Karnataka High Court
Sri. Omar Farook vs Sri. M. Varadaraju on 6 March, 2017
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO. 40713/2016 (GM-CPC)
BETWEEN :
SRI. OMAR FAROOK
AGED ABOUT 52 YEARS
S/O A. SHAKOOR
NO.315, 8TH CROSS
LAKSHMI ROAD
SHANTHINAGAR
BENGALURU - 560 027
... PETITIONER
(BY SRI ABHINAV.R., FOR
M/S. KUMAR & KUMAR, ADVS., E)
AND :
1. SRI. M. VARADARAJU
AGED ABOUT 51 YEARS
S/O LATE. MUNIGURAPPA
RESIDING AT AMRUTHAHALLY VILLAGE
YELAHANKA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 560 064
2. KARNATAKA VIDHANA MANDALA
KARYALAYA NOWKARARA GRUHA
NIRMANA SAHAKARA SANGH. (REGD)
NO.216/A, 2ND FLOOR
VIDHANASOUDHA
BENGLAURU - 560 001
REPRESENTED BY ITS SECRETARY
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3. SRI. H.GOPALA REDDY ALIAS GOPI
AGED ABOUT 48 YEARS
S/O HANUMANTHAPPA
RESIDING AT GASTHI KEMPANAHALLY
YELAHANKA HOBLI, YELAHANKA
BENGALURU - 560 064
4. M/S. JAYASURYA DEVELOPERS
REPRESENTED BY
SRI. H.GOPALA REDDY ALIAS GOPI
AGED ABOUT 48 YEARS
S/O HANUMANTHAPPA
RESIDING AT GASTHI KEMPANAHALLY
YELAHANKA HOBLI, YELAHANKA
BENGALURU - 560 064
5. SRI. GALGILLI
AGED ABOUT 58 YEARS
FATHER'S NAME NOT
KNOWN TO THE PLAINTIFF
C/O NO.216/A, 2ND FLOOR
VIDHANASOUDHA
BENGALURU - 560 001
... RESPONDENTS
(BY SRI. NANJUNDA REDDY, SR. COUNSEL FOR
SRI. UNNIKRISHNAN.M., ADV., FOR R3 & 4
SRI. I. GOPALAKRISHNA, ADV., FOR R2
R1 & R5 ARE SERVED.)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER DATED 02.06.2016
PASSED BY THE II ADDITIONAL SENIOR CIVIL
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU
REJECTING THE I.A.NO.4 IN O.S.NO.514/2009 AT
ANNEXURE-G TO THE WRIT PETITION AND
COSNSEQUENTLY ALLOW I.A.NO.4 DATED 18.11.2010
AT ANNEXURE-C TO THE WRIT PETITION.
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THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiff filed the present writ petition against the impugned order dated 02.06.2016 passed by the trial court dismissing IA No.4 filed by the plaintiff under Order VI Rule 17 of Code of Civil Procedure, 1908 ('CPC' for short).
2. The present petitioner - plaintiff filed O.S.No.514/2009 for declaration, to declare that the plaintiff cannot be dispossessed from the suit schedule property forever and consequently declare that the sale deed dated 27.08.2008 executed in favour of the third defendant by the first and second defendants is null and void and not binding on the plaintiff and grant permanent injunction restraining defendants in respect of the suit schedule property morefully described in the schedule, contending that the first defendant who was the owner of the schedule property executed a an agreement of sale dated 20.07.1995 after receiving the full and final sale price of Rs.29,00, 263/- and further 4 contended that the on 26.03.2009 when the plaintiff visited the schedule property for a routine inspection to his shock and surprise the defendants were carrying out some levelling work upon the schedule property as is evident from the photographs. Upon enquiry, the third defendant claimed that he is the owner of the schedule property and in furtherance of the same the plaintiff obtained RTC, Mutation entries wherein the third defendant is said to have purchased the very property from one M. Kariyappa S/o Muniswamappa under a registered sale deed dated 27.02.2008, etc.,
3. The defendants filed the written statement. Denied the plaint averments and contended that the first defendant never executed any agreement as alleged in favour of the plaintiff on 20.07.1995. If the possession has to be delivered under unregistered sale agreement, the plaintiff has to pay the entire stamp duty on the agreement and the same not been done and the document was not properly stamped.
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4. It is further contended that the General Power of Attorney dated 20.07.1995 executed by the first defendant in favour of the plaintiff has been terminated and cancelled by the first defendant by way of Registration Cancellation Deed dated 08.09.2005 and further contended that the first defendant has executed the registered sale deed in favour of the third defendant on 18.08.2008 for valuable consideration and the defendants are in peaceful and constructive possession of the suit schedule property and accordingly formed layout and obtained conversion and some of the sites are already sold and therefore, sought for dismissal of the suit.
5. When the matter was posted for framing of issues, at that stage, the counsel for the petitioner filed IA No.4 under Order VI Rule 17 of CPC for amendment of the plaint to insert certain facts with regard to the agreement and payment of consideration - paras 5(a) to 5(f) and also prayer with regard to grant a decree specific performance to direct the defendants to execute 6 an absolute deed in respect of the suit schedule property and to declare that the sale deed dated 02.06.2005 executed in favour of M. M.Kariyappa as null and void and not binding on the plaintiff. Reiterating the averments made in the plaint, the defendant Nos. 3 and 4 field objections to the said application and contended that the application field for amendment is not maintainable and it is nothing but a new cause of action introduced and altogether a new case and the application cannot be allowed at this belated stage. Therefore, sought for dismissal of the application. The trial court considering the entire materials on record by the impugned order dated 02.06.2016 dismissed the application filed by the plaintiff for amendment of the plaint on the ground that the amendment sought by the plaintiff is changing the nature of the suit. Hence present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
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7. Sri. Abhinav.R., learned counsel for the petitioner contended that the amendment sought for is only to insert additional facts which are already on record and prayer sought is only to declare specific performance in pursuance of the agreement dated 20.07.1995 and to declare the sale deed dated 02.06.1995 as null and void and not binding on the plaintiff is on the same set of pleadings and nowhere it will change the nature of the suit and not prejudice to the case of the defendants. Therefore he sought to allow the present writ petition by setting aside the impugned order passed by the trial court.
8. Per contra, Sri. Nanjunda Reddy, learned Senior counsel representing respondent Nos. 3 and 4 sought to justify the impugned order and strenuously contended that at the inception, the suit was filed for the declaration to declare that the plaintiff cannot be dispossessed from the schedule property for ever and to declare that the sale deed dated 27.08.2008 executed by defendant Nos. 1 and 2 in favour of the third 8 defendant is not binding on the plaintiff. Now, byway of an amendment to insert additional facts and prayer for decree for enforcement of the agreement dated 20.07.1995 is not maintainable and the amendment sought is clearly barred by limitation in view of the provisions of Article 54 of the Limitation Act and he further contended that though application for amendment filed in 2010 and the application was proceeded by the plaintiff only in 2016 i.e., after a lapse of more than six years that too when the case is posted for evidence. The application field by the plaintiff is not maintainable. He fairly submits that if this court permits the plaintiff to amend the prayer without including the additional facts already stated in the plaint, the defendants may be permitted to file additional written statement with regard to prayer sought by the plaintiff for enforcement of agreement dated 20.07.1995 with regard to limitation. Therefore, sought for dismissal of the writ petition. 9
9. Having heard the learned counsel for the parties to the lis, the only point that arises for consideration in the present writ petition is:-
"Whether the impugned order passed by the trial court rejecting the application for amendment of the application is justified in the facts and circumstance of the present case?"
10. It is an undisputed fact that originally, the plaintiff filed a suit for declaration that to declare the plaintiff cannot be dispossessed from the suit schedule property for ever and consequently to declare that sale deed dated 27.08.2008 is null and void and not binding on the plaintiff. By way of an amendment he wanted the prayer to grant for enforcement of the agreement dated 20.07.1995 after lapse of more than 14 years, on the same set of facts already stated in the plaint. In the plaint, it is stated in paragraph No.2 that first defendant has executed agreement in favour of the plaintiff on 20.07.1995 for sale consideration of Rs.29,00,263/-. On the basis of the pleadings he prays for amendment by 10 way of inserting the additional facts pleaded in the amendment application. If this amendment is allowed, it is always open for the defendant Nos. 1 to 4 to file additional written statement raising objections with regard to the limitation and enforcement of the agreement dated 20.07.1995, after a lapse of 14 years and it will always be subject to proof of the agreement and subject to the law of limitation.
11. The Hon'ble Supreme Court in the case of "SURENDAR KUMAR SHARMA VS. MAKHAN SINGH"
reported in (2009) 10 SCC 626 at paragraph Nos.5 to 8 has held as under:-
5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered 11 discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs.
Therefore, in our view, mere delay and laches in making the application, for amendment cannot be a ground to refuse the amendment.
6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise. (See B.K.Narayana Pillai v. Parameswaran Pilla.) Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
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7. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction.
Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed.
8. For the reasons aforesaid, the orders of the High Court as well as of the trial court are set aside. The application for amendment of the plaint filed by the appellant stands allowed, subject to the payment of costs of Rs.10,000/- to the opposite party, which 13 shall be deposited/paid within a period of six weeks from the date of supply of a copy of this order. In default of the deposit/payment of such costs, the application for amendment of the plaint shall stand rejected."
12. Though a contention raised by the learned Senior counsel with regard to maintainability of the application for amendment to incorporate prayer for decree of specific performance, mere allowing the application for amendment to incorporate prayer for specific performance will not, in no way prejudice to the case of the defendants. It is always open for the defendants to file additional written statement if any to the proposed amendment application filed by the plaintiff.
13. Taking into consideration the pleadings in the plaint and the written statement already filed by the defendants, on the same set of facts pleaded in the plaint, if the amendment application has been filed only to amend the prayer to enforcement of agreement dated 20.07.1995 and prayer for declaration declare the 14 plaintiff cannot be dispossessed from the suit schedule property for ever no prejudice will be caused to the defendants. It is always open for the defendant Nos. 1 to 4 to file additional written statement with regard to the prayer sought in the amendment. In view of the above, the point raised in the present writ petition has to be answered in the negative holding that the trial court is not justified in rejecting the application for amendment of the prayer with regard to specific performance to enforce the agreement dated 20.07.1995 and to declare that the sale deed dated 02.06.2005 executed in favour of M. Kariyappa by the defendant No.1.
14. For the reasons stated above, the writ petition is allowed-in-part.
The impugned order passed by the trial court rejecting the application for additional prayer seeking amendment, only in so far as specific performance to enforce the agreement dated 20.07.1995 and to declare that the sale deed dated 02.06.2005 as null and void is hereby set aside.
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The IA filed under Order VI Rule 17 only in so far as the prayer for specific performance to enforce the agreement dated 20.07.1995 and to declare the sale deed dated 02.06.2005 executed in favour of M.Kariyappa by the defendants is allowed.
The defendant Nos. 1 to 4 are at liberty to file additional written statement if any.
If such additional written statement is filed, the trial court shall frame an additional issue, if any and proceed with the case and pass orders after giving opportunities to the both the parties in accordance with law.
Since the matter is of the year 2009, the trial court is directed to expedite the suit subject to cooperation of both the parties.
All the contentions of both the parties are left open.
SD/-
JUDGE Bsv