Karnataka High Court
Mr Bharat Bhushan Narang vs Mr Ashok Kumar Manchanda on 4 April, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.9286/2017 (GM-CPC)
BETWEEN:
1. MR.BHARAT BHUSHAN NARANG,
SON OF LATE OM PRAKASH NARANG,
AGED AABOUT 60 YEARS,
RESIDING AT NO.9,
NORTH PARK ROAD,
KUMARA PARK EAST,
BENGALURU - 560 001.
2. MR. VAIBHAV NARANG,
SON OF BHARAT BHUSHAN NARANG,
AGED AABOUT 35 YEARS,
RESIDING AT NO.9,
NORTH PARK ROAD,
KUMARA PARK EAST,
BENGALURU - 560 001.
3. PRAKASH ROADLINES LIMITED,
'PRAKASH HOUSE',
65/31 (NOW NO.108),
3RD CROSS, KALASIPALYAM
NEW EXTENSION,
BENGALURU - 560 002,
REPRESENTED BY ITS DIRECTOR,
VAIBHAV NARANG (ADULT).
4. S.M.KANNAPPA AUTOMOBILES PVT. LTD.,
NO.2, NEW MENTAL HOSPITAL ROAD,
(NOW KNOWN AS
DR.M.H.MARIGOWDA ROAD),
BENGALURU - 560 027,
REPRESENTED BY ITS DIRECTOR,
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BHARAT BHUSHAN NARANG (ADULT).
5. PRAKASH LEASING LIMITED,
NO.50, I MAIN ROAD,
VASANTHNAGAR,
BENGALURU - 560 052,
NOW AT: NO.7(49), II FLOOR,
KODAVA SAMAJA BUILDING,
I MAIN ROAD, VASANTHNAGAR,
BENGALURU - 560 052,
REPRESENTED BY ITS DIRECTOR,
BHARAT BHUSHAN NARANG (ADULT).
... PETITIONERS
(BY SRI.DHYAN CHINNAPPA, SENIOR COUNSEL FOR
SRI.ARUN SRI KUMAR, ADV.)
AND:
1. MR.ASHOK KUMAR MANCHANDA,
SON OF LATE MUNSHILAL
MANCHANDA,
AGED ABOUT 70 YEARS,
EARLIER AT: NO.1,
14TH MAIN ROAD,
VASANTHNAGAR,
BENGALURU - 560 052.
2. MR. SUDERSHAN KUMAR MANCHANDA,
SON OF LATE MUNSHILAL
MANCHANDA, AGED: ADULT,
RESIDING AT: NO.40,
BASAPPA ROAD,
SHANTINAGAR,
BENGALURU - 560 027.
3. MS. INDU BALA BATRA,
DAUGHTER OF LATE MUNSHILAL
MANCHANDA,
AGED: ADULT,
RESIDING AT: HOUSE NO.502,
19TH MAIN,16TH CROSS,
4TH 'E' BLOCK, JAYANAGAR,
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BENGALURU - 560 041.
4. MR.NIKHIL MANCHANDA,
SON OF SUDERSHAN KUMAR
MANCHANDA, AGED: ADULT,
RESIDING AT: NO.40, BASAPPA ROAD,
SHANTINAGAR,
BENGALURU - 560 027.
... RESPONDENTS
(BY SRI.S.S.NAGANAND, SENIOR COUNSEL FOR
SRI.VIKRAM, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 1.2.2017
PASSED BY THE LD. XV ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN O.S.NO.5053/1990,
IN RELATION TO I.A. ORDER RULE U/O 6 RULE 17 VIDE
ANNEX-A FILED BY R-1 HEREIN, WHEREBY THE
PROPOSED AMENDMENTS TO THE PLAINT OF THE R-1
HAVE BEEN PERMITTED TO BE MADE.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Defendant Nos.5 to 9 in O.S.No.5053/1990 being aggrieved by order dated 01.02.2017 allowing the application filed by the plaintiff under Order 6 Rule 17 of CPC to amend the plaint are before this Court.
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2. Parties are referred to as per their rank in the trial Court.
3. Plaintiff has instituted the suit in question i.e., O.S.No.5053/1990 for the relief of partition and separate possession of suit properties as described in Schedule-A and Schedule-B of the plaint and claiming share of 1/4th and 5/12th respectively. Prayer for declaring the Will dated 22.01.1988 said to have been executed by the father of plaintiff and defendant Nos.1 and 3 is also sought on the ground that it is a forged document. When the matter was at the stage of final arguments, an application under Order 6 Rule 17 of CPC came to be filed by the plaintiff seeking amendment of plaint and trial Court by order dated 01.02.2017-Annexure-A has allowed the application. Being aggrieved by the same, defendant Nos.5 to 9 are before this Court. 5
4. I have heard the arguments of Sri. Dhyan Chinnappa and Sri. S.S.Naganad, learned Senior advocates appearing for the parties.
5. Notice to respondent Nos.2 to 4 namely defendant Nos.1, 3 and 4 is dispensed with.
6. By consent of learned advocates appearing for the parties, the matter is taken up for final disposal though listed in preliminary hearing.
7. It is the contention of Sri. Dhyan Chinnappa, learned Senior counsel appearing for defendant Nos.5 to 9 that trial Court has erred in not considering the objections filed by defendant Nos.7 to 9 in proper perspective and amendment sought for would alter the very nature of the suit and the plaintiff is attempting to seek for the relief, which they have virtually waived at the initial stage of filing of the suit itself and the relief sought for under the proposed amendment is barred by limitation and there has been inordinate delay. He would contend 6 that when plaintiff himself has consented for the transaction, the same is now sought to be assailed by the proposed amendment. It is also contended that plaintiff had given up his claim in respect of shares transferred in favour of defendant No.4 in the original plaint by not seeking for such transfer being either illegal, void or not binding on them, though it was specifically pleaded by him with regard to said transaction in paragraph 14 of the plaint and as such, the plaintiff cannot be now permitted to re- introduce the such pleading by proposed amendment. He would also contend that plaintiff in a suit for partition does not have any vested right in the movables properties of the subject matter of suit and doctrine of lis pendens would inapplicable and as such proposed amendment sought for incorporating plea with regard to transfer of shares during pendency of suit was liable to be rejected. It is also contended that plaintiff has not explained as to the prejudice or injury that would be caused, if the 7 proposed amendment is not allowed and the very fact that plaintiff had not claimed any relief with regard to transfer of share by defendant No.1 in favour of defendant No.4 would itself clearly indicate that plaintiff had waived his right and same analogy would be applicable insofar as other transactions of shares also and as such, by relying upon the judgments in: (i) L.C.Hanumanthappa (since dead) v. H.B.Shivakumar, (2016) 1 SCC 332, (ii) A.Ilyas Ahmed v. Mohammed Ashfaque, 2016 SCC Online KAR 5994, (iii) K.V.Sathyamurthy and others v. K.G.Srinivasa and others, reported in 2016 (2) Kar LJ 325, (iv) Van Vibhag Karamchanri Griha Nirman Sahkari Sanstha Maryadit (Regd.) v. Ramesh Chander, judgment dated 19.10.2010 in SLP (Civil) No.1518 of 2008, (v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, (2009) 10 SCC 84 and (vi) Radhika Devi v. Bajrangi Singh and others, (1996) 7 SCC 486, he would pray for allowing the writ petition and for 8 setting aside the impugned order allowing the application for amendment of plaint.
8. Per contra, Sri.S.S.Naganand, learned Senior counsel appearing for the respondents has supported the order passed by the trial Court contending that transaction of transfer of shares was never brought to the notice of the trial Court at any point of time by any of the defendants and only when defendant Nos.8 and 9 appeared after filing an application for getting themselves impleaded and filed their written statement, it was brought to the notice of the Court with regard to transfer of shares having taken place and said written statement had been filed in the year 2013 and within the period of 3 years thereof, application for amendment of plaint came to be filed and there is no delay or laches and mere non seeking of prayer relating to earlier transaction between defendant No.1 and defendant No.4 being declared as null and void would not prevent the plaintiff to seek such prayer relating to subsequent 9 transaction which has taken place between parties and as such, allowing the amendment would not be cause any prejudice to the defendants, particularly when none of the defendants had at any point of time indicated about such transactions having taken place and as such, order of the trial Court allowing the application cannot be found fault with. In support of his submission, he has relied upon the judgments in the matter of: (i) Surender Kumar Sharma v. Makhan Singh reported in (2009) 10 SCC 626 and
(ii) Vasudev Ramchandra Shelat v. Pranlal Jayanand Thakar and others reported in (1974) 2 SCC 323.
9. Having heard the learned advocates appearing for the parties and on perusal of the records, it would disclose that the plaintiff has filed the suit in question for partition and separate possession in respect of Schedule-A and Schedule-B properties. The third prayer which has been sought for in the plaint reads as under:
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"declare that the Will dated 22-1-1988 (Twenty Second of January Nineteen Eighty Eight) alleged to have been executed by late Sri.Munshilal Manchanda is a forgery'
10. It is the specific case of the plaintiff that the said Will executed by the father of plaintiff and defendant Nos.1 and 3 is forged and as such, the defendants do not have any right to act upon said Will. In fact, plaintiff had also specifically pleaded with regard to transfer of 200 shares of defendant No.6-Company held by deceased Sri.Munshilal Manchanda having been transferred by defendant No.1 in favour of defendant No.4 at para.14 of the plaint. When the very Will under which the transfer of shares have been taken place is under question, specific prayer for declaring the transaction which took place pursuant to the said Will would not wipeout the right of the plaintiff.
11. It is needless to state that in the event of plaintiff being able to establish that Will dated 11 22.01.1988 executed by his father is a forged document which is also an issue at large before trial Court, consequences would flow. Merely because said transaction has taken place between defendant Nos.1 and 4 based on the said Will and no prayer has been sought for by the plaintiff would not prevent the plaintiff from seeking for subsequent prayer, which is also be based on the said Will.
12. In the instant case, as could be seen from the records, defendant Nos.8 and 9 were not arrayed as parties when the suit was filed. They got impleaded themselves by filing an application on 06.06.2013. Written statement came to be filed by them on 19.10.2013 whereunder, it has been specifically pleaded by them that transfer of 340 shares of defendant No.5- Company by defendant No.1 in favour of defendant No.9 on 12.03.2007 and 16.06.2007, transfer of 200 equity shares of defendant No.6-Company in favour of defendant No.8 on 21.02.2008 by defendant No.4 and 3026 equity 12 shares of defendant No.5-Company transferred in favour of defendant No.9 by defendant No.4 on 15.03.2007 and 16.06.2007 would not confer any right on defendant Nos.8 and 9 as same is illegal, void, non-est and not binding on the plaintiff.
13. As could be seen from the plaint averments, plaintiff is resting his case by attacking the Will executed by his father on 22.01.1988. Though, subsequent transactions have taken place neither defendant No.1 nor defendant No.4 are disputing the fact that such transfers is not based on the said Will. But on the other hand they are asserting it to be so. As such, in amplification of existing pleadings, additional prayer has been sought for by the plaintiff in view of new facts having been brought on record by defendant Nos. 8 and 9 in their written statement.
14. A bare reading of Order 6 Rule 17 of CPC would indicate that it enables the parties to lis to 13 amend the pleadings at any stage of the proceedings and Court would permit such amendment on such terms as may be just. Such amendments are permitted for determination of real controversy between the parties. Pre-trial amendments are allowed as a matter of course. However, by virtue of amendment brought to proviso to Rule 17, post-trial amendment can be allowed only in the event of conditions stipulated under the proviso to Rule 17 being satisfied. Delay by itself cannot be a ground on which amendment can be rejected. However, such post-trial amendment would be refused, in the event of the said amendment is bared by limitation or third party rights having crystallized or it would cause great prejudice to the opposite parties.
15. In the instant case, though plea of limitation has been raised to oppose the prayer for amendment of plaint, it emerges from the records that defendant Nos.5, 6 and 7 were already on record and inspite of their knowledge about 14 defendant Nos.1 and 4 having transferred the shares in favour of defendant Nos.8 and 9 in respect of those companies, yet they did not bring to the notice of the trial Court or in other words they did not raise any plea in that regard. It is only when defendant Nos.8 and 9 appeared and filed their written statement on 19.10.2013 these facts relating to transfer of shares came to light or in other words parties became aware of it and immediately prior thereto in their application for getting themselves impleaded, the details of such transfer was disclosed by the proposed defendant Nos.8 and 9. As such, the application for amendment came to be filed on 16.10.2015 which was well within the period of three years. Assuming for the limited purpose that issue of limitation which was required to be considered by the trial Court at the time of considering the application for amendment has not been considered, when examined by this Court it would disclose that said amendment was well within the period of limitation and as such, 15 trial Court has rightly allowed the application for amendment.
16. Though Sri.Dhyan Chinnappa, learned Senior counsel appearing for the petitioner has vehemently contended that "Doctrine of relation back" would not be applicable insofar as present amendment is concerned, Sri. S.S.Naganand, learned Senior counsel appearing for the respondents has fairly conceded that there cannot be no dispute with regard to said proposition of law in as much as the very transaction involved would disclose having taken place subsequent to filing of the suit i.e., in the year 2007 and as such, question of indicating in the impugned order that amendment would take place from the date of such amendment being allowed by specifically indicating the same would not arise. Since the very transaction which is sought to be assailed by the plaintiff under the proposed amendment is a transaction of the year 2007-2008 which undisputedly took place during the pendency 16 of the suit, it would be effective from the date of such transaction only.
17. As to whether the plaintiff would be entitled for the prayer sought for in the plaint, is an issue which has to be gone into by the trial Court. At this stage, no opinion can be expressed on the said plea.
For the aforestated reasons, this Court is of the view that there is no merit in this writ petition. Hence, writ petition stands rejected by confirming the impugned order dated 01.02.2017 passed by the trial Court.
Ordered accordingly.
SD/-
JUDGE VM