Karnataka High Court
Sri P Sethumadhavan vs Sri M Shankar Reddy on 13 January, 2021
Author: S R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO.42715 OF 2015(GM-CPC)
BETWEEN:
SRI P SETHUMADHAVAN
S/O M. SHIVASHANKARAN NAIR
AGED ABOUT 60 YEARS,
R/AT NO.55, 9TH "A" CROSS
GOKULA I STAGE, I PHASE,
BANGALORE-560 054.
...PETITIONER
(BY SRI.V.VISWANATH SETTY, ADV.)
AND:
SRI M SHANKAR REDDY
S/O LATE MUNIYAPPA NREDDY
AGED ABOUT 64 YEARS
R/A. NO.78, 24TH MAIN,YELLAMMA DEVI NIYALA
AGARA VILALGE, SARJAPUR ROAD,
BANGALORE-560 034.
PRESENTLY RESIDING AT
NO.663/A, 13TH CROSS, 27TH MAIN,
1ST SECTOR HSR LAYOUT,
BENGALURU-560 102.
...RESPONDENT
(BY SRI.G.V.SHASHI KUMAR, ADV.)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED: 10.07.2015 PASSED BY THE ADDITIONAL CIVIL JUDE &
JMFC AT ANEKAL IN O.S.NO. 707/2008 ON I.A.NO. 5 UNDER
ORDER 6 RULE 17 R/W SECTION 151 CPC ANNEXURE-H BY THE
ALLOWING THE ABOVE WRIT PETITION AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
This petition by the plaintiff in O.S.No.707/2008 is directed against the impugned order dated 10.07.2015 on the file of the Additional Civil Judge and JMFC, Anekal whereby the application I.A.No.5 under Order VI Rule 17 read with Section 151 of CPC for amendment of plaint filed by the petitioner was rejected by the trial Court.
2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.
3. The material on record indicates that it is not in dispute that the aforesaid suit for Perpetual Injunction and other reliefs filed by the petitioner-plaintiff in respect of the suit schedule immovable property was originally instituted on 15.12.2008. It is also not in dispute that the defendant filed his written statement on 22.06.2009. On 07.04.2012, the plaintiff filed the instant application I.A.No.5 seeking amendment of the plaint by seeking to incorporate additional prayers for specific performance and by making necessary amendment to the body of the plaint also. The 3 said application having been opposed by the defendant, the trial Court proceeded to pass the impugned order rejecting the application, aggrieved by which, the plaintiff is before this Court by way of the present petition.
4. A perusal of the impugned order will indicate that the trial Court has rejected the application on the ground that the proposed amendment changes the nature of the suit and its cause of action and no ground was made out by the petitioner to establish that the proposed amendment was necessary to determine the real issue in controversy between the parties.
5. Perusal of the plaint averments will indicate that it is specifically pleaded that on 20.05.2002, defendant executed an Agreement to sell in favour of the plaintiff agreeing to sell the suit schedule immovable property in his favour after receiving valuable advance sale consideration from him; subsequently, more advances were received by the defendant from the plaintiff and necessary endorsements were made in the agreement in this regard; in the endorsement dated 25.08.2003, both parties have 4 mutually agreed to extend the time stipulated for completion of the sale transaction up to 18.04.2009.
6. As stated supra, the suit was filed on 15.12.2008. After having pleaded that the defendant was trying to alienate and put up constructions on the suit schedule property during the subsistence of the aforesaid Agreement to sell dated 20.05.2002, plaintiff pleaded at paragraph 8 of the plaint that he was specifically reserving his right to seek specific performance since the Agreement continued to remain valid and subsisting up to 18.04.2009.
7. In the application, I.A.No.5 filed by him, plaintiff sought to incorporate the relief of specific performance by making corresponding and necessary amendments to the body of the plaint. In the affidavit in support of the application, plaintiff specific averred that having regard to the fact that time for performance of the contract under the sale Agreement had been mutually extended up to 18.04.2009, the relief of specific performance would have been premature on 15.12.2008 when the suit was filed only for perpetual injunction since the defendant attempted to 5 alienate and put up constructions on the suit schedule property.
8. Perusal of the plaint averments as well as the averments in the application and affidavit and the other material on record will clearly indicate that the proposed amendment was sought only to incorporate additional relief of specific performance along with corresponding amendments to the body of the plaint; the proposed amendment was merely amplificatory in nature and the same did not in any way change or alter the nature of the suit or its cause of action as wrongly held by the trial court in the impugned order; so also, the material on record also indicates that proposed amendment was necessary not only for adjudication of the issues in controversy but also to prevent multiplicity of proceedings. The said reasons assigned by the trial court in the impugned order are clearly contrary to well settled principles of law governing amendment of pleadings and consequently, the same deserves to be set aside.
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9. Learned counsel for the respondent submits that the proposed amendment was barred by limitation and the application, I.A.No.5 was liable to be rejected on this ground also. In this context, it is relevant to state that the said rights/defence/contention of the respondent can be adequately safeguarded by leaving open the issue/question of limitation which is a mixed question of law and fact to be decided by the trial court at the time of final disposal of the suit by directing that the allowing of I.A.No.5 shall not relate back to the date of the suit but that the same shall be reckoned as on the date of filing of the application, I.A.No.5 dated 07.04.2012 and not from 15.12.208 when the suit was filed as held by the Apex Court in the case of L.C.Hanumanthappa vs H.B.Shivakumar- AIR 2015 SC 3364.
10. In the result, I pass the following:
ORDER
i) Petition is allowed.7
ii) Impugned order dated 10.07.2015 on the file of the Additional Civil Judge and JMFC, Anekal is set aside.
iii) I.A.No.5 filed by the petitioner is hereby allowed;
iv) Petitioner is permitted to carry out amendment and file amended plaint within a period of six weeks from the receipt of a copy of this order;
v) Liberty is reserved in favour of the respondent-defendant to filed additional written statement to the amended plaint;
vi) All rival contentions urged by both sides including the issue/question of limitation are kept/left open to be decided by the trial court at the time of final disposal of the suit;8
vii) It is further directed that the amendment shall not relate back to the date of the suit but that the same shall be reckoned as on the date of filing of the application, I.A.No.5 dated 07.04.2012 and not from 15.12.2008 when the suit was filed before the trial court.
Sd/-
JUDGE Mds.