Karnataka High Court
C.R. Janardhan vs Smt. N.S. Vinutha And Anr. on 10 January, 2002
Equivalent citations: AIR2003KANT393, 2002(3)KARLJ326, AIR 2003 KARNATAKA 393, 2003 AIR - KANT. H. C. R. 75, (2002) 3 RECCIVR 763.2, (2002) 3 ICC 633, (2002) 2 CIVILCOURTC 538, (2003) 1 HINDULR 222, (2003) 1 ICC 740, (2003) 1 KCCR 70, (2003) 1 CIVLJ 824
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. This civil revision petition directed against the order dated 3-8-2000 passed on LA. No. V in Original Suit No, 2377 of 1993, is at the instance of the defendant in the suit, who is aggrieved by the order under which the application of the plaintiffs for amendment of the plaint has been allowed.
2. The suit was one for permanent injunction and it had progressed to the stage of leading evidence of the parties. At that stage, the plaintiffs came with an application to amend the plaint. The relief sought for by way of amendment was to add in prayer column in para 14 after the words 'judgment and decree':
"declaring that the plaintiffs are the absolute owners in possession and enjoyment of the suit schedule property and more particularly the property bearing No. 2/2 as described in the schedule to the plaint".
And also to add in para 14 after the words 'enjoyment of the suit schedule property by the plaintiffs':
"grant mandatory injunction directing the defendants to hand over possession of the portion of the suit schedule property namely property bearing No. 2/2 described in the schedule to the plaint, to the plaintiffs".
3. The said application was opposed by filing objections on behalf of the defendant. The principal contention urged on behalf of the defendant was that the said amendment virtually introduces a new case. The plaintiffs were giving a go-by to their original case and the relief sought for by way of amendment at a later stage nevertheless dates back to the date of filing of the suit and a relief of this nature is barred by limitation and as such, the application cannot be allowed. The defendant also contended that for the purpose of resolving the dispute which had arisen in the suit based on the pleadings of the parties, it was not necessary to allow such an amendment having the effect of introducing a new case and also on the ground of limitation the application has to be rejected.
4. The Trial Court formulated a point for its consideration on this aspect, namely.--
"Whether the applicants-plaintiffs have proved that the amendment sought is just and necessary to decide the controversy between the parties effectively and finally?"
5. The suit averment originally was that the second plaintiff is the owner of the suit schedule property in dispute. The second plaintiff has entered into an agreement to sell the same in favour of the first plaintiff and while the matter stood thus, the defendant who according to the plaintiffs' averments is a third party (stranger) who tried to interfere with the possession and as such, it became necessary for the plaintiffs to seek an order of protective injunction against the defendant. The sole defendant in the suit, on the other hand, pleaded that the second plaintiff-owner of the property had entered into an agreement for sale of certain portion of the property in favour of his wife and they had also been put in possession and the defendant had not indulged in interfering or trespassing of any of the portion of the property belonging to the plaintiffs in which he had no interest. The defendant contended that he was put in possession pursuant to the agreement and as such, he is in peaceful possession and enjoyment of the property and the question of he being accused trespassing or interfering with the possession of either of the plaintiffs does not arise. In the light of such pleadings, relevant issues had been framed.
6. At the stage of evidence being commenced, the plaintiffs came with the application praying for amendment of the plaint in terms as indicated above. The case of the plaintiffs was that having regard to certain subsequent developments, namely that the defendant occupying the suit schedule premises during the pendency of the suit, it became necessary for them to seek for an amendment of the plaint and seek for such consequential relief of recovery of possession of the property which they had lost during the pendency of the suit. It was pleaded that this development took place in the context of interim application which had been filed by the plaintiffs and, which had been dismissed and the miscellaneous first appeal as against this order also having been dismissed, the defendant took advantage of the same and entered into possession of the property. The defendant, on the other hand, had contested this position and had averred that he was in possession ever since and in fact having been put in possession by the second plaintiff pursuant to the agreement in favour of the defendant's wife.
7. The learned Trial Judge observed that the defendant having not denied the title of the second plaintiff in respect of the suit schedule property and having regard to the subsequent developments as pleaded by the plaintiffs in the application for amendment, it was just and necessary to permit the plaintiffs to amend the plaint. The learned Trial Judge also observed that even though new reliefs are sought for by way of amendment, same have reference to earlier pleadings and having regard to the object of Order 6, Rule 17 of the Code of Civil Procedure which is to avoid multiplicity of proceedings, the application requires to be allowed. Though the defendant had specifically contended that it amounts to introduction of a new case and praying for a new relief based on a new cause of action and the question of limitation arises, this aspect of the matter had not been fully gone into by the learned Trial Judge and has been in fact lost sight of and the submission of the learned Counsel for the petitioner is that the learned Trial Judge erred in not taking into consideration such submissions on behalf of the petitioner-defendant particularly that the amendment, if allowed, has the effect of introducing a new case and permitting the plaintiffs to seek for relief based on a new cause of action and also that the cause of action being a new one, independent of the cause of action originally pleaded, it cannot relate back to the date of filing of the suit.
8. In this view of the matter, Sri Sriram, learned Counsel appearing on behalf of the petitioner, urges this Court, that this civil revision petition has to be allowed and the application for amendment requires to be rejected.
9. Sri Mohan, learned Counsel appearing on behalf of the respondents-plaintiffs, on the other hand submits that the amendment was necessitated due to the subsequent developments as pleaded in the ap-
plication for amendment, namely that during the pendency of the miscellaneous first appeal before the High Court, the defendant forcibly took possession of the portion of the suit schedule property bearing No. 2/2 and as such, in view of this development, an additional relief was sought to be added, namely relief of mandatory injunction directing the defendant to hand over possession of the portion of the suit schedule property, namely property bearing No. 2/2. The prayer for declaration also came to be added in this application. The learned Trial Judge was of the view that the prayer for declaration was of no consequence inasmuch as the defendant had not denied the title of the plaintiffs and the other relief for grant of mandatory injunction to direct the defendant to hand over possession being due to the subsequent developments, it was just and necessary to allow the application.
10. The question that really arises is, as to whether the said application for amendment seeks to introduce a new case and on a new cause of action, to be relied upon for seeking further reliefs in the suit? The learned Counsel for the petitioner has strongly urged that allowing of the application for amendment has the effect of reviving a time barred cause of action. An amendment of this nature cannot be allowed as the plaintiffs can always contend at a later stage that the relief sought for by way of amendment nevertheless dates back to the date of filing of the suit and in such an event, the defendant will be pre-empted from a valid defence in the suit.
11. Insofar as the aspect of the amendment praying for a relief based on a new cause of action is concerned, it cannot be disputed that if the said cause of action in respect of which a relief assuming that it is permission sought for by way of amendment; is really one which introduces a claim based on a new cause of action, then such amendment can take effect only from the date of allowing of the application for amendment and in this regard, it cannot relate back to the date of filing of the suit itself. This aspect of the matter is clarified by the ruling of the Supreme Court in the case of Vishwambhar and Ors. v. Laxminarayan (dead) through L.Rs and Anr., .
12. The further question and the apprehension of the learned Counsel for the petitioner-defendant is that when the application for amendment is allowed, that it will necessarily relate back to the date of filing of the suit cannot be accepted in totality having regard to the law laid down by the Apex Court in the case of Ragu Thilak D. John v. S. Rayap-pan and Ors., .
In a suit for a decree of permanent injunction against the defendants and to restrain the defendants from demolishing certain compound wall described in the suit schedule property, the plaintiff sought for an amendment of the plaint pleadings and additional relief claimed during the pendency of the suit by way of an additional prayer praying for damages in respect of demolition of the compound wall. The plaintiff contended that the defendants had, during the pendency of the suit, demolished the compound wall and as such, it became necessary for the plaintiff to add an additional prayer as the initial prayer of restraint order not to demolish the compound wall did not survive for consideration anymore and the only possibility was by way of alternative prayer of relief to seek for damages and as such, the plaint was sought to be amended by adding this additional prayer. The Trial Court rejected the application for amendment and the High Court also dismissed the revision as against this order. In further appeal to the Apex Court, the Apex Court allowed the appeal and the application for amendment observing that the scope of exercise of power of the Court to allow an application for amendment is a wide one and can be exercised at any stage of the proceedings in the interest of justice on the basis of settled guidelines and principles in respect of amendment of the pleadings and that the Courts while entertaining such applications, rather than adopting a highly technical approach, a liberal approach should be followed and the technicalities of law should not be permitted to hamper the Courts in the dispensation of justice to the parties. The Apex Court also observed that the main object of Order 6, Rule 17 is to avoid uncalled for multiplicity of litigation. To the defence put up by the plaintiff that allowing of the application for amendment would virtually amount to allowing a time barred claim and as such the application could not be allowed, the Apex Court answered this plea by observing that in the circumstances of the case, the plea of limitation being disputed could be made a subject-matter for an issue after allowing the amendment prayed for.
13. As per this decision of the Apex Court, even assuming the plea of limitation is raised and the circumstances warrant allowing of the application for amendment, the question of limitation may still be kept open and the parties may be allowed to lead evidence on the same and an issue may be framed and if this issue is answered against the plaintiff, that would definitely disentitle his claim.
14. Allowing of an application for amendment in the instant case does serve the purpose of application for amendment. It is no doubt true that the petitioner-defendant had raised two pleas; that it has the effect of introducing a new case and a new cause of action and the amendment has the effect of reviving a time barred cause of action. The interest of the parties and interest of justice will sub-serve if this aspect of the matter is taken note of and necessary directions are issued to the Trial Court on this aspect of the matter.
15. It is clarified that it is open to the petitioner-defendant in the suit to put forth such pleas which are open to him including the plea that the amendment has the effect of permitting the plaintiff to plead a new case based on a new cause of action subsequent to filing the suit and also that if any of the prayer sought for is barred by limitation, it may be so pleaded by the defendant and in which event, the Trial Court has to necessarily frame an issue in this regard and answer the same based on the materials before the Court which are placed by the parties.
16. With this clarification, I am of the view that no interference is called for insofar as allowing of the application is concerned, but the parties may be permitted to plead their respective cases and the Trial Court to frame necessary issues and dispose off the same.
17. The civil revision petition is disposed off accordingly with these observations. The question as to whether allowing of the application for amendment relates back to the date of filing of the suit or can take effect only from the date of allowing of the said application for amendment is again dependent on the type of prayer and the cause of action that is pleaded for by way of amendment and this is an aspect which the Trial Court has to necessarily answer having regard to the pleadings of the parties.