Karnataka High Court
Mrs Yamuna Ramesh vs Mrs Nalina Senthilkumar on 23 March, 2018
Author: G.Narendar
Bench: G.Narendar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
WRIT PETITION Nos.37633-37634/2017 (GM-CPC)
BETWEEN
1. MRS. YAMUNA RAMESH,
W/O MR. RAMESH,
AGED ABOUT 40 YEARS,
R/AT 2372, 16TH MAIN,
HAL II STAGE, INDIRANAGAR,
BANGALORE-560008.
2. MR. RAMESH
S/O MR. MUNIYAPPA,
AGED ABOUT 41 YEARS,
R/AT 2372, 16TH MAIN,
HAL II STAGE, INDIRANAGAR,
BANGALORE-560008. ... PETITIONERS
(BY SRI. THONTADHARYA R.K, ADV.)
AND
MRS. NALINA SENTHILKUMAR
W/O CHINNU SENTHILKUMAR
AGED ABOUT 42 YEARS
R/AT NO.130, III MAIN, I BLOCK
NEAR WIPRO PARK, KORAMANGALA
BANGALORE-560034. ... RESPONDENT
(BY SRI. C K NANDA KUMAR, ADV.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DATED 10.07.2017 IN O.S.8675/2012 PASSED BY
THE HON'BLE XIV ADDL. CIVIL JUDGE AT BANGALORE
DISMISSING I.A.6 IN O.S.8675/2012 AT ANNEX-A ETC.
THESE WPs COMING ON FOR 'PRELIMINARY HEARING'
THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
Heard the learned counsel for the petitioners and the learned counsel for the respondent.
2. The petitioners are before this court impugning the order dated 10.07.2017 rendered on I.A. No.VI preferred under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure in O.S. No.8675/2012 passed by the XIV Addl. City Civil Judge (CCH-28), Bengaluru.
3. On a perusal of the order impugned, it is apparent that the trial court has been pleased to reject the application being persuaded by the fact that the proposed amendment is belated and is after commencement of the trial. It has also noted that the proposed amendments are already on record in the written statement filed into court.
4. Learned counsel for the petitioners would contend that the reasoning set-out by the trial court is erroneous and contrary to law laid down by the Hon'ble Apex Court. He would submit that the trial court failed to appreciate the contention that the MOU, said to have been executed between 3 the parties, was necessary for a complete adjudication of the lis between the parties.
5. It is further contended that the proposed amendments are an elucidation of the averments incidental to the case set-out in the written statement. He would contend that the trial court failed to appreciate the fact that the amendment to the averments in the plaint and the amendment to the averments in written statement stand on a different footing all together. The said submission on behalf of the petitioners is no more res-integra and has been set at rest by the Hon'ble Apex Court in a catena of judgments.
6. The learned counsel for the petitioners would place reliance on the judgment of the Hon'ble Apex Court rendered in the case of Baldev Singh and Others Vs. Manohar Singh and Another reported in (2006) 6 SCC 498 and he would draw the attention of the court to paragraph 15 which reads as under:-
"That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle"4
7. He would also place reliance on the observations of the Hon'ble Apex Court as set-out in paragraph 8 of the ruling reported in (2017) 8 SCC 567 in the case of State of Bihar and Others Vs. Modern Tent House and Another which reads as under:-
"8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defence already taken; thirdly, it does not introduce any new defence compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defence already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defence or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should 5 have been allowed by the courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises." and the observations contained in para 16 of the ruling reported in (2017) 5 SCC 212 in the case of Chakreshwari Construction Private Limited Vs. Manohar Lal which reads as follows:-
"16. It is true that there was some delay on the part of the appellant in filing the applications but, in our opinion, the appellant had explained the delay. One cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the list."
8. With regard to delay, it is contended that mere delay cannot be a ground for rejecting the prayer for amendment and would contend that the parties are entitled to seek for amendment of their pleadings at any stage during the pendency of the trial and also at the first appellate stage 6 with the leave of the court provided, the amendment is bonafide, relevant and necessary for determining the rights of the parties to the lis.
9. The learned counsel for the respondents would draw the attention of this court to certain dates as set-out in the application preferred by the defendants under Order 6 Rule 17 of Code of Civil Procedure. He would contend that though the petitioners entered appearance on 31.03.2013 they got their written statement filed only on 26.09.2013 and it is submitted that issues were framed on 14.07.2014 and the plaintiffs adopted the earlier evidence led in by her and the matter was set out for cross examination on 02.09.2014 and on 20.10.2014 on which date there was no representation on behalf of the defendants/petitioners herein, but on 06.11.2014 the defendants' counsel sought for and obtained time for cross examination of PW1, but on 02.12.2014 came up with application for rejection of plaint. The application came to be rejected on 20.04.2016 and that thereafter the defendants' counsel sought three more adjournments and on 01.08.2016 P.W.1 partly cross examined and thereafter seven adjournments were granted 7 for the purpose of enabling the further cross examination of P.W.1. That the stage of cross examination was closed and suit was adjourned to 06.03.2017 for further evidence of the plaintiff and it is on that date, the defendants/petitioners herein came up with the present application. He would contend that the mere recount of the innumerous adjournments is sufficient to demonstrate the singular fact that the petitioners are acting in a motivated manner with the sole intention of protracting the trial and the application wholly lacks in bonafides.
10. He would further contend that the amendment sought is nothing but a repetition of the facts already stated by way of written statement and he would submit that the present exercise is nothing but an attempt to create a defence against the prosecution which the petitioner is facing for dishonouring the cheques issued by her in respect of which prosecution was pending in Rasipuram, Tamil Nadu and that the present suit is one arising out of a loan agreement. He would contend that the petitioners have not approached this court with clean hands and hence, lacks bonafides and requires to be rejected in limini. 8
11. This court has considered the various contentions and perused the averments contained in the application and averments in the writ petitions and the application and the written statement. A bare perusal of the proposed averments would demonstrate that the same are more in the nature of providing details which are not only incidental to the averments set-out in paragraphs 2 and 4 of the written statement but are also required to bring on record and explain the MOU. The proposed amendments are purportedly a narrative of the link between the parties in the past leading to the establishment of the partnership firm and detailing circumstances that led to the execution of the loan agreement which undoubtedly is the basis for the suit. The amendment sought to be incorporated neither creates any new plea nor creates a new ground of attack and is rather an elucidation and buttressing of the allegations set-out in the written statement. Thus it can be safely held that the proposed amendment does not in any manner prejudice the case of the plaintiff and further more, it is relevant to note that the trial court while disposing of the application has solely relied on the bar contained in the provision. The trial 9 court failed to note that the bar under the proviso under Order VI Rule 17 of Code of Civil Procedure is not an absolute bar and in appropriate circumstances and for bonafide reasons amendments are permissible even after the commencement of trial.
12. In the instant case the plea that was set up by the petitioners/defendants for the belated attempt is that the memorandum of understanding executed between the parties had been misplaced and the same had been traced only recently. The said fact of execution of the document is also not denied by the respondent-plaintiff. The application was contested on the sole premise of being belated. The law laid down by the Hon'ble Apex Court in this regard as stated supra, leaves no scope for any ambiguity with regard to the fact that applications for amendment even after the commencement of the trial are permissible in consonance with the proviso to Order VI Rule 17 of Code of Civil Procedure.
13. In the instant case, after a perusal of the pleadings set-out in the application and averments contained 10 therein and after looking into the amendments sought to be incorporated in the written statement and after perusing the objections set-out to the said application, this court is of the considered opinion that the order impugned cannot be sustained as the court below has failed to address itself to the ground on which the defendants sought to justify the delay in preferring the application under Order 6 Rule 17 of Code of Civil Procedure. The cause is set-out in para 4 of the application.
In view of the above discussion, this court is of the considered opinion that the application requires to be allowed. Accordingly, the writ petitions are allowed and the order impugned herein dated 10.07.2017 rendered on I.A. No.VI is set-aside.
Learned counsel for the respondent would make a submission to direct the trial court to expedite the hearing and disposal of the suit since it pertains to the year of 2012. The request on behalf of the respondent is not unjustified. Though it is a fact that the defendants have been restrained from alienating the assets, yet the suit being one for a money 11 decree, the request on behalf of respondent herein is not unjustified. Hence, it would be appropriate to direct the trial court to expedite the hearing and disposed of the suit within one year from the date of receipt of the certified copy of this order.
Writ petitions stand ordered accordingly.
Sd/-
JUDGE Chs* CT-HR