Karnataka High Court
Sri H N Nandish vs Sri Rajanna @ Rajashekaraiah Since Dead ... on 25 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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NC: 2024:KHC:3629
WP No. 3235 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION NO. 3235 OF 2020 (GM-CPC)
BETWEEN:
Sri H N Nandish
S/O Late Nanjappa,
Aged About 72 Years,
R/At Kanasavadi Village & Post,
Madhure Hobli,
Doddaballapura Taluk,
Pin 561203,
Represented by his SPA Holder,
Sri.C.Shivashankar
...Petitioner
(By Sri. K. Vijaya Kumar, Advocate)
And:
Digitally signed
by BANGALORE
MADHAVACHAR
VEENA
Location: High
Court of
Karnataka Sri. Rajanna @ Rajashekaraiah
Since Dead By His LRs.
1. Smt S Sharadamma
W/O Rajanna @ Rajashekaraiah,
Aged About 61 Years,
2. P R Pushpalatha
D/O Rajanna @ Rajashekaraiah,
W/O Srinivas,
Aged About 42 Years,
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NC: 2024:KHC:3629
WP No. 3235 of 2020
3. Sri R V Gowda
S/O Rajanna,
Aged About 40 Years,
4. Sri Ravi
S/O Rajanna,
Aged About 35 Years,
Respondents No.1 to 4
are residing at Puttenahalli Village,
Kanaswadi Post,
Madhure Hobli,
Doddaballapura Taluk
Pin 561203.
...Respondents
(Respondents - served and un-represented)
****
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to (a) call for records in
O.S.No.342/2008 pending on the file of the Additional Civil
Judge and JMFC, at Doddabalapura, and set aside the order
dated 01-03-2019 passed in O.S.No.342/2008 by the Additional
Civil judge & JMFC, at Doddaballapura, in dismissing the IA filed
by the petitioner under Order VI Rule 17 of the CPC (Annexure-
A) and consequently, allow the application filed by the
petitioner under Order VI Rule 17 of the Code of Civil
Procedure; b) issue any other appropriate writ, order or
direction as this court deems it fit under the facts and
circumstances of the case, in the interest of justice and equity.
This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing, this day,
the Court made the following:
ORDER
The present petitioner, who is the plaintiff in O.S.No.342/2008, in the Court of the learned Additional Civil Judge and Judicial Magistrate First Class, -3- NC: 2024:KHC:3629 WP No. 3235 of 2020 Doddaballapura, (hereinafter for brevity referred to as "the Trial Court"), being aggrieved by the dismissal of his interlocutory application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as "the CPC") seeking permission to amend his plaint, which order is passed by the Trial Court on the date 01-03-2019 in O.S.No.342/2008, has preferred this writ petition.
2. The respondents herein, though served, have remained absent and un-represented.
3. The present petitioner, as a plaintiff has instituted a suit in the Trial Court in O.S.No.342/2008, against the present respondents, arraigning them as defendants for the relief of permanent injunction. The present petitioner as a plaintiff has contended in the Trial Court that he is the purchaser of the suit schedule immovable property from one Sri.V.R. Krishnappa, who is the grandfather of the respondents herein, under an agreement of sale dated 23-12-1987. Though the entire sale consideration of a -4- NC: 2024:KHC:3629 WP No. 3235 of 2020 sum of `7,000/- has already been paid to the vendor, however, since the registration for the nature of the property in question was not being undertaken then, the registered sale deed was not executed by the vendor. On the other hand, the vendor, acknowledging the receipt of full consideration, has put the plaintiff (petitioner herein) in possession of the suit schedule property, as such, the plaintiff has been in continuous possession of the suit schedule property. Later on, the vendor passed away and his legal representatives instituted a suit for declaration with respect to the same property against the plaintiff. This made the plaintiff to institute a suit in O.S.No.342/2008 against the defendants for the relief of permanent injunction.
4. In the Trial Court, the defendants appeared through their learned counsel in O.S.No.342/2008 and contested the matter. During the pendency of the suit, the plaintiff filed the present application under Order VI Rule 17 of the CPC, seeking permission to amend his plaint -5- NC: 2024:KHC:3629 WP No. 3235 of 2020 even by incorporating the prayer for the relief of specific performance of the alleged agreement dated 23-12-1987.
5. The defendants opposed the said application of the plaintiff, contending that the application was filed with enormous delay and was not maintainable. Though the learned counsel contended that allowing of the application of the plaintiff would change the very nature of the suit, however, they denied the plaint averments made by the plaintiff.
6. After hearing both side, the Trial Court, by its impugned order dated 01-03-2019 dismissed the interlocutory application filed by the plaintiff under Order VI Rule 17 of the CPC. Aggrieved by the same, the plaintiff has filed the present writ petition.
7. Heard the learned counsels from both side. Perused the entire material placed before the Court.
8. The main contention of the petitioner (plaintiff) in the writ petition as well the argument of the learned -6- NC: 2024:KHC:3629 WP No. 3235 of 2020 counsel for the petitioner is that, from the date of the agreement, it is the plaintiff who has been in possession of the suit schedule property. Of late, the present defendants since started interfering in his peaceful possession and enjoyment of the suit property, it necessitated him to file a suit for permanent injunction. It was only subsequently, it necessitated him to seek the relief of specific performance, as such, he filed the present application under Order VI Rule 17 of the CPC.
9. Learned counsel for the petitioner (plaintiff) further submitted that, mere delay in filing the application seeking permission to amend the pleading cannot be a ground to reject the application filed by the plaintiff. In order to avoid the multiplicity of proceedings and to decide the question of controversy between the parties and if the facts and circumstances of the case so warrants, then even with considerable delay, the application under Order VI Rule 17 of the CPC can be entertained and allowed. -7-
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10. Learned counsel for the petitioner (plaintiff) also submitted that, if the application filed by the plaintiff is allowed, no pre judice would be caused to the defendants. Further, they would have an opportunity to file their additional Written Statement and contest the matter, as such, in the ends of justice, the application filed by the plaintiff ought to have been allowed by the Trial Court. However, the Trial Court, for no convincing reasons, has dismissed the application filed by the plaintiff.
In his support, the learned counsel relied upon a judgment of the Hon'ble Apex Court in the case of Pankaja and another Vs. Yellappa (D) by L.Rs. and others reported in AIR 2004 SUPREME COURT 4102 wherein paragraphs 12, 13 and 14 of the judgment, the Hon'ble Apex Court was pleased to observe as follows:
"12. So far as the Court's jurisdiction to allow an amendment of pleadings is concerned there can be no two opinion that the same is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held -8- NC: 2024:KHC:3629 WP No. 3235 of 2020 the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the Court to allow applications in spite of the delay and laches in moving such amendment application.
13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the Court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments?
14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of -9- NC: 2024:KHC:3629 WP No. 3235 of 2020 pleadings. Each case depends on the factual background of that case."
11. In the instant case, admittedly, the suit of the plaintiff was filed in the month of June 2008, only for the relief of permanent injunction. The application under Order VI Rule 17 of the CPC came to be filed by him after the commencement of the trial in the Original Suit but not earlier than the date 17-08-2015. Thus, for nearly seven years from the date of institution of the suit, the applicant/plaintiff did not think of filing the similar application, seeking amendment of the plaint.
12. No doubt, the learned counsel for the petitioner (plaintiff) drew the attention of this Court to Annexure 'H', which is shown to be a copy of an agreement for sale between the parties, wherein the vendor is shown to have acknowledged the receipt of a total consideration and delivered the possession of the property to the purchaser (plaintiff) and is also shown to have stated that he would come whenever he is called for
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NC: 2024:KHC:3629 WP No. 3235 of 2020 and execute the registered sale deed in his (petitioner's) favour, but still, mere holding of an agreement of sale, even for considerable length of time, would not, by itself, give a right to the plaintiff to seek the amendment of his plaint belatedly, that too, particularly, after the commencement of the trial in the matter.
13. Proviso to Order VI Rule 17 of the CPC clearly mentions that, 'no application for amendment shall be 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'.
14. No doubt in Pankaja's case (supra), the Hon'ble Apex Court has made an observation that, delay cannot be the sole criteria for rejection of an application seeking amendment of the pleadings, however, in paragraph 12 of its judgment, the Hon'ble Apex Court has held that, the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case
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NC: 2024:KHC:3629 WP No. 3235 of 2020 so permits, it is always open to the Court to allow applications in spite of delay and laches in moving such amendment applications. Thus, it is only when the facts of the case so permits, the delay can be ignored in entertaining the application seeking amendment of the pleading.
15. In the instant case, even according to the petitioner/plaintiff, as on the date of he filing the present Original Suit for permanent injunction in the month of June 2008, he was already a holder of an agreement of sale, which, even according to him, is of the year 1987. Thus, his very first initiation of a legal proceeding against the defendants which was in the year 2008 itself was with enormous delay of twenty one (21) long years from the date of the alleged execution of agreement of sale.
16. Even with such enormous delay of nearly twenty one years, the plaintiff still chose to file the Original Suit, holding an alleged agreement of sale in his hand, only for the relief of permanent injunction, without
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NC: 2024:KHC:3629 WP No. 3235 of 2020 even seeking the relief of specific performance of the alleged agreement, knowing fully well that, what was in his hand was only an agreement of sale with respect to an immovable property and that it was not a registered sale deed. Thus, the cause of action has accrued and arisen to the plaintiff very long back, even prior to the filing of the Original Suit before the Trial Court. Still, as on the date of filing of the Original Suit also, for the reasons best known to him, the plaintiff confined the relief only to the relief of permanent injunction.
17. Secondly, even in his present application filed under Order VI Rule 17 of the CPC, seeking permission to amend his pleading also, the petitioner (plaintiff) has not explained as to what made him not to pray for the relief of specific performance at the time when he instituted the Original Suit for permanent injunction. He waited till the year 2015 and only thereafter he filed the interlocutory application under Order VI Rule 17 of the CPC.
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18. Under the said circumstance, when the plaintiff who has approached the Court being aware of the reliefs available to him and which he was required to pray before the Court, has not chosen to pray for the same, he cannot, at a later date, that too, with enormous delay, come and plead that in order to avoid multiplicity of litigation, his application under Order VI Rule 17 of the CPC, seeking amendment of the pleading ought to have been allowed by the Trial Court.
19. No doubt, the purpose of adjudication of a matter is to decide the real question of controversy between the parties, however, when the plaintiff himself chooses to show before the Court that the real controversy between the parties was only the alleged possession of the suit schedule property and has not brought to the notice of the Court about his entitlement or necessity to pray the relief of specific performance also in his favour, the real question of controversy between the parties cannot be imagined as the execution of sale deed, but the real
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NC: 2024:KHC:3629 WP No. 3235 of 2020 question of controversy was only with respect to the alleged possession of the property and interference by the defendants in it. As such, the argument of the learned counsel for the petitioner (plaintiff) that in order to avoid multiplicity of proceedings and to decide the real question of controversy, the application under Order VI Rule 17 of the CPC ought to have been allowed by the Trial Court, is not acceptable.
20. On the other hand, as rightly observed by the Trial Court, allowing the application of this nature with enormous delay, would not only change the very nature of the suit from the suit for permanent injunction to the suit for the relief of specific performance, but it also takes away the valuable right which has already accrued in favour of the defendants in the suit. Thus, if the application is allowed, the same would cause greater prejudice and affect the interest of the defendants than causing any inconvenience to the plaintiff.
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21. Since the Trial Court, observing that the application filed by the plaintiff does not deserve to be allowed, has rightly proceeded to reject the application of the plaintiff filed under Order VI Rule 17 of the CPC, I do not find any reason to a allow the said application by setting aside the impugned order passed by the Trial Court, which is just and proper.
Accordingly, I proceed to pass the following:
ORDER The writ petition filed by the petitioner (plaintiff) stands dismissed as devoid of merit.
Sd/-
JUDGE BMV* List No.: 1 Sl No.: 62