Karnataka High Court: Krishna S. Dixit J. set aside the impugned order and allowed the petition.
The facts of the case are such that the petitioner has filed the instant suit for declaration and injunction for assailing the order rejecting the application filed under Order VI Rule 17 Section 151 of Code of Civil Procedure, 1908 declining leave to amend the plaint for introducing the ground of “easement of necessity” in terms of Section 13 of the Easements Act, 1882.
Counsel for the petitioners submitted that the suit is for declaration and injunction concerning the right of way which is a public way and the respondent should not interfere with the same. It was further submitted that what is sought to be introduced by way of amendment to the plaint is only the ground of easement of necessity; thus the nature of the suit does not much change and any amendment would inevitably cause some change but what the courts need to see is the enormity of change and the consequent amount of prejudice that the other side would suffer which in this case would be insubstantial in nature.
Counsel for the respondents submitted that the amendment if sanctioned would amount to permitting the plaintiff to take up inconsistent plea which the law frowns.
The Court observed that the principle of inconsistent pleas as argued by the respondents, i.e. the first contention regarding the public way and the other contention regarding the easement of necessity would tantamount to a contra plea, does not merit acceptance as Section 13 of the Act which enacts the easement of necessity presupposes dominant heritage on one and the servient heritage of another even then there is nothing repugnant in a public way becoming a dominant heritage. It was also observed that the impugned order of the kind is treated as a discretionary one and some prejudice is being caused to the respondents by petitioner amendment of the plaint, it is tritely said that there is no prejudice to a party which cannot be compensated.
The Court thus held that the “leave is accorded for amending the plaint subject to she paying the cost of Rs. 5000/- to the respondent within three weeks.”
In view of the above, the petition was allowed.[M.P. Puttamma v. V. Chittibabu, 2021 SCC OnLine Kar 444 , decided on 05-02-2021]
Arunima Bose, Editorial Assistant has put this story together.