

No.123.

5.

The defendants filed a written statement on

28.11.2011 denying the averments made in the plaint

and contended that the defendants have not passed

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any order for demolition of any structure or building

and the allegations made against the defendants are

false and also stated that the defendants may be

permitted to amend the written statement, if any, in

changed circumstances of the case and sought for

dismissal of the suit.

6.

When the matter was set in for cross-

examination

of

PW.1,

the

defendants

filed

an

application under Order VI Rule 17 of the CPC on

15/02/2018 seeking to amend the written statement

and to add the additional contention that recently they

came to know that the present suit has been filed to

knock away the portion of the valuable property

belonging to the Bruhat Bengaluru Mahanagara Palike

(<BBMP=) encroaching into the portion of Tank bed

area in Sy.No.124 and as such, amendment sought in

respect of written statement is just and necessary for

effective adjudication of the case on hand.

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7.

The plaintiffs filed their objections to I.A.

No.5

stating

that

the

defendants

have

falsely

contended that the plaintiffs have encroached upon

the portion of the tank bed area in Sy.No.124,

situated

at

Pattandur

Village,

K.R.Puram

Hobli,

Bengaluru, and there is no justification for the

defendants to seek an amendment of the written

statement as the suit is in respect of the land bearing

Sy.No.123 of the said village more precisely after

commencement of trial and the amendment sought is

in respect of Sy.No.124 has no bearing in the present

suit and sought to dismiss the application.

8.

On hearing the parties, the trial Court by

its order dated 07/09/2018 allowed I.A.No.5 holding

that the proposed amendment does not change the

nature of the suit and prejudice the plaintiff or take

away the admissions in the written statement and the

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proposed amendment is necessary for the purpose of

determining the real question in controversy between

the parties.

9.

Being aggrieved by the allowing of I.A.No.5

filed by the defendants under Order VI Rule 17 of the

CPC, the plaintiffs have preferred the present writ

petition.

10. Heard learned counsel for the parties to the

lis.

11. Learned counsel for the petitioners, Sri

Manmohan P.N., would contend that the amendment

sought by adding paragraph No.5(a) is in respect of

Sy.No.124 which is not the subject matter and the

amendment sought by the defendants would change

the very nature of the suit. Learned counsel would

contend that the defendant has not stated in spite of

due diligence, the defendant could not have raised the

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amendment before the commencement of trial as per

proviso under Order VI Rule 17 of CPC and thus, the

allowing of the application by the trial Court is without

considering the settled proposition of law as envisaged

under Order VI Rule 17