Karnataka High Court
Sri Narayanmurthy vs Sri Gopal on 5 October, 2018
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
W.P.NO.11292 OF 2015 (GM-CPC)
BETWEEN:
SRI. NARAYANMURTHY
S/O L. MARIYAPPA
AGED ABOUT 64 YEARS
R/AT NO.20, 1ST "A" MAIN ROAD
SUDHAMNAGAR
BANGALORE. ... PETITIONER
(BY SRI. JOSE SEBASTIAN, ADVOCATE)
AND:
1. SRI. GOPAL
S/O LATE KRISHNAPPA
AGED ABOUT 61 YEARS
R/AT NO.5, 1ST CORSS
VENKATARAMAIAH LAYOUT
R. M. NAGAR MAIN ROAD
DODDABANASWADI
BANGALORE-560 043.
2. SRI. MUNIRAJU
S/O LATE KRISHNAPPA
AGED ABOUT 45 YEARS
R/AT KUDLU VILLAGE
SINGASANDRA POST
BANGALORE-560 068.
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3. SRI. MANJUNATH
S/O LATE KRISHNAPPA
AGED ABOUT 39 YEARS
R/At KUDLU VILLAGE
SINGASANDRA POST
BANGALORE-560 068. ... RESPONDENTS
(BY SRI. K.V. SHYAMA PRASAD, ADVOCATE FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED ON IA NO.6 DTD.20.1.2015 IN O.S.NO.25136/2007 ON
THE FILE OF THE IV ADDL. CITY CIVIL AND SESSIONS JUDGE AT
MAYO HALL UNIT BANGALORE VIDE ANNEX-J.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court under Article 227 of Constitution of India, assailing the order dated 20.01.2015 on I.A.No.6 passed in O.S.Nos.25136/2007, on the file of IV Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore (CCH-21).
2. The petitioner is plaintiff and respondents are defendants in O.S.No.25136/2007 filed for a judgment and 3 decree of permanent injunction against the defendants in respect of suit schedule property bearing Site No.25, Panchayat Katha No.42, present Katha No.113, situated at Arulukunte Village, Begur Hobli, Bangalore South Taluk, measuring East to West 30 feet and North to South 40 feet. The defendants appeared and filed their written statement contending that there is no layout formed and consequently the suit schedule property is not in existence. Both the parties led their evidence. The defendants filed application under Order XXVI Rule 9 of CPC for appointment of Court Commissioner to report whether any layout is formed therein and whether there is any house construction and if so, whether suit schedule property can be identified in the said layout in respect of the site in question. Even though the application for appointment of Commissioner was filed initially, the same was considered after completion of evidence of the parties. In pursuance of the appointment of Court Commissioner, the Commissioner inspected the spot on 12.01.2013 and submitted his report on 04.02.2013. Thereafter, the plaintiff filed I.A.No.6 on 05.11.2013 under Order VI Rule 17 read with Section 151 of CPC, seeking amendment of plaint to incorporate 4 certain facts and also additional prayer for mandatory injunction and vacant possession of the site, contending that certain developments have taken place during the pendency of the suit and the defendants have made construction on the suit schedule property. The application was opposed by the defendants by filing objection, stating that the amendment sought for will change the nature of the suit and introduces a new cause of action. Further, it is stated that the application is not maintainable when the matter is at the stage of arguments.
3. The trial Court on consideration of the application filed under Order VI Rule 17 of CPC, by its order dated 20.01.2015, rejected I.A.No.6 for amendment holding that proposed amendment introduces totally a different and inconsistent case and thereby it changes the fundamental character of the suit. The said order rejecting I.A.No.6 for amendment is impugned in this writ petition.
4. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the writ papers. 5
5. Learned counsel for the petitioner submits that the suit initially filed is for permanent injunction against the defendants not to interfere with the peaceful possession of the plaintiff in respect of suit schedule site. It is further submitted that the petitioner-plaintiff purchased the suit schedule site under sale deed dated 30.03.1995. Further, the learned counsel for the petitioner submits that suit was filed on 10.01.2007 and along with the suit, application under Order 39 Rules 1 and 2 of CPC was also filed seeking temporary injunction against the defendants. The trial Court, by its order dated 26.07.2007, granted an order of temporary injunction in favour of the petitioner-plaintiff and against respondents-defendants. The respondents-defendants aggrieved by the said order of temporary injunction filed M.F.A.No.9687/2007 before this Court. This Court, by order dated 02.08.2007, disposed of the appeal filed by the respondents-defendants directing both the parties not to meddle with the property during the pendency of the suit and no construction shall be put upon the vacant site which exists at present till the suit is disposed of. The parties led their evidence and after completion of evidence, the trial 6 Court took up application filed by defendants under Order XXVI Rule 9 of CPC and appointed Court Commissioner as sought in the application. The Commissioner, on 12.01.2013, inspected the spot and submitted his report on 04.02.2013. Learned counsel for the petitioner submits that immediately on filing of Commissioner's report before the Court, the plaintiff filed I.A.No.6 for amendment based on the report of the Commissioner, seeking to add averments with regard to the developments which have taken place during the pendency of the suit and also seeking vacant possession of the site in question. The said amendment would be necessary to decide the issue involved in the suit. Moreover, the learned counsel submits that in the affidavit in support of application for amendment, the plaintiff has made it clear that defendants have put up construction during the pendency of the suit. They have no other option except seeking relief of mandatory injunction.
6. Per contra, learned counsel for the respondents vehemently opposes the application for amendment. It is further submission of learned counsel for the respondents that 7 the relief sought for by the plaintiff in the amendment application is barred by limitation and the cause of action stated is on 05.01.2009 and the application filed on 05.11.2013 is clearly barred by limitation. Further, pointing out to the deposition of the plaintiff where the plaintiff in his cross- examination to a specific question, that the defendants are in possession of entire 1 acre 16 guntas in Sy.No.42, has answered 'yes'. Therefore, he submits that the plaintiff is aware of the fact of the defendants' possession over the suit schedule property and they had kept quite till submission of the report of the Commissioner. Further, he submitted that there is no bonafide in the application and the plaintiff has not indicated any reason with regard to due diligence as required under Order VI Rule 17 read with Section 151 of CPC as it is a post trial amendment sought for by the plaintiff.
7. The defendant filed application for appointment of Commissioner for inspection of the suit schedule property before commencement of trial, but the order on the said application is passed after completion of trial. Application for 8 amendment under Order VI Rule 17 of CPC is filed subsequent to the report filed by the Court Commissioner. Order VI Rule 17 read with Section 151 of CPC provides for amendment of pleadings at any stage of the proceedings but where application is filed after commencement of trial, the Court shall come to the conclusion that inspite of due diligence the party who sought for amendment could not have raised the matter before commencement of trial. The purpose of allowing the application for amendment is to minimize litigation; to avoid multiplicity of proceedings; to decide all the issues once for all and to put an end to further litigation. In the case on hand, the suit initially filed is for permanent injunction in respect of suit schedule property alleging that cause of action arose on 03.01.2007. The defendants filed their written statement and parties led their evidence. Application is filed under Order XXVI Rule 9 of CPC for appointment of Commissioner before commencement of trial to report to the Court as to whether any layout is formed therein; any house construction is there and if so, whether suit schedule property can be identified in the said layout. The said application was kept pending and was taken up for consideration 9 only after trial and before commencement of argument. The trial Court allowed the said application and appointed Court Commissioner to inspect the spot as sought for by the defendants. From the records it is seen that the Commissioner inspected the spot on 12.01.2013 and submitted report on 04.02.2013 before the Court. Immediately thereafter, the plaintiff has filed I.A.No.6 for amendment based on the report of the Commissioner. The Commissioner's report indicated certain construction on the suit schedule property which made the plaintiff to seek amendment of the plaint, to incorporate the subsequent developments which had taken place during the pendency of the suit. The amendment sought by the plaintiff is as follows:
"Add the following after paragraphs '6' 6(a) Plaintiff states further that at the time of the filing of the suit the sites sold in the layout was vacant, and this Hon'ble Court was pleased to issue an ad-interim order of status quo which came to be confirmed by the Hon'ble High Court of Karnataka. Defendants taking advantage of the pendency of the proceedings ventured to dump waste material in the layout and in this regard a complaint was lodged before HSR Layout Police Station on 05/01/2009 followed by presenting the complaint before the Commissioner of Police on 12/01/2009 and also 10 presented a representation before CMC Bommanahalli who intervened and removed the blockage and also got tarred 20 ft width Road now 10th Cross Muneshwara Layout. It was on 09/03/2011 plaintiff reliably came to know that defendants started construction activities in Sites No.20, 21 & 22 apart from putting up compound wall in Sites No.17 to 21 and Site No.23 to 28 and also put up Temporary Zinc Sheet sheds in Site bearing No.05 to 16 apart from dumping scarp material on the sites by blocking the entrance of the 25ft Road apart from using the accommodation as cowshed. Since the defendants violated the court order the plaintiff was inclined to initiate contempt proceedings before the Hon'ble High Court in which an observation was made to the plaintiff to approach the trial court in the pending proceedings. However since the matter reached its flag end the plaintiff did not initiate contempt proceedings awaiting for a speedy disposal. However at the stage of defendants' argument, at the request of the defendants a court commissioner was appointed who executed the warrant on structures as well as the walls and compound walls and the scarp material dumped on the land in question. Plaintiff also noticed Zinc Sheets and scarp materials dumped therein on the schedule property apart from blocking the roads provided for under the layout plan violating the status quo order as such the plaintiff has no other option than to seek a relief of mandatory injunction for demolition of the compound wall and existing structures put up therein during the pendency of the proceedings.
Add the following in Para 7 second line of the plaint after '03/01/2007' and before 'and':
'09/03/2011 and on 12/01/2013 and
subsequently'
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Add the following after prayer column '(b)' and before the prayer column '(c)' For a mandatory injunction directing the defendants to handover the vacant possession of the property by dismantling and removing the compound wall put up therein by the defendants in the plaint schedule property and in the event of defendants' failure; the vacant possession be handed over to the plaintiff through the process of the court at the cost of the defendants."
8. The amendment sought is to include averments with regard to the construction of structure as well as walls and compound over the schedule site. Further, the amendment sought is regarding inclusion of prayer for mandatory injunction to dismantle compound wall and for vacant possession of the suit schedule site. This Court, by an order on 02.08.2007 in M.F.A.No.9687/2007 directed that no construction shall be put up on the vacant site which exists at present till the suit is disposed of. As the Commissioner in his report submitted on 04.02.2013 noted certain construction on the site which perhaps made the plaintiff to file amendment application. Therefore, in my opinion, the plaintiff could not have sought the present amendment at any stage before commencement of trial or 12 subsequent to commencement of trial. But only when the Commissioner submitted his report, the plaintiff has come up with the present application for amendment. With regard to due diligence as contended by the learned counsel for the respondents, it is to be noticed that, as observed above, the Commissioner submitted his report noticing certain structures and compound walls, which made plaintiff to file present application for amendment. Further it is to be noticed that this Court vide order dated 02.08.2007 in M.F.A.No.9687/2007 had observed that it is a vacant site. Therefore, in the present case, the plaintiff is right in seeking amendment, since the appointment of Commissioner is after closure of trial and before commencement of arguments. The contention of the respondents is that it is barred by limitation. It is to be noted that in the application for amendment, the plaintiff in his affidavit has stated that structure and construction was noticed on 09.03.2011 and the present application for amendment is filed on 05.11.2013. However, without expressing any opinion on the question of limitation, it is left open to the trial court to 13 frame an issue with regard to limitation and to decide the same, which would protect the interest of defendants.
9. Learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court in the case RAGU THILAK D.JOHN v/s S.RAYAPPAN AND OTHERS reported in (2001) 2 SCC 472, to contend that the question of limitation could be made an issue on allowing the amendment. Paragraphs 3 to 6 read as under:
"3. The appellant filed a suit against the respondents praying for a decree of permanent injunction restraining them, their agents and subordinates from demolishing the compound wall in the suit scheduled property. During the pendency of the suit, the respondent-defendants were alleged to have entered the appellant's house unauthorisedly and demolished the compound wall on the north, east and west side. They were also alleged to have damaged the gate in the entrance.
4. In view of the subsequent developments, the appellant filed an application under Order 6 Rule 17 for the amendment of the plaint for adding paras 8(a) to 8(f) in his plaint. The trial court rejected his prayer and the revision petition filed against that order was dismissed by the High Court vide order impugned in this appeal, mainly on the ground that the amendment, if allowed, would result in introducing a new case and cause of action. It was further held that as the appellant was seeking recovery of damages, the amendment could not be allowed as it would 14 allegedly change the nature of the suit. It was also observed that the amendment sought was barred by limitation.
5. After referring to the judgments in Charan Das v. Amir Khan1, L.J.Leach & Co. Ltd. v. Jardine Skinner & Co.2, Ganga Bai v. Vijay Kumar3, Ganesh Trading Co. v. Moji Ram4 and various other authorities, this Court in B.K.Narayana Pillai v. Parameswaran Pillai5 held:
(SCC p. 715, para 3) "3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties.
Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation."
6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.
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10. Further, learned counsel relies upon the decision of the Hon'ble Supreme Court in the case of SAMPATH KUMAR v/s AYYAKANNU AND ANOTHER reported in (2002) 7 SCC 559 to contend that the question of limitation could be an issue for trial and that should not come in the way of the issues raised. Paragraph Nos.9, 10, 11 of the aforesaid decision read as under:
"9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.16
10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation- back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed.(See observations in Siddalingamma v. Mamtha Shenoy2.)
11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as 17 the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
11. In the above decisions, the Hon'ble Supreme Court made it clear that while allowing the amendment application, the interest of defendants could be protected by treating the relief sought in the amendment application, be deemed to have been made on the date on which application for amendment is made.
Further, the Hon'ble Supreme Court observed in that case that, even though the amendment being sought almost 11 years after the date of institution of suit and further observed that the plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint for relief of injunction, but in order to avoid multiplicity of suits permitted the relief of declaration of title and recovery of possession. In the case on hand also without there being any change in the basic structure of the suit, the plaintiff has sought additional prayer for mandatory injunction directing the defendants to hand over the 18 vacant possession of the property by dismantling and removing the compound wall put up therein, which is based on the events which have taken place during the pendency of the suit.
12. In the case of PANKAJA AND ANOTHER v/s YELLAPPA (DEAD) BY LRs. AND OTHERS reported in (2004)6 SCC 415, the Hon'ble Supreme Court at paragraph Nos.13, 14, 16, 17 and 18 has held as follows:
"13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments.
14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where as relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.19
16. This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board (2004) 3 SCC 392. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the court in allowing or disallowing such amendment in the interest of justice.
17. Factually in this case, in regard to the stand of the defendants that the declaration sought by the appellants is barred by limitation, there is dispute and it is not an admitted fact. While the learned counsel for the defendant-respondents pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the appellants in this case ought to have been done within 3 years when the right to sue first accrued, the appellant-plaintiff contends that the same does not fall under the said entry but falls under Entry 64 or 65 of the said Schedule of the Limitation Act which provides for a limitation of 12 years, therefore, according to them the prayer for declaration of title is not barred by limitation, therefore, both the courts below have seriously erred in not considering this question before rejecting the prayer for amendment. In such a situation where there is a dispute as to the bar of limitation this Court in the case of Ragu Thilak D. John v. S. Rayappan1 has held: (SCC p. 472) "The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for."20
18. We think that the course adopted by this Court in Ragu Thilak D.John case1 applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendment sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief."
The Hon'ble Supreme Court in the above decisions has held that jurisdiction to allow or not to allow an amendment being discretionary, to be exercised on judicious evaluation of facts and circumstances and if the amendment really subserves the cause of justice and avoids further litigation, the same shall be allowed.
13. In the case of NORTH EASTERN RAILWAY ADMINISTRATION, GORAKHPUR v/s BHAGWAN DAS 21 (DEAD) BY LRs. reported in (2008) 8 SCC 511 the Hon'ble Supreme Court has held at paragraph No.16 as follows:
"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil3 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar4.)"
14. The Hon'ble Supreme Court has held that amendments ought to be allowed if it is not working injustice to other side and if it is necessary for determining the real question of dispute between the parties.
15. Learned counsel for the respondents has relied upon the decision in the case of L.C.HANUMANTHAPPA(SINCE DEAD) REPRESENTED BY HIS LEGAL REPRESENTATIVES v/s H.B.SHIVAKUMAR reported in (2016) 1 SCC 332 to 22 contend that legal right accrued in favour of the defendants should not be taken away. Keeping in mind the principles laid down by the Hon'ble Supreme Court in the above referred decisions, the right accrued to the defendants in the instant case would not affect, if the amendment is allowed.
16. As the amendment sought by the plaintiff is with regard to developments which have taken place during the pendency of the suit; which is noted by the Commissioner appointed by the trial Court who submitted his report on 04-02-2013 when the matter stood at the stage of arguments, the amendment sought for by the plaintiff would be necessary to decide the real dispute involved in the suit. Further, keeping in mind the principle that normally the amendment applications are allowed to avoid multiplicity of proceedings and to minimize the litigation, I am of the considered view that in the present facts and circumstances of the case, the amendment deserves to be allowed.
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17. The trial Court is not justified in rejecting the application for amendment observing that it changes the character of the suit and filed only after the Commissioner report. If the amendment application is allowed and if it is observed that the amendment shall be deemed to have come into effect from the date of filing of the application, no prejudice would be caused to the defendants, on the other hand, it would protect the interest of the defendants.
18. For the reasons stated above, the order dated 21-01-2015 passed on I.A.No.6 in O.S.No.25136/2007 is set aside. Accordingly, the writ petition is allowed with costs of Rs.5,000/- payable by the petitioner to the defendants.
The amendment shall be deemed to have come into effect from the date of filing of the application i.e., from 05-11-2013.
Sd/-
JUDGE SMJ:CT:SK