Karnataka High Court
Smt. Venkubai vs Sri P Subramanyam on 18 September, 2018
Author: S G Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.40998 /2017 (GM-CPC)
BETWEEN:
SMT. VENKUBAI
SINCE DEAD REPRESENTED
BY HER LEGAL REPRESENTATIVES
PETITIONER NOS. 2 TO 7
1. SMT. K.SARASWATHAMMA
D/O. LATE S.KRISHNAMURTHY
AND W/O. SRI.K.G.ANANTHARAMU
AGED ABOUT 63 YEARS
R/AT:NO.46, DVG ROAD
GANDHI BAZAR CIRCLE
BASAVANAGUDI
BANGALORE-560 004.
2. SMT. K.VANAJAKSHI
D/O. LATE S. KRISHNAMURTHY AND
W/O. SRI N.H.RAO
AGED ABOUT 58 YEARS,
3. SMT. K.CHANDRAKANTHA
D/O. LATE S.KRISHNAMURTHY AND
W/O. LATE SRI N.JANARDHAN RAO
AGED ABOUT 56 YEARS,
4. SMT. K.SUNANDA
D/O. LATE S.KRISHNAMURTHY
2
AND W/O.SRI S.K.RAJU
AGED ABOUT 47 YEARS,
PETITIONERS NOS. 02 TO 04
ARE R/AT: NO.210, 4TH CROSS
NAGASHETTYHALLI
BANGALORE-560 094.
5. SMT.K.SAVITHA
D/O. LATE S.KRISHNAMURTHY
AND W/O.SRI K.SURESH
AGED ABOUT 44 YEARS
R/AT:NO.688
1ST E-MAIN ROAD
GIRINAGARA 2ND PHASE
BANGALORE-560 085.
THE PETITIONER NOS. 2 TO 5
ARE REPRESENTED
BY THEIR GENERAL POWER
OF ATTORNEY HOLDER
SRI K.SURESH
S/O. LATE S.KRISHNAMURTHY
THE PETITIONER NO.6
R/AT:NO.26, "SRI KRISHNA NILAYA"
S.KRISHNAMURTHY LAYOUT
1ST "A" MAIN ROAD
CIL WEST END, SANJAYANAGARA
BANGALORE-560 094.
6. SRI.K.SURESH
S/O. LATE S.KRISHNAMURTHY
AGED ABOUT 50 YEARS
R/AT:NO.26, "SRI KRISHNA NILAYA"
S.KRISHNAMURTHY LAYOUT
1ST "A" MAIN ROAD
3
CIL WEST END, SANJAYANAGARA
BANGALORE-560 094. ... PETITIONERS
(BY SRI.D.R.RAJASHEKHARAPPA, ADV. )
AND:
1. SRI. P.SUBRAMANYAM
S/O. SRI.MUNIRATHNAM NAIDU
AGED ABOUT 50 YEARS
R/AT:NO.502, GROUND FLOOR
8TH MAIN ROAD, 10TH CROSS
SADASHIVANAGARA
BANGALORE-560 080.
2. SRI.P.C.GEORGE
S/O.SRI.P.T.CHEEKU
AGED ABOUT 56 YEARS
R/AT: NO.13/1, 1ST CROSS
GUNDAPPA BLOCK
M.R.PALYAM
BANGALORE-560 046. ... RESPONDENTS
(BY SRI.M.RAMASWAMY, ADV. FOR R2
R1 IS SERVED )
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER,
DATED 25.11.2016 MADE BY THE PRINCIPAL SENIOR CIVIL
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE ON I.A.2 IN
O.S.1404/2005 ON HIS FILE VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 28/08/2018 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
4
ORDER
The petitioners are before this Court under Article 227 of the Constitution of India, assailing the order dated 25.11.2016 on I.A.No.2 in O.S.No.1404/2005 passed by the Principal Senior Civil Judge, Bangalore Rural District, Bangalore.
2. Petitioners are plaintiffs and respondents are defendants in O.S.No.1404/2005 filed for declaration that the sale deed dated 07.11.2003 executed by the first defendant in favour of the second defendant in respect of the suit schedule property is not binding on them and for permanent and mandatory injunction. The plaintiffs filed application under Order VI Rule 17 of CPC to amend the plaint to include certain averments which have taken place during the pendency of the suit and to add additional prayer of possession. The said application was opposed by the defendants by filing objections contending that there is inordinate delay in seeking the additional relief and the 5 written statement is filed long back wherein the defendants had contended that they were in occupation of the suit schedule property and they were constructing the building. The trial Court, by its order dated 25.11.2016 rejected the application filed under Order VI Rule 17 of CPC, which order is questioned in this writ petition.
3. Heard the learned counsel for the petitioners as well as the respondents and perused the writ papers.
4. Learned counsel for the petitioners submits that originally the suit is filed for declaration and for permanent and mandatory injunction. It is submitted that during the pendency of the suit, the defendants completed construction on the suit schedule property and have been residing there, thereby effectively dispossessing the plaintiffs. Therefore, it has become necessary to seek relief of possession in respect of the suit schedule property. More over it is contended in the affidavit in support of the I.A. for amendment that during the pendency of the suit, the plaintiffs were effectively 6 dispossessed and they had lodged complaint against the defendants with the jurisdictional police. It is further submitted that the suit was dismissed for non-prosecution as the plaintiffs failed to lead evidence on 04.02.2011. Thereafter the suit was restored by an order dated 01.02.2012 in Misc. Petition No.22/2011. The suit is at the stage of evidence of plaintiffs. According to the learned counsel for the plaintiffs, the amendment is absolutely necessary to determine the real question in controversy and to adjudicate completely the issues involved in the suit.
5. Per contra, learned counsel for the respondents submits that the amendment sought is liable to be rejected on the ground of delay and latches. It is further submitted that the additional relief sought in the amendment application is barred by limitation. It is submitted that the defendants had filed written statement on 30.09.2005 itself contending that the defendants had occupied the building put up by them in the schedule property and the amendment application is filed 7 after more than ten years from the date of filing the written statement.
6. The suit is one for declaration that the sale deed executed by the first defendant in favour of the second defendant is not binding on the plaintiffs and for mandatory injunction. It is the specific case of the plaintiffs that during the pendency of the suit, the defendants completed construction on the suit schedule property and are residing there, by effectively dispossessing the plaintiffs, which is denied by the defendants stating that they had already contended in the written statement itself that they had completed construction and residing in the suit schedule property. Whether the plaintiffs were dispossessed during the pendency of the suit or whether the defendants were already in occupation of the suit schedule property is a matter for trial, which the parties have to prove in the trial by producing cogent evidence before the Court.
8
7. Order VI Rule 17 of CPC provides for amendment of pleadings at any stage of the suit. The Proviso to Order VI Rule 17 puts an embargo on the Court that unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In the case on hand, it is submitted that the suit is at the stage of evidence of plaintiffs. The amendment sought is to include averments which have taken place during the pendency of the suit. When, it is the specific case of the plaintiffs that they were effectively dispossessed during the penency of the suit and hence they have sought for prayer of possession in the amendment application, the trial court ought to have allowed the amendment application. The trial Court erred in rejecting the amendment application holding that relief sought by the plaintiffs is hopelessly barred by limitation. The question of limitation is a question of law and facts which requires evidence. Therefore, in view of the averments made in the application for amendment and objections by the defendants, it is a matter for trial. The 9 purpose of allowing amendment is to minimize the litigation and to avoid multiplicity of proceedings. The Hon'ble Supreme Court in a decision reported in 2012 AIR SCW 5419 in the case of ABDUL REHMAN AND ANOTHER v/s MOHD.RULDU AND OTHERS at paragraphs 7 and 8 has held as follows:
"7. It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
8. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for 10 amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question of controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court 11 in J.Samuel and others V. Gattu Mahesh and others, (2012) 2 SCC 300 : (AIR 2012 SC (Civ) 811) and Rameshkumar Agarwal V. Rajmala Exports Pvt. Ltd. And others, (2012) 5 SCC 337 : (AIR 2012 SC 1887). Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."
The Hon'ble Supreme Court in another judgment reported in (2002) 7 SCC 559, in the case of SAMPATH KUMAR V/S AYYAKANNU AND ANOTHER held as under:
"9. Order 6, Rule 17 of the 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 form the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more 12 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 case 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.
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 case the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date of which the application seeking the amendment was filed. (See observations in 13 Siddalingamma V. Mamtha Shenoy (2001) 8 SCC
561).
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 14 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 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."
Further in a judgment reported in (2001) 2 SCC 472 in the case of RAGU THILAK D. JOHN v/s S.RAYAPPAN AND OTHERS, the Apex Court at paragraphs 4, 5 and 6 has held as follows:
"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, 15 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 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 Khan, L.J., Leach & Co. Ltd. V/S Jardine Skinner & Co., Ganga Bai V/S Vijay Kumar, Ganesh Trading Co. V/S Moji Ram and various other authorities, this Court in B.K.Narayana Pillai v/s Parameswaran Pillai 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 16 prayers should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with 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 minimize 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."
8. Keeping in mind the principles laid down by the Hon'ble Supreme Court in the above cited decisions, I am of the view that the amendment sought for by the 17 plaintiffs/petitioners herein deserves to be allowed and the amendment would come into effect from the date of filing the application for amendment which would protect the interest of the defendants. If the amendment application is allowed, in terms stated herein, no prejudice would be caused to the defendants and they would get an opportunity to file additional written statement.
9. With the above observations, the petition is allowed with cost of Rs.5,000/- to be paid by the petitioners/plaintiffs to the defendants on the next date of hearing.
Sd/-
JUDGE mpk/-* CT:SK