Karnataka High Court
M/S Anf Holdings vs Sri H Jayaramaiah on 25 September, 2012
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 25th DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NO.24465 OF 2012 (GM-CPC)
Between :
M/s. ANF holdings
At registered partnership firm,
Having its Office at No.106,
Industrial Suburb,
Yeshwanthapur, 2nd Stage, Tumkur
Road Next to Indusfila
Bangalore - 560 022
Represented by its Partner
Mr.Farooq Ahmed. ... Petitioner
(By M/s. B.K.Sampath Kumar
& Associates, Advs. )
And :
1. Sri H.Jayaramaiah
S/o late Muniswamappa
Aged about 75 years,
R/o Naduvathi Village & Post,
Kadugodi, Hosakote Taluk,
Bangalore District.
2. Smt.Shanthamma
W/o late H.C.Gopalaiah
2
Aged about 50 years.
3. Sri Chandrashekar
S/o late H.C.Gopalaiah
Aged about 32 years.
No.2 & 3 are deleted
as per Court order 19.7.2012
4. Sri Lakshminarayana
S/o late H.C.Gopalaiah,
Aged about 30 years.
Deleted as per Court
order dated 21.9.2012
5. Sri Muralidhara
S/o late H.C.Gopalaiah
Aged about 29 years.
6. Smt.Hema
D/o late H.C.Gopalaiah
Aged about 37 years.
All are residing at
No.118, 2nd Cross,
5th Stage, B.E.M.L. Layout,
Behind police station,
Raja Rajeswari nagar,
Bangalore.
7. Sri Gopala @ Marga
S/o late Muniyappa
Aged about 50 years,
R/o Hoodi Village,
Madevapura Post,
3
Bangalore East Taluk.
No.6 & 7 are deleted
as per Court Order 19.7.2012
8. Sri.Hoodi Venugopal
S/o late Muniyappa
Aged about 45 years,
R/o Kareemana
Agrahara Village and post,
Bangalore.
9. Sri.D.Gopinath
S/o late U.L.Dhanaram Murdaliar
Aged about 67 years,
Residing at No.35,
Lang Ford Road,
Richmond Circle,
Bangalore - 560 025.
10. Sri.Chinnappa Raju
S/o Dhanapathi Raju
Aged about 85 years,
R/o K.P.S.Yard, Hoodi,
Mahadevapura Post,
Bangalore - 560 048.
11. Smt.Veena
W/o R.Chandrashekar
Aged about 32 years,
Residing at No.826
2nd 'B' Cross, 8th Main,
H.R.B.R. 1st Block,
Bangalore - 560 043.
4
12. R.Chandrashekar
S/o late Ramaiah Reddy,
Aged about 40 years,
Residing at No.826,
2nd 'B' Cross, 8th Main,
H.R.B.R. 1st Block,
Bangalore - 560 043. ... Respondents
(By Sri Madhusudan Rao, Adv.
R2, R3, R4, R6, R7-Deleted
R5 & R8- Served
M/s.Rego & Arjun Rego, Advs. For R9
Sri M.V.Vedachala, Adv. For R10,
Sri T.Seshagiri Rao, Adv. For R11
M/s.Sreevatsa Associates &
Sri.Dhananjaya Joshy Advs. For R12)
The writ petition is filed under Articles 226 & 227
of the Constitution of India, praying to set-aside the
order dated 10.7.2012 vide Annexure-A on the file of the
XXXVIII Addl. City Civil and Sessions Judge at
Bangalore City in OS.No.10176.2005 on IA.No.8 under
Order VI Rule 17 of CPC.
This writ petition coming on for Preliminary
Hearing (B-Group), the Court made the following:
5
ORDER
The first respondent filed a suit for partition in the year 2005. In the year 2010, an application under Order VI Rule 17 of C.P.C. was filed by him seeking amendment of the plaint. By the impugned order, the application was allowed. Aggrieved by the said order, the present petition is filed by the defendant N0.9 / petitioner.
2. Sri.B.K.Sampath Kumar, the learned counsel appearing for the petitioner contends that the impugned order is bad in law. That the Trial Court mis- directed itself in passing the impugned order. That the question of due diligence has not been considered in the proper perspective. That, only because the evidence of the parties has not commenced, the application was allowed.
6
3. He further contends that the proposed amendment is to declare that the alleged sale deed dated 10.01.1962 in respect of Items 1 & 2 of the suit schedule property is not binding on the plaintiff. The Trial Court while considering the application held that the evidence of the parties has not commenced and the suit is at an early stage. If the proposed amendment is not allowed, there will multiplicity of proceedings. The proposed amendment is very much necessary for the adjudication of the matter and to decide the matter in controversy. Therefore, it is necessary and appropriate to allow the amendment. Hence these reasons are unsustainable.
4. He relies on the judgment reported in (2012)2 SCC 300 (J.Samuel and others -vs- Gattu Mahesh and others) to contend that the question of due diligence requires to be considered while granting relief. What constitutes due diligence is required to be ascertained 7 by the Court. He also relies on the judgment of the Apex Court reported in ILR 2007 KAR 1237 (Supreme Court - From AIR 2006 Guj 204) (Ajendraprasadji N.Pande and another -vs- Swami Keshavprakeshdasji N. and others) to contend that the requirements of Order VI Rule 17 requires to be satisfied and without giving particulars, an amendment could not be allowed. That, it has to be specifically pleaded and shown that the amendment could not have been raised earlier inspite of due diligence. That the trial is deemed to commence when the issues are framed. He pleads that the application lacks bonafides. In support of the application, what has been stated is that the alleged sale transactions were not within the knowledge of the plaintiff till the defendants filed the written statement. The defendants filed their written statement in February-March 2006. The amendment application has been filed on 22.11.2011. Therefore, even if the 8 reasoning of the plaintiff has to be accepted, the delay of almost four years has not been explained at all.
5. He further relies on the judgment of the Hon'ble Supreme court in the case of Revajeetu Builders and Developers vs.Narayanaswamy and Sons and Others, reported in (2009) 10 SCC 84. He relies on paragraph - 67, of the said judgment to contend that the Hon'ble Supreme Court has narrated what has to be taken for consideration while dealing with the application for amendment. He also relies on the fact that the application was rejected on a cost of Rs.1,00,000/-.
6. On the other hand, Sri.Madhusudan Rao, learned counsel appearing for the contesting respondents, defends the impugned order. He contends that, there is no error committed by the Trial Court, 9 which calls for interference by this Court. The amendment is necessary for the just and proper adjudication of the controversy involved in the suit. That the evidence has not commenced. The application has been filed at the earliest point of time. The same cannot be rejected solely on the ground of delay. On the question of delay, he relies on the judgment of the Apex Court reported in (2009)10 SCC 626 (Surender Kumar Sharma -vs- Makhan Singh) to contend that an amendment application is not liable to be rejected merely on the ground of delay. He pleads that the real controversy between the parties requires to be agitated and the same can be done only by allowing the amendment.
7. He further relies on the decision of the Supreme Court in the case of Rajkumar Guruwara vs. M/s. S.K. Sarwagi And Co. Pvt. Ltd., and Another reported in - AIR 2008 SC 2303 at paragraph no.5, to 10 contend that the parties would satisfy the court that inspite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. That to put it clear, Order - VI, Rule - 17 of C.P.C., confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just.
8. Learned counsels for Respondent Nos.10, 11 and 12 supports the case of the petitioners.
9. Heard learned counsels.
10. On considering the contentions and on applying the judgments stated above, it would appear that the amendment sought for would necessarily have to be considered by the Court. The suit is one for 11 partition. What is sought to be amended other than the amended paragraph, is an additional prayer to declare that the alleged sale deed dated 10.01.1962 and 08.09.1969 are not binding on the plaintiff. The reason mentioned in the Affidavit is that the same came to their knowledge only when the defendants filed their written statement. It is contented before this Court that in order to setup the additional plea, the documents pertaining to the said sale deeds had to be obtained. In that process, the delay has occurred. That the delay is bonafide and not intentional. Therefore, it is contended that even though the Affidavit does not contain these reasons, the Court should consider this explanation, as the finding of the Court on these two sale deeds is just and necessary.
11. Further, the counsel for petitioner contends that the sale deed has been executed in the year 1962. Firstly, the amendment is beyond limitation, which 12 cannot be allowed. Secondly, it would upset the agreement executed almost 50 years ago which would be unfair to them. Under these circumstances, in view of the contentions advanced what has to be held is that so far as the question of limitation is concerned, the same can be allowed only from the date on which the application is filed. Even otherwise, the petitioner is still entitled to contend that even on that date also, the suit was barred by limitation. The rights of the defendants is untouched. Hence, the contention of the petitioner insofar the limitation is concerned would stand undisturbed by allowing the application.
12. Further, the contention with regard to interference in a sale deed executed around 50 years ago would upset the entire transaction and subsequent events also, requires to be accepted. However, by allowing the application for amendment, none of the contentions are concluded. The validity of the sale deed 13 or otherwise is still open to be challenged at the stage of trial. Allowing an amendment, does not dilute the contentions of the other side. The validity or otherwise of such amendments are open to question, at trial. Hence all objections including that of delay are kept open to be decided at the final disposal of the suit. Hence, so far as these two contentions are concerned, the same is appropriately answered.
13. However, in view of the delay in filing the application, I deem it necessary to impose appropriate cost on the respondent. Firstly, in view of the time of the petitioner being lost in pursuing the application. Secondly, the precious time of the court being expended. Therefore, I'am of the considered view that costs in a sum of Rs.50,000/- be imposed on the respondent, out of which, Rs.35,000/- shall be paid to the petitioner and the remaining Rs.15,000/- shall be 14 paid to the Registry of this Court, within a period of 4 weeks from the date of receipt of a copy of this order.
For the aforesaid reasons, the writ petition is dismissed with the above observations.
14. Both counsel submit that the trial Court may be directed to dispose off the suit as early as possible and further all counsels submit that they would not seek any adjournments on any account thereafter. In view of the submission, the trial Court is directed to dispose off the suit within a period of six months from the date of receipt of a copy of this order.
Sd/-
JUDGE DH/JJ