Karnataka High Court
M/S Affinity Real vs Sri K Ramaiha on 9 March, 2018
Author: B M Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD.
WRIT PETITION NO.21769/2016(GM-CPC)
BETWEEN:
M/S. AFFINITY REAL
ESTATE PRIVATE LIMITED,
A COMPANY INCORPORATED
UNDER THE PROVISIONS OF
COMPANIES ACT, 1956, HAVING
ITS REGISTERED OFFICE AT NO.12,
2ND FLOOR, 1ST MAIN ROAD,
JAYAMAHAL EXTENSION,
BANGALORE-560046
REPRESENTED BY DIRECTOR
AND AUTHORISED SIGNATORY
SRI KEVAL KUMAR SHAH
... PETITIONER
(BY SRI. SUBRAMANYA S, ADV. FOR
UPASANA ASSOCIATES)
AND:
1. SRI K RAMAIHA
S/O SRI KEMPANNA,
AGED ABOUT 61 YEARS,
RESIDING AT DODDASANNE
VILLAGE, KASABA HOBLI,
DEVANAHALLI TALUK-562110,
BANGALORE RURAL DISTRICT.
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2. SRI RANGANNA @ D K RANGASWAMY
S/O SRI KEMPANNA,
AGED ABOUT 53 YEARS,
RESIDING AT DODDASANNE
VILLAGE, KASABA HOBLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
3. SRI NAGARAJ
S/O LATE SRI THATHAPPA
AGED ABOUT 43 YEARS,
4. SRI SIDDARAJU @ SIDDAPPA
S/O LATE SRI THATHAPPA,
AGED ABOUT 53 YEARS,
5. SRI BYREGOWDA
S/O LATE SRI THATHAPPA
AGED ABOUT 48 YEARS,
6. SRI MUNIRAJU
S/O LATE SRI THATHAPPA ,
AGED ABOUT 36 YEARS,
7. SMT. PADMA
W/O LATE SRI THATHAPPA ,
AGED ABOUT 28 YEARS,
8. SMT. MUNIVEERAMMA
W/O LATE SRI THATHAPPA,
AGED ABOUT 78 YEARS,
9. SMT. LAKSHMAMMA @ MUNILAKSHMAMMA
W/O LATE SRI MUNIRAJU,
AGED ABOUT 38 YEARS,
10. SMT. GEETHA
W/O SRI NAGARAJ,
AGED ABOUT 38 YEARS,
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11. SMT. GOWRAMMA
W/O SRI SIDDAPPA @ SIDDARAJU,
AGED ABOUT 48 YEARS,
12. SMT. NARAYANAMMA
W/O SRI BYREGOWDA,
AGED ABOUT 40 YEARS,
ALL ARE R/O ILTHORE VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK-562110,
BANGALORE RURAL DISTRICT.
13. SRI M SHIVAKUMAR
S/O LATE SRI M S MAHADEVIAH,
AGED ABOUT 47 YEARS,
RESIDING AT NO.109, 4TH MAIN ROAD,
HVR LAYOUT, MAGADI MAIN ROAD,
BANGALORE-560079
... RESPONDENTS
(BY SRI B PAPEGOWDA, ADV. FOR R1 & R2 (ABSENT)
SRI K SHRIHARI, ADV. FOR R13
R3 TO R12 NOTICE DISPENSED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ALLOW THE PETITION AND QUASH THE ORDER DATED
14.03.2016 OF THE SR. CIVIL JUDGE AND J.M.F.C., AT
DEVANAHALLI IN O.S.42/2013 AT ANNEX-A ON I.A.5 IN
DISMISSING THE APPLICATION FILED BY THE PETITIONER
/ PLAINTIFF UNDER ORDER VI RULE 17 R/W SEC. 151 OF
CPC 1908 FOR AMENDMENT.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
The plaintiff in O.S.No.42/2013 on the file of Senior Civil Judge and JMFC, Devanahalli is the petitioner in this case and the order impugned in this writ petition is dated 14.03.2016 by which the learned trial Court Judge has rejected the application filed by the plaintiff for amendment of the plaint to include the relief of declaration that the sale deeds dated 25.06.2009 and 15.02.2010 executed in favour of defendant No.13 are not binding on the plaintiff.
2. Heard the learned counsel for the petitioner and respondent No.13. Notice to respondents No.3 to 12 is already dispensed with. Learned counsel who represents respondents No.1 and 2 is not present. With the consent of the learned counsel the matter is taken up for final disposal.
3. The petitioner/plaintiff has sought for declaration of title to the parcels of land described in the 5 plaint Schedule and also for cancellation of the sale deeds executed by defendants No.3 to 12 in favour of defendants No.1 and 2 and other consequential reliefs.
4. The plaint is filed on 21.12.2012. The cause of action for the plaint as asserted is 15.12.2012 and on the subsequent dates when the original defendants No.1 to 12 allegedly tried to interfere with the plaintiffs asserted peaceful possession and enjoyment of these two parcels of land. It is not disputed that later an application was filed to implead defendant No.13, the contesting respondent in the present petition, on the assertion that defendant No.13 had purchased these parcels of land on 25.06.2009 and 15.02.2010 from defendants No.1 and 2 specifically stating that the plaintiff learnt about these sale deeds only on 25.02.2013. The application for impleadment is allowed and defendant No.13 has filed written statement on 08.03.2014.
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5. It is thereafter the present application for amendment is filed seeking permission to amend the plaint to include the additional relief of declaration that the sale deeds executed in favour of defendant No.13 on 25.06.2009 and 15.02.2010 are also not binding on the plaintiff and for incorporation of certain pleadings in that regard. This application for amendment being contested by defendant No.13 is rejected by the learned trial Court Judge by the impugned order. The learned Trial Court Judge has proceeded to pass the order in the premise that the issues are not yet framed, but the relief that is now sought to be included is barred by limitation, and therefore such an amendment cannot be allowed.
6. Learned counsel for the petitioner relying upon the decision of the Hon'ble Supreme Court reported in the case of Pankaja and another vs. Yellappa (dead) By LRs and others [(2004)6 SCC 415] submitted that 7 even if it could be presumed for the sake of arguments that the relief is barred by limitation, that cannot by itself be a reason to deny amendment and that the facts and circumstances of the case justify exercise of discretion for a favourable consideration of the application and that these amendments should be allowed for effective and complete adjudication of the lis between the parties.
7. Learned counsel for respondent No.13 on the other hand relied on the decision of the Hon'ble Supreme Court in the case of Radhika Devi vs. Bajarangi Singh [Laws(SC)-1996-1-143] and contended that amendments to include reliefs barred by limitation should not be ordinarily allowed and could be allowed only where the amendment merely clarifies existing pleadings without altering the nature of the suit or cause of action and the learned counsel emphasised that the Hon'ble supreme Court in that case disallowed 8 the proposed amendment because accrued rights will be denied.
8. Learned counsel also pointed out that the evidence has already commenced in the present suit and the plaintiff/petitioner has not explained the circumstance to justify allowing amendment after the commencement of trial.
9. The plaintiff is seeking declaration of title to the parcels of land mentioned in the schedule to the plaint and for declaration that the sale deeds executed by defendants No.3 and 12 in favour of defendants No. 1 and 2 not binding. Defendant No.13 has purchased the subject parcels of land from defendants No.1 and 2. Although such sale deed was before the date of commencement of the suit, there could be an effective adjudication on the question of title that is disputed and declaration of title only if the details of all the transfers all brought on record, including the transfer 9 in favour of the defendant No.13. The exclusion of the adjudication on the sale deeds in favour of the defendant No.13 while allowing the adjudication on the earlier sale deeds to continue would be driving a cleavage leaving the validity of one set of transfers open for further possible disputes. The overwhelming intent in law being that there should be complete and effective adjudication on all questions in dispute between the parties, it would be just and proper to allow the proposed amendment in the facts and circumstances, especially when the question of defeat of accrued rights because of limitation could be definitely adjudicated as part of the final adjudication of the lis between the parties. This Court therefore, also being cognizant of the declaration of law by the Hon'ble Supreme Court that it would be justified in certain circumstances to allow the amendments even though it could be contended that such amendment is barred by limitation, considers it appropriate to set aside the order 10 dated 14.03.2016 rejecting I.A. No.5 for amendment and permit the plaintiff to amend the plaint as sought for in the application in I.A.No.5 in OS No. 42/2013 on the file of the Senior Civil Judge and J.M.F.C., Devanahalli.
10. It is needless to state that consequent to allowing the amendment, as per I.A. No.5 as stated above the respondent No.13 will be entitled to file additional written statement raising the questions of limitation.
The petition is allowed accordingly. No costs.
Sd/-
JUDGE Akc