Karnataka High Court
B S Ratan Kumar Alias B S Ratan Singh vs M/S S B Minerals Hospet on 2 September, 2009
Author: Ajit J Gunjal
Bench: Ajit J Gunjal
L»)
B S PRITHVIRAJ S!NGH
S/O LATE B H SHANKAR SENGH
MAJOR
RIO RANIPET WARD NO 5
HOSPET
HOSPET TQ
BELLARY DISTRECT.
B s DEEPAK SINGH
S/O LATE B SATHYANARAYANA S!NGH
R/O RANIPET
WARD NO 5
HOSPET
HOSPET TQ
BELLARY DISTRICT.
B s SREENIVASA SINGH V
S/O LATE B H sHAN1<.A'R's:NGH"
R/0 RANIPET I
WARD NO 5
HOSPET
HOSPET TQ _ ;
BELLARY DESTRl.C'l'.
BS. pA_NDuVRANa3AV.s!1--sou, '
gro LATExB H sHA;N's«:A:<»sn«:GH _
RJO R/\N!PE"F --a_ ' .
WARD N05 _
HOSFfET' %
HOSPET TQV
V .l3ELLAR'a" D'IsI11':c'I'.'=_ V
BAJAERAJ SIEQGH. ..... .. v
S/DIATEB s BALAJE SINGH
E1/O'RANlP~ET
' " .w'A.13DNO__5 " ~.
'H'OS'FE..T
= Hosp§f_r'I'Q
BE.LLARj':i--( DISTRICT.
:3 SAIIIAN DAKUMAR swan
3/0 B SUBBARAJ smc
x 'T R/o RANIPET
WARD NO 5
HOSPET
HOSPET TQ
BELLARY D!STRECT.
B S DILIP SINGH
Age: 30
S/O LATE B S SATHYANARAYANA SENGH
R/O RANIPET
WARD NO 5
HOSPET
HOSPET TQ
BELLARY DESTRICT. _
PRAVEEN SINGH
Age: 28
S/O LATE B S SATHYANARAYANA SINGHA
R/O RANIPET '
WARD NO 5
HOSPET
HOSPET TQ .
BELLARY DESTRICT. V __
SMT JAYA BAE
Age: 53
W/O LATE LAXVMENAR5x$?AN'A~V$;N§3'Ht'V*-__ 7 ~
R/O RANIPET _ '
WARD N0 A
HOSPE"?
HOSPET A
BELLAR':'..l3iSTRI(§T.
SMT R'E4KH'/'-. SEVNGHA
Age:"{6 ' M V "
D/O LATE ALAXNIENARAYANA SENGH
R/0 RANTPET , '
WARD NO 5* V
' '?.HO_SPET '
HOSPET TQ
' = .. _ BELLAP)' '1:1:sTR1cT.
_ ASNi?T:"l<1.E,VNUT}'(A"SiNGH
"'Age:43gf V'
D/OLATE LAXMENARAYANA SENGH
RfC>ARANlPET
WARD NO 5
HCJVSPET
A HOSPET TQ
H.-'BELLARY DESTRICT.
SMT SUNITHA SENGH
Age: 42
D10 LATE. LAXMINARAYANA SINGH
2E.
M/S S V K MENING CO
HOSPET
BY ITS PARTN BR
...RESPONDEN"vFVSVR. fl
{BY sMT.s.R.ANURADHA, ADV FOR R1,2,3,5,6, f '
SRLHEGDE, NEERALAO: AssTs, ADVS FOR R4,' 19, 10,7 ~
TI-HS PETITION IS FILED 'L§N'DER ARTICTLE1S-VQEOVRND: 227 " V
RR; 1- 15; " " ~ ~
SRLHANUMANTHAREDDY SAHUKAR, ADV FOR R7, 8.,"-19, 121,- ..
SRLSHASTRY &;I-1EGDE AssTs FO * " "
R16 SD, 1
SRI.V.M.SHEELVANT, ADV FOR R17,
R18 AND 20 SD) '
OF THE CONSTITUTION OF 1NDIAfRRAY1NO_ TOQUASH THE
ORDER DATED 25.09.2008 IN sO"RAR.,_As iA"NO.237 AND 23
PASSED BY THE PRL. CIV1'L. JUDGE {JR.DN}._AND JMFC, HOSPET
IN O.S.NO.152/2001 AT ANNEXLJRE}-'A AND _ET.C.,
(IN w.Rs.No.60007+60008/.2009).
BETWEEN
B S' 'DEEPAKj-SINCE
OCC BUs'm.§3Ss»'."-..Z *
s/OLAT SR! --SA'I'Y)l.NA'R_ Y.AI:.=~ SENGH
BSDMDIRVSINVGH -_ A
,Age:30 ' "
.. « ;.fiocc0Rus1NEs's~.. A V
~ s/O_;.,AT.»:AsR1 SATYANARAYAN SINGH
V' " -. B s._pVRAV=vE1é'R..s1ROH
Ag,e_:'28_ "
.=._OCC 30s_1Ngss
' ' _ S/O DAT BSRE SATYANARAYAN S1NGH
' 1'-...Li1;:ARIv-3 R/AT RAN! PETH
WARD NO 5 HOSPET
* HOSPET TQ
"D1sT:BELLARV.
PETETEONERS
(By Sri. HEGDE, NEERALAGI & PATIL ASSTS, ADVS)
SMT B S ANNAPURNAMMA
Age: 75
W/O LATE B S SATYANARAYAN SINGH
OCC HOUSEWEFE
R/AT RANI PETH
WARD NO 5
HOSPET
TQ HOSPET
B s RATAN KUMAR ALIAS B s RATAN é':«N<:'}".--4_ A'
Age: 45 .'
S/O SATYANARAYANA SINGH ._
OCC BUSINESS V
R/AT RANIPETH
WARD NO 5 HOSPET
TQ HOSPET
M/S S B MINERALS . t
A PARTNERSHIP FIRM REHBWTS --. A
MANAGINGVP/xR'FN_ER " _ '
B s GOPAL?3iN\:fl'1H.,'3/0 LATE BS SHANKAR'
SINGH _ '-
RALN'ESP'ET ";vA }ii§§:.;:~:'0sPEI
B s;._Go--;>AL.sV:§'wV~;*.S'}:;_»'A *
Agei-50 «. ~ V _ ~V
S/O LATE B H SHANKAR SiN_C:i~E
OCC BIJEINESS - I '
M_ANANDiN(3 DIRECTOR 0% THE
S, ._§RESPONDENT"NQ 1 FIRM
""._ocC Bus_1NE;s's
PARTNER. 0? s B MINERALS IST
_ B s°r{R:Ti~{v._;RAJ SINGH
" ..Ag3.;4:':. ' S'
S:'O_L=A_TE i3=.L_a SSHANKAR SENGH
RBs?O.\1BENT FIRM
R{AT,RANlPET WARD N0 5 HOSPET
HOSPET TQ
V "*3 3 SRENEVAS SENGH
«Age: 49
S/'0 LATE B H SHANKAR SENCSH
OCC BUSINESS
PARTNER OF S B MINERALS IST
RESPONDENT FIRM
R/AT RANIPET WARD NO 5 HOSPET
HOSPET TQ
B S PANDURANGA SiNGH
Age: 50
S/O LATE B H SHANKAR SINGH
OCC BUSINESS
PARTNER OF S B NHNERALS 1ST ~
RESPONDENT FIRM I
R/AT RANIPET WARD NO 5 HOSPET
E-IOSPET TQ
S B JAiRAJ SINGH
Age: 45
S/O LATE B S BALAJ1 SINGH
OCC BUSINESS V ' z
PARTNER OF S B MiNE,R.AILS IS'?
RESPONDENT FIRM ' ' g ;
R/AT RANIPET WARD NO 5 HOSPET :
HOSPETTQ "
BsNANDA;RU§§5SA_'RVsIW«H
Age:35_. 44 1 ' A ' .
S/O B St}BBARAJ"S'iNf3.H4.°::"«
OCC BU'SiN]L53SS 7] ' ' _
PARTNER OPS B_MiN E'R..A1f;:1__1sT .
RES_PONDENT!?I~RM. _ ' __ " _
R/AT RAN ;RE'r.wA-RD No-.5 HGSPET
HOSPETSTQV ' _ 1 = _
4;r3"s :T,AxM1NARAY'ANA SINGH
°<SfQ__B HusHAN:<AR.._S_IN~:3H
V .. _ SINCEBECEASED BY HJS LRS
joay SR/':1?-3'AYA BAI wxo LATE LAXMENARAYANA
---S:NGH AGE 53 YEARS occ HOUSEWWE
~ _ QR/0 RANiPET
' HOSPET
I013)' SMT REKHA STNGH
Age: 46
33/0 LATE LAXMWARAYANA SINGH
REO RANIPET
HOSPET
IOC) SMT REKA SINGH
Age: 43
13/0 LATE LAXMINARAYANA SINGH
R/O RANIPET
HOSPET
{Gd} SMT SUNITHA SINGH
Age: 42
D/O LATE LAXMINARAYANA SINGH
R/O RAN!PET T b
HOSPET " '
Iom SMTRANISAMYUKTHA
Age: 32 ;
D/O LATE LAXM!NARAYANA SINGH
RK)RANwET 'a_", Ia.--,T; ';
HOSPET. 'g _.REsPOIu3ENTs 3
(BYSRLUME&iMESTm,ADVFORCW2, O .',
SRi.V.M.SHEELVANTH, At:w.I:<'OR R3 TiO;7) T' I 'I
THESE PETITIONS ARE FILEDvI.UNi3ER'I--AI<TIcLES 226 AND
227 OF THE CO1-«--TS'TITUTION 1.l$ID1A.._I?RA'?I'ING TO SET ASIDE
THE ORDER'»I3AT1ED 25'.e§.éoes:"iPASSED BY THE COURT OF
CHHL ~JUDGE; tfi&DN¢= HOSPET ON IA N020 RI
O.S.1\EG_, 152,/.2001' {_ANNE><URE--J) AND ETc.,
TIIESET PETITIONS'-..___CO'M1NG ON FOR PRELIMINARY
HEARING IN ''13,' GROU.P",.THIS DAY, THE COURT MADE THE
FOLLOWING: V_ '--
§_ ' ORDER
A:fter_ith..e matter is remanded from the Apex Court, as
affiptications are made by the petitioner who is
p1aintiff__I'NO;.;2.A IA~2O is filed under Order VE Rule 17 of the
: Cqde OfCivi1 Procedure Seeking amendment of the pleadings
it '.tO--»ir:trOduce certain additional materials and facts. IA--21 is
A I ..._aisO filed under Order VI Rule 17 of the CPC seeking for a
relief as against some of the proposed defendants. IA--"22 is
filed for transposing plaintiff No.2 as defendant,'--Ia¥2t43..Ei'sV
filed under Order 1 Rule 10 to irnpiead certain
defendants and IA--28 is for prodiu>Acti'0n&_c.f eeirtainflp-ab1ic--Ȏ
documents. All the applications are
the contesting defendants. The:"iearnedV._tria1V 'having it
regard to the scope of theapplicati{§n.és'*~a11ou}e'd" 22 and
28. The order passedfiion'I'A.+é:'{5::' are the subject
matter of ./The said writ
petitions are"fii'1edAA1i.hyfV defe--n_d--a_nt's and 11. In so far as
rejectiotnfof 2'3~,;ti1.e ?35d"pIaintiff is before this Court
in W.P."No.3_17'27/':§0C)8.._:Tt,:h.as. to be noticed that the order
passed on'iI~Ai--28V is qtiestioned by any of the parties to
.....
writ petitions are disposed of by this common 'ord'er. The parties will be referred to as per their rankingsin the trial court. The backdrop of the case can be T' --.sum_rnerised as follows:
;/.
:10: The petitioner is the 2nd plaintiff. Respondent No.-.._l6 is plaintiff No.2. Respondent No.4 is defendant No.5. --jl'ni.t'ia1l*yu, the plaintiffs filed a suit in 0.S.No.152/2001 l- the Prl. Civil Judge (Jr.Dn.) and of if declaration that the plaintiffs are e:iititled'* of the 15' defendant--fir1'n. It case »p.l.aintifff 'V . if is the wife of deceased .Sathy:anajrayana the 2nd plaintiff, defendant Ne.5-fit) children. The said Sathyanarayana as a joint family ventu,re..an'd__was in 'possession of 'certain mining lease and carried --.§fif1 the "D1.iSiIfl€SS iin'der the name and style of S.B.Mineral_s,i l~losp'et.'v.Ac~eording to the plaintiffs, it was a partnership firinoca.rryi.ng..--on mining operations. Suffice it to say1t*:ha_tio'aft_er the de-.a.th of Sathyanarayana Singh, there was i Hence, the present suit was filed for the relief' to 'i'dVeclia're that the plaintiffs are eligible as partners of defeindanthii No.1 firm as legal heirs of deceased if Sathfyanarayana Singh, to grant mandatory injunction 'directing the defendants to take the plaintiffs as partners of "the plaintiffs as legal heirs of deceased Sathyanarayana .9?
«rs t/ :11: Singh who was partner of defendant No.1 firm and for other reliefs". Initially, the suit was decreed as againstgiwhich defendant No.5 filed an appeal in R_A.No.19/2005;"'t*1+;e.f§e.t.§i"~ _ appeal was dismissed as against which before this Court in R.S.A.No.1833:=.,{20,0i5i_ confirmed the judgments and-decrees. of below'. Aggrieved by the said order, thee.._x5L"_gdefendan't: went to the Apex Court. The Ape:;;_."(7ou:.rit ~«.entertainedH the Special Leave. Petition and haspggseitthejutignients of all the three courts and:j,.tr.emit.ted, the"'ma'tteir..._to the court of first instancelmfori. ,:f:fesh:i?'idispe.salt inihiiaccordance with law. it is useful to extractiitlieobser'.?,ait,i.ons made by the Apex Court.
"Having 'heard learned counsel for the parties, we are of ,v_iew__ that"'end..gxof justice would be subserved if the ' Inai:t.er's._are"remitted to the trial court for fresh consideration in accorda--rit:e,i'with law. We do not wish to comment on the merits of the matters at this stage. Suffice it to state that reasons' given in the impugned order are unsustainable. We direct the trial court to expeditiously hear and dispose of the iwisuit, if possible, on day--to--day basis. However, if the trial 555 f I. :12: court proceeds to do so, the parties shall file their pleadings, if so advised.
Leave is also granted to the respondents.'ltoil.',:rn.a1%:e_T' . application for amendment, if sow advised)" 'said application shall be considered on its ownirieritsi. The Special Leave .7Pe_titionls.,_ flare t5disp.osed_V§ ofpx; accordingly."
After the matter is :as"i--_lp'oiA):lse.rved, these five applications are filed orders passed thereon are writ petitions.
3. lvlirisliipetty,Vle'a1*nedi_:coiir:.sel appearing for plaintiff No.2 submits thatrhaving regiardl to the fact that plaintiff No.1 has heriis'Lan.d»and has filed an affidavit in the Apex Coiurtpto_lthe~.e'ffect that she does not wish to prosecute the casheyi thei*.fllj'fdlA.iplaintiff was compelled to file the application lA~22 to transpose. He further submits that since the time if lifioif 'institution of the suit, certain events have taken place
-- necessitated in making this application for amending if "the pleadings so as to include the prayer of rendition of :13: accounts. He also submits that since the other defendants have floated certain other firms doing identical buSi.Fi€vS:$"..t_lTf.jy are sought to be made as supplementalgidefer'l.dant's.;_p.i~ Likewise, he submits that since they are"'ail.'_"ne'cVevssa1y parties, the learned trial Judge Was;'als*o not'~ rejecting the application to implead and.anzendivitlhiepleadings L' as Well as the prayer column to. rendition. accounts in respect of those firms _
4. Mr.Shee1vanth, lea1'I1ed*&counsel..ap¢p'e.aring for some of the proposgdp is no material placedihy -in support of his contention that most of tiher-.l:l5'l.ldefendant is being made use of by pro'po_sed ldefendants. He submits that the fact that some of the children of the A'--~ersitwhilef«.paftners of the firm have started a separate busi__r1es_s' "c:3._\Vi/.l~i'itself does not necessarily lead to a conclusion that the...iS1"- defendant firm and the proposed defendant firms i' are identical. J :14:
5. Mr.Neeralagi, learned counsel appearing for defendant No.5 opposes the grant of applications i.e., regarding amendment of the pleading and in so far as IA~2l and 23 are concerned; he impugned order. He submits theWi5amendIi'1ent application is made at a very stage... the trial Judge was not justifie:d'~..jn said" application inasmuch as it would 2nd plaintiff to include a and'iiaiso___enlarging the scope of the suit.
6. Mr.Hegde;learneda.counsel appearing for some of the proposedldeieindlants"als.o."Supports the impugned order. ad{fe'rti.ng' to the rival contentions, it is n;e»ees.s_a:y'~:q' the scope of Order V1 Rule 17 of the Code oi'.Civil Proc_ed.?ure inasmuch as in what circumstances an amendnientilcould be allowed. In this regard, it has to be ll..:i'noticed that proviso to Order VI Rule '17 is not applicable to
-- the case on hand inasmuch as the suit is instituted before "the amendment to the Code of Civil Procedure in the year 1E5:
2002. Thus, the proviso is not applicable. The Ap€Xv.C__OU.1"t in the case of A.K.GUPTA AND SONS LTD., VS. DAivfb;J;&R VALLEY CORPORATION (AIR 1967 so 96) i-
thusi D' .
"In the matter of alloiving aniencirneint of general rule is that Eiy " V amendment to set up case >d(.:]'Vi.¢VVl§C8_1.1Se of action particu1ar1y_..§}Jh.ei3 new cause of action is bparrped. iarinendment does not corsstituteqtheiadciition .a neiiv cause of action or raise' amounts merely to a differe_nt or a.i:idVit'io_na1'approach to the same facts the amendment is toiallowed even after expiry of the ' "3?.st;.atut_ory period... of limitation."
noticed that the prayer sought for in the suitis OI}_,€.:iif:1CiL1d€ the 2nd plaintiff as a partner of the firm aisojfor seeking mandatory injunction. It has to be 'dpnoticed that the claim regarding rendition of accounts is to :16: be found in paras 7, 8, 9, 10 and l 1. Para ll of the pleading would read thus: T «The defendant No.5, taking advantage _ the firm and drawing entirev.1/>83} i.sf_th"e_V it absolute share of his own ahd plaintiffs and as well asother heiiis'iiof;'d*eeeased * it B.Sathyanarayana daeiendaiitilhlorii failed to distribute the sha'r.eit.o -and enjoying the same as if p it regard, plaintiffs asked 4tI:;.e share ~ahd'r§¢uestiojned their rights, to which, them" it replied and totally nieglieetedii plaintiffs have right to seek an way of injunction against the ii'l\lo--...5..«restraining the defendant No.5, his ...Aa.g¢r1fig;rattorneys or anybody claiming through him i"F£r¢h1"1"r:-phhwing the plaintiffs share from the first it defendant firm tili the disposal of the suit." i..flThis._wouEd be a clear case where there is an allegation
-- against defendant No.5 drawing the entire 1/ 8%" share of the hiiprofit which the plaintiff No.2 claims that he is legitimately ,_ =2! '/ :17: entitled to. This would be a cause of action andtthe pleadings are in place for the 2nd plaintiff to _ of the prayer column for rendition of accounts.» at first blush, the claim appears tofgpbe amendment is on the basis of,>pleading_itself, theidecisionof A.K.Gupta is squarely applicabi'e"'...:iHence;'Iarn View to that extent the order pia'ssedthe._pl.ear.ned Jiudigie on the application filed to amend the the prayer column cannot:b'e««g..fa_ulted. =:
9. Inso far'as1ii.;gfVpplic_atio1j"fo_rmtra§r1sposition is concerned, it has to be noticed._that'plai«ntiff No.1, the mother of plaintiff No.2 had contested".iAt11s"'-proceedings all throughout but howeyer chose "to: stay away from the proceedings before the jbyjiling an affidavit. Thus, the 2nd plaintiff was Ai'eo1'i.strairi.edvitoipi'-make this application so as to see that the suit'-«does fail for non--joinder of necessary parties in the u""'--__b"eyent plaintiff No.1 withdraws from the proceedings. Hence, _.ito'tha't extent, the learned trial Judge was also justified in granting the said application. IA--2O is of no consequence :19: firm. Indeed, except asserting that such an action has taken place, there is nothing on record to show that the and profits of these firms have been generated"'frorri defendant firm. The fact that all the ., and defendant No.1 firm are engaged iron ore does not necessarilyylead aviiconcliisionithat';
are fictitious firms which haveiiiiiC:f;_iirrie_into' cause i wrongful loss to thevdefend'ant has to be noticed that the documents to be produced along with the any way indicate that in favour of defendant No.1 by the proposed defendant firms. flencepl-__ainii'ofii the View that the question of the "'firrns«'which have nothing to do with the ' eiX'istir1gffiri_m rightly rejected by the trial Judge. li1c'ide1';tal'ly, it has to be noticed that the rendition of accourits isfonly in respect of defendant No.1 firm of which i lathe 2"d"'plaintiff claims to be a partner. Obviously when the "'._Q*1*1"plaintiff has no interest in the proposed defendant firms 5 if ,'r 4 § 45 :21: offsprings who have got nothing to do with the defendant No.1 firm.
13. This court in the case of I-LAZIZ KHAN vs. SMT. MUNIYAMAM AND OTHERS am 200.; 72'si7'fi_'j--i ' has observed that the proposed ame.ndment.'_notihaving e_ffec't, it of making out a new case, amendrnent"'sought w-gator.' additional pleadings and an 'a.c_ldi.tional"/alternativte"reiief for * V recovery of possession,_ domir1antu.pu.rpose "of_a1l_03wing an amendment is to minirrii--sieg.th'e The power of the courts a p:1?ayelr'~for amiendrnent is quite wide and it can be "eXer_cise_d of the proceedings while it is true that ar'1?.er1'dment 'canniot be claimed as a matter of right andin all c__ircui'n'sta.nce, the general rule is that the courts 'should~.__i'be'~fi"li.berai while dealing with amendment applications; is also observed that the relief sought to be j introducedhibeing barred by limitation is not one of the :f..cri'teajia determine the application, because it is at best an
-- 'arguable point. The plea of limitation could be made an it "issue after the allowing the amendment prayed for to refuse :23:
15. Having given my anxious consideration, I am of the View that both the writ petitions are devoid of merit$.e.__iBoth the petitions stand rejected.
16. A11 contentions are left open.
; .
Jm/-