- 1 - NC: 2025:KHC-D:5589 WP No. 105509 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO. 105509 OF 2019 (GM-CPC) BETWEEN: SRI. ANAND NAGAPPA PATTAN, AGE: 58 YEARS, OCC: AGRICULTURE AND ADVOCATE, R/O: SHANTI NAGAR, ATHANI, TQ: ATHANI, DIST: BELAGAVI-59304. …PETITIONER (BY SRI. B.S.KAMATE., ADVOCATE) AND: 1. SRI. ANIL KRISHNAPPA PATTAN, AGE: 59 YEARS, OCC: SERVICE, R/O: SHANTI NAGAR, ATHANI-591 304, DIST: BELAGAVI. 2. SMT. SUREKA GURASIDDAPPA KAMBLE, AGE: 59 YEARS, OCC: HOUSEHOLD, R/O: ATHANI-591 304, TQ: ATHANI, DIST: BELAGAVI. RESPONDENTS (R1-R2-SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS. THIS WRIT PETITION IS LISTED FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, AN ORDER IS MADE AS UNDER: Digitally signed by PREMCHANDRA M R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:5589 WP No. 105509 of 2019 ORAL ORDER Sri.B.S.Kamate., counsel for the petitioner has appeared in person. 2. Emergent notice to the respondents was ordered on 08.02.2019. A perusal of the office note depicts that the respondents are served and unrepresented. The respondents have neither engaged the services of an advocate nor conducted the case as a party in person. 3. The captioned Writ Petition is filed seeking following reliefs: a) A Writ in the nature of certiorari or any other writ or order or direction, quashing the order dated 27.10.2018 passed by the III Addl. Civil Judge and J.M.F.C., Athani on I.A.No.10 in O.S.No.247/2012 vide Annexure-D. b) To pass an order allowing I.A.No.10 dated 09.08.2018 filed by the petitioner in O.S.No.247/2012 vide Annexure-C. 4. For convenience sake, the parties are referred to as per their status and rankings before the Trial Court. - 3 - NC: 2025:KHC-D:5589 WP No. 105509 of 2019 The plaintiff filed a suit for declaration that he has easementary rights of air and light to his property situated in Plot No.15 and 16 out of Sy.No.1239D of Athani and also for permanent injunction restraining the defendant or any person on his behalf from putting any construction in the area of plaintiff by making encroachment. The defendant filed written statement. An application in I.A.No.10 was filed under Order VI Rule 17 of C.P.C. to amend the plaint by inserting additional relief of mandatory injunction directing the defendant to remove the construction made by him by encroaching in the area of the plaintiff. The Trial Court vide order dated 27.10.2018 dismissed the application. This order is called in question in this writ petition on several grounds as setout in the Memorandum of Writ Petition. 5. Counsel for the petitioner urged several contentions. Counsel Sri.B.S.Kamate., in presenting his arguments submits that the Trial Court erred in holding that the relief sought in the application cannot be considered on the wrong assumption that there is no pleadings. He argued by saying - 4 - NC: 2025:KHC-D:5589 WP No. 105509 of 2019 that after filing of the suit, the defendant made constructions. Hence, it was incumbent on the part of the plaintiff to seek the proposed amendment. Counsel therefore, submits that the order may be set aside. 6. Heard the arguments and perused the Writ papers with care. 7. The short controversy is about the rejection of the amendment application. A true copy of the application is filed along with the writ petition and the same is marked as Annexure-C. A perusal of the same reflects that the plaintiff sought permission to insert para 10 a) and before 10 b), as under: “Alternatively, for mandatory injunction directing the defendant to remove construction made by him by encroaching in the area of plaintiff.” Plaintiff No.1A - Sri.Anand Nagappa Pattan had sworn to a declaration of fact in the form of an affidavit and he has clearly stated in the affidavit that after filing of the suit, the defendant has made the construction in the suit schedule property. If that be so, the reasons assigned for the rejection of the application - 5 - NC: 2025:KHC-D:5589 WP No. 105509 of 2019 that there is no pleading is untenable. The specific contention of the plaintiff was that after filing of the suit, the defendant has made construction. Obviously, the plaintiff could not have pleaded the same at the time of filing of the suit. The Trial Court has overlooked this aspect of the matter. Therefore, this Court deems it proper to quash the order passed by the Trial Court. 8. The Writ of Certiorari is ordered. The order dated 27.10.2018 passed by the III Addl. Civil Judge and JMFC, Athani, on I.A.No.10 in O.S.No.247/2012 vide Annexure-D is quashed. Accordingly, I.A.No.10 is allowed. 9. Resultantly, the Writ Petition is allowed. Because of disposal of the Writ Petition, all pending interlocutory applications if any are disposed of and the interim order if any granted by this Court stands discharged. Sd/- (JYOTI MULIMANI) JUDGE MRP/CLK List No.: 1 Sl No.: 46