Karnataka High Court
M/S Mysore Paper Mills Ltd vs Mr Kalidasegowda on 24 August, 2012
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 24TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NO.9158 OF 2012(GM-CPC)
AND
WRIT PETITION NO.10060 OF 2012(GM-CPC)
BETWEEN :
M/S MYSORE PAPER MILLS LTD
BHADRAVATHI
SHIMOGA DISTRICT-577 302
KARNATAKA
REPRESENTED BY ITS
MANAGING DIRECTOR. ...PETITIONER
(BY SRI M R C RAVI, ADVOCATE)
AND :
MR KALIDASEGOWDA
S/O MR VENKATAPPA
AGED ABOUT 60 YEARS
R/O D.NO. B-7/117, PAPER TOWN
BHADRAVATHI
SHIMOGA DISTRICT-577 302
KARNATAKA. ...RESPONDENT
2
(BY M/S S.B.MUKKANNAPPA ASSOCIATES, ADVOCATES)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER DATED 16.02.2012 AT
ANNEXURE-A PASSED BY ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, AT BHADRAVATHI IN REGULAR APPEAL
NO.24/2010 ALLOWING THE I.A NOS. 1 & II FILED BY THE
RESPONDENT UNDER ORDER 6 RULE 17 OF C.P.C AND
ORDER 41 RULE 27 OF CPC RESPECTIVELY.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The respondent-plaintiff filed a suit against the petitioner for declaration and mandatory injunction to continue him in the original position as foreman in the defendant Company. On enquiry being held the plaintiff was dismissed. The same was questioned in O.S.No.74/1995. The trial Court dismissed the suit. Aggrieved by the same, he preferred an appeal. During the pendency of the appeal I.A.I was filed under Order 41 Rule 3 27 of CPC seeking to produce the documents mentioned therein as additional evidence. I.A.2 was filed under Order 6 Rule 17 of CPC seeking to amend the plaint. I.A.3 was filed by the petitioner-defendant under Order 41 Rule 27 of CPC seeking permission to produce additional documentary evidence. The appellate Court by the impugned order allowed all the three I.As. Being aggrieved by the order passed on I.As I & II the defendants have filed the present Petition.
2. The learned counsel for the petitioner contends that the impugned order is bad in law and liable to be set aside. That his application for amendment could not have been allowed at the appellate stage. That what is sought for through the amendment is the plaintiff's plea questioning the authority which dismissed him from service. That such a plea has never been taken in the plaint and 4 hence at the appellate stage he cannot be permitted to raise it on the first occasion. That it is a new plea. The authority dismissing him has since been accepted. The issues are re-framed on that basis and the suit was dismissed. The belated application should have been rejected. I.A. filed for production of additional documents being consequential to the order of amendment it is contended that this application too should have been rejected.
3. On the other hand, the learned counsel for the respondents defends the impugned order. He contends that the amendment is just and necessary for deciding the dispute between the parties. That by virtue of the amendment what is sought to be pleaded is that the authority that dismissed him from service did not have any authority to do so. In terms of the memo dated 7-7-1994 it 5 is pleaded that this memo was not within his knowledge. That only subsequently he was made known of the same. He consequently filed the applications under the Right to Information Act and procured these documents. Hence, at the earliest point of time this application is filed. Hence, he pleads that the Writ Petition being devoid of merits is liable to be dismissed.
4. Heard the learned counsels and examined the impugned order.
5. The appellate Court while allowing I.As I & II declined to pass any orders on the ground that the application is barred by time. It held that there is no necessity for the Court to give a finding with regard to the objection of the defendant Company that is taken by him. It was of the view that the question of limitation will not 6 arise while considering the amendment application. I'am unable to accept the reasoning of the appellate Court. The appellate Court fell in error in misapplying the applicable law. The law of limitation is necessarily applicable even in a case of amendment. To hold that it is well settled position of law that the question of limitation does not arise for consideration at all, is alien to law and hence on this ground alone the impugned order requires to be set aside.
6. By considering the application the appellate Court was of the view that the amendment is required for the determination of the real dispute in controversy between the parties. Therefore, challenge to the legality of the memo dated 7-12-1994 is the real dispute in controversy. That until and unless such order is questioned in a Court of law the dispute would continue to remain. In 7 support of the application seeking amendment the plaintiff has pleaded that it was only under the Right to Information Act, 2005 that he was able to collect the same through his Advocate. Therefore there is no delay in filing the application. On perusal of the material produced herein and in view of the contentions advanced, there is no reason forthcoming as to when the plaintiff was made known of the memo dated 7-12-1994. If his case were to be accepted then he was waiting for promulgation of the Right to Information Act, 2005. It pre-supposes that he was aware of the memo much earlier. If that were to be the case nothing prevented him from seeking a copy of the same from the employer, namely the defendant. He has failed to do so. There is no material to show when he made such a request and therefore he had to wait for the promulgation of the Right to Information Act to seek the document. Hence, the contention on that front cannot be accepted. 8
7. It is further contended that the entire controversy would rest on this document. The reading of the affidavit does not disclose that such a fact was within his knowledge at an earlier point of time. The plaint averments would show that he never raised the issue with regard to the competency of the officer to issue such an order. Consequently the issues were framed. Unless there is a plea there cannot be an issue. When there is no plea questioning the authority of the employer's right has been raised, he therefore cannot be permitted to raise this plea at such a belated stage after suffering a Judgment & decree at the hands of the trial Court and without there being any substantial reasons as set out in his affidavit to allow the same. Hence, I'am of the considered view that the reasons stated in the affidavit in support of the application do not lend any credence for allowing the said application. Hence, 9 I'am of the considered view that the appellate Court committed an error in allowing the application for amendment purely on the ground that it is necessary for the determination of the real dispute in controversy between the parties. On failure of the plaintiff to substantiate that he was aware of these documents at an earlier point of time the Courts would necessarily draw an inference that he was aware of these documents from the very inception and he has failed to produce it for consideration. Inference would necessarily need to be borne out from the pleadings as well as the reasons assigned in the affidavit filed in support of the application. Under these circumstances, the reasonings of the trial Court that it is necessary to determine the dispute between the parties is therefore erroneous. The dispute between the parties has since been settled by the Judgment & decree of the trial Court it is the appellate Court that is hearing the 10 said matter. Hence, on these grounds I do not find any ground to interfere. The appellate Court was justified in passing the impugned order.
For the aforesaid reasons, the order dated 16-2-2012 passed on I.As I & II by the learned Additional Senior Civil Judge & JMFC, Bhadravathi, in R.A.No.24/2010 is hereby set aside. I.As I & II filed by the respondent-plaintiff is rejected. Consequently I.A.III stands rejected as being infructuous.
Ordered accordingly.
Sd/-
JUDGE rsk/-