Karnataka High Court
M Manjunath vs M Latha on 14 June, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.63444/2016(GM-CPC)
BETWEEN:
M.MANJUNATH
S/O LATE D.MADEGOWDA
AGED ABOUT 39 YEARS
R/AT MARIGUDI ROAD
5TH CROSS, HALAHALLI
MANDYA - 571 401. ... PETITIONER
(BY SRI S.N.BHAT, ADVOCATE)
AND:
1. M.LATHA
W/O YOGESH B.N,
D/O LATE D.MADEGOWDA
AGED ABOUT 46 YEARS
R/AT NO.440, SRI SAYI SADANA
BEL LAYOUT, MAGADI ROAD
BENGALURU - 560 091.
2. M.GEETHA
W/O K.R.MAHENDRABABU
D/O LATE D.MADEGOWDA
AGED ABOUT 43 YEARS
R/AT NO.18, BANDIGOWDA LAYOUT
MANDYA - 571 401.
3. M.SUNITHA
W/O SOMEGOWDA
D/O LATE D.MADEGOWDA
AGED ABOUT 41 YEARS
2
R/AT SRI.SAIPRIYA NILAYA
JCR EXTENSION, 2ND CROSS
OPP.TO GOVT.SCHOOL
CHITRADURGA - 577 501.
4. K.L.PADMA
W/O LATE D.MADEGOWDA
AGE 64 YEARS
R/AT MARIGUDI ROAD
5TH CROSS, HALAHALLI
MANDYA - 571 401. ...RESPONDENTS
(BY SRI. H.MUJTABA, ADVOCATE FOR R-1 TO R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDERS PASSED BY THE LEARNED 1ST
ADDITIONAL SENIOR CIVIL JUDGE & CJM, MANDYA
DATED 25.11.2016 FILED UNDER ORDER VI RULE 17 IN
O.S.NO.41/2015 VIDE ANNEXURE-'E' AND
CONSEQUENTLY ALLOW THE APPLICATION FILED
UNDER ORDER VI RULE 17 OF CPC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Heard Sri.S.N.Bhat, learned counsel appearing for the petitioner and Sri.H.Mujtaba, learned counsel appearing for Respondents No.1 to 3.
2. Respondent No.4 is the first defendant before the Trial Court who had not opposed the 3 prayer sought for by the writ petitioner before the Trial Court, as such no notice is issued to Respondent No.4.
3. Respondents No.1 to 3 herein have filed suit for partition and separate possession contending interalia that their father Sri. D. Madegowda died intestate on 06.09.2014 leaving behind the plaintiffs and defendants as Class - I heirs and no partition of the suit property had taken place during the lifetime of their father and plaintiffs and defendants having succeeded to the estate of deceased Madegowda, they are entitled for their share in the suit property. Petitioner (second defendant) on service of suit summons has entered appearance and denied the averments made in the plaint except to the extent expressly admitted thereunder. When the matter was set down for recording of evidence of defendant, an application under Order 6 Rule 17 of C.P.C. came to be filed by the second defendant for amendment of the Written Statement namely, to insert para 8(a) in 4 the Written Statement whereunder second defendant sought to plead that there was a Release Deed dated 13.11.1984 executed by the father in favour of defendants, pursuant to which revenue records also came to be mutated. As such, it was sought to be contended that second defendant had succeeded to a share out of the share of the deceased Madegowda. This application, which was filed by second defendant was opposed by the plaintiff, resulted in impugned order being passed rejecting the application on the ground that it would amount withdrawal of admission and it would amount to permitting the second defendant to raise different pleas at different times. Lastly, on the ground that it would result in a De Novo trial.
4. It is the contention of Sri.S.N.Bhat, learned counsel appearing for the petitioner that amendment sought for would have bearing on the rights of the petitioner and delay, if any, raising in said plea has been explained by the second defendant 5 in the affidavit supporting the application and this aspect has not been taken note by the Trial Court and as such, he seeks for allowing the writ petition.
5. Per contra, Sri.H.Mujtaba, learned counsel appearing for Respondents No.1 to 3 would support the impugned order by relying on the judgment of the Apex Court in the case of VIDYABAI AND OTHERS VS. PADMALATHA AND ANOTHER reported in AIR 2009 SC 1433.
6. Having heard the learned Advocates appearing for the parties and on perusal of the record it would disclose that Trial Court has rejected the application for amendment of Written Statement on three grounds as noticed herein above, namely, delay; additional facts being brought on record and inconsistent stands being taken by the second defendant. An application for amendment of Written Statement stands on a different footing than amendment of plaint. There cannot be any dispute to 6 the proposition that defendant can raise inconsistent pleas or alternate pleas though it would be impermissible for a plaintiff. On that ground, Court cannot refuse amendment sought for. This view is fortified by the law laid down by the Apex Court in the case of BALDEV SINGH AND OTHERS VS. MANOHAR SINGH AND ANOTHER reported in AIR 2006 SC 2832 at para No.16, which reads as follows:
"16. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co.Ltd. & Anr. vs. M/s.Ladha Ram & Co. [(1976) 4 SCC 320], this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence."
(Emphasis supplied by me) 7
7. Proviso to Rule 17 of CPC of Order 6 would indicate that amendment of pleading would not be allowed when trial has commenced. However, exception is carved out to said rule namely, if Court comes to a conclusion that inspite of due diligence a party could not raise the plea proposed before commencement of trial and it would be essential for adjudicating the dispute between parties. If these ingredients are satisfied, there cannot be refusal of the amendment. In the instant case, Respondent Nos.1 to 3 have filed suit for partition and separate possession. The plea sought to be put forward by the second defendant under the proposed amendment is to the effect that father of the plaintiffs and second defendant Sri.D.Madegowda had executed a release deed in favour of both the defendants in the year 1984, i.e., on 13.11.1984. Undisputedly, at that point of time, the second defendant was a minor. He (second defendant) has denied the claim of the 8 plaintiffs in the Written Statement even at the first instance. However, this fact of release deed having been executed by the father deceased Madegowda in favour of defendants had not been pleaded. When the said document has come into existence at an undisputed point of time and the rights of the parties would get determined by virtue of said release deed and same being a material evidence, plea cannot be shut out from being raised. However, for evidence being brought on record, plea is required to be raised and it is this plea of release deed having been executed by the father, which was sought to be put forward by second defendant under proposed amendment. The reason for such plea not having been raised at earlier point of time has been explained by the second defendant in the affidavit supporting the application namely, it was not in his reach. However, Trial Court has examined said plea and rejected the same on the ground that certified copy had been obtained on 13.12.2009, which was 9 much earlier to the filing of the suit and as such, second defendant had knowledge. Neither certified copy produced by the second defendant nor the finding of the Trial Court would disclose as to who had applied and obtained certified copy. On the other hand, second defendant has clearly and categorically stated in his affidavit supporting the application for amendment that he was able to locate said document in his house while he was searching for other documents. As such, trial court ought to have adopted liberal approach in accepting the cause for delay. No litigant would stand to benefit by raising a plea belatedly until and unless it is established on facts that such plea had not been raised earlier inspite of such party having knowledge and as such, malafides are attributable. In the instant case, said circumstances has not been obtained and as such, this Court is of the considered view that Trial Court was not justified in rejecting the application for amendment.
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8. Hence, I proceed to pass the following:
ORDER
(i) Writ Petition is hereby allowed.
(ii) Order dated 25.11.2016 (Annexure - 'E') is hereby set aside and I.A. filed under Order 6 Rule 17 read with Section 151 of C.P.C., (Annexure - 'C') is hereby allowed on payment of cost of Rs.3,000/- (Rupees Three Thousand only) payable by the second defendant to the plaintiffs.
It is needless to state that by virtue of the said plea being raised, Trial Court shall permit the plaintiffs to lead further evidence, if sought for and no opinion is expressed with regard to the merits of the claims.11
All contentions of both parties are left open and Trial Court shall examine the case of the parties merits without being influenced by any observations made.
Ordered accordingly.
SD/-
JUDGE dh