Karnataka High Court
D.R. Narasimhamurthy vs Sri Srinivasa on 27 January, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.12102 OF 2015 (GM-CPC)
BETWEEN:
D.R. NARASIMHAMURTHY
S/O D.N. RAMASWAMY
AGED ABOUT 56 YEARS
RESIDING AT NO.333
DEVOLLA NARAYANASWAMY STREET
4TH DIVISION, KANDAWARA PETE
CHIKKABALLAPURA TOWN-562 101 ... PETITIONER
(BY SRI. M.S.VARADARAJAN, ADVOCATE)
AND:
1. SRI. SRINIVASA
S/O DODDAPOOVAPPA
AGED ABOUT 35 YEARS
RESIDING AT: BYCHAPURA VILLAGE
KASABA HOBLI
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT-562 110
2. SRI. K.N. RAMA MURTHY
S/O KOPPALU NARAYANASWAMY
AGED ABOUT 45 YEARS
RESIDING AT: 4TH DIVISION
DEVOLLA NARAYANASWAMY STREET
KANDAWARA PETE
CHIKKABALLAPURA TOWN-562101
... RESPONDENTS
(BY SRI.RAGHAVENDRA.V, ADVOCATE FOR
SRI. GURU GANESH ASSOCIATES FOR R1;
R2-VIDE COURT ORDER DATED 23.08.2019 SERVICE OF
NOTICE IS DISPENSED WITH)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 09.03.2015 PASSED IN R.A.NO.58/2011 ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSIONS COURT
CHIKKABALLAPURA VIDE ANNEXURE-A AND DIRECT THE SAID
COURT TO FRAME ADDITIONAL ISSUES THAT ARISE ON ACCOUNT
OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE
PETITIONER AND TO POST THE CASE FOR RECORDING OF
FURTHER EVIDENCE ON SUCH ADDITIONAL ISSUES.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The Suit in O.S.No.272/2007 had been filed by the 1st respondent-plaintiff seeking for a declaration of his title to the suit schedule property as described in the plaint therein and consequential injunction. Said declaration was sought for on the basis of a sale deed dated 6.10.2005 executed by the petitioner, his wife and children in favour of 1st respondent-1st plaintiff therein. The sale deed being for a land measuring to an extent of 1.19 acres, the 1st respondent had sought for a declaration in respect of the entire land measuring 1.19 acres.
2. The defence put-forth by the petitioner-1st defendant therein was that the petitioner's wife had purchased only 25 guntas of land from one Mr.Ramaiah and 3 thereafter under a partition between the petitioner, his wife and his brother, 25 guntas of land came to be allotted to the petitioner's share. Hence, the petitioner could not have sold more than what the petitioner was entitled to. The petitioner had confirmed in the said written statement that the petitioner had sold 25 guntas of land to the 1st respondent herein. The trial Court dismissed O.S.No.272/2007 holding that the 1st respondent-plaintiff had failed to prove his title over 1.19 acres, more so when the 2nd defendant in the suit had purchased the balance 33 guntas from the legal heirs of Sri.Ramaiah and hence, the 1st respondent- plaintiff could not claim right over the entire 1.19 acres of land.
3. Aggrieved by the said Judgment and decree in O.S.No.272/2007, the 1st respondent-plaintiff had filed Regular Appeal in R.A.No.58/2011 before the District and Sessions Judge, Chikkaballapur. In the said Regular Appeal, the 1st respondent-plaintiff had filed an application under Order VI Rule 17 of Code of Civil Procedure ('CPC' for short') restricting his claim to 25 4 guntas as covered under the sale deed and giving up his claim over the balance land. The said application came to be allowed by the First Appellate Court on 29.11.2014.
4. Thereafter the petitioner/1st defendant filed an additional written statement to the amended plaint. In the said additional written statement, the petitioner took up a contrary and destructive stand to that taken up in the earlier written statement. In that, in the additional written statement for the first time the petitioner took up a contention that there was no sale deed which had been executed in favour of the 1st respondent/plaintiff, it was a loan/mortgage transaction, the 1st respondent/plaintiff has played fraud on the petitioner/1st defendant and that the 1st respondent has misused the document executed by the petitioner/1st defendant to get a sale deed registered in his favour.
5. Subsequent thereto, the First Appellate Court despite the amendment being allowed did not either recast, amend or frame additional issues. The petitioner, 5 therefore, made an oral request to frame additional issues on the basis of the additional written statement submitted by the petitioner in response to the amendment carried out by the 1st respondent. The said request of the petitioner came to be rejected by way of a detailed order dated 9.3.2015 passed by the First Appellate court.
6. In the said order, the First Appellate Court has dwelled on the merits of the matter and has held at paragraph 5 thereto that the petitioner/1st defendant having categorically accepted that he had executed a sale deed in favour of the 1st respondent/plaintiff, the contentions in the additional written statement are contradicting. The petitioner/1st defendant has pleaded contrary to the pleadings earlier filed in the suit. The 1st Appellate Court rejected the oral request of the petitioner/1st defendant to frame additional issues arising out of the additional written statement. Aggrieved by the said order dated 9.3.2015 the petitioner is before this Court assailing the same.
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7. Sri.Varadarajan, learned counsel appearing for the petitioner after taking the Court through the plaint, written statement, in the suit, additional written statement filed in R.A. No.58/2011 and the impugned order, contends that the reasons for filing of additional written statement arose only on account of the amendment which came to be allowed, if not for the amendment, no additional written statement would have been filed. It was the bounden duty on the part of the Appellate Court to frame additional issues on the basis of the additional pleadings which had been filed. He relies upon the decision of the Hon'ble Apex Court in Basavan Jaggu Dhobi -v- Sukhnanandan Ramdas Chaudhary (Dead) through LRs and Others reported in 1995 Supp (3) SCC 179, more particularly paragraph 3 thereto which is reproduced hereunder:
" 3. As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any 7 manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action. Be that so."
8. By relying on the above decision, Sri.Varadarajan contends that the 1st defendant is permitted to take contradictory stand by even filing an application under Order VI Rule 17 CPC for amendment, even when contrary stand or contradictory stands are taken, it is the duty of the Court to frame issues on the basis of those contrary stand. In the present case, it is not that the petitioner has sought for amendment, the petitioner has only filed an additional written statement and these pleadings being on record, the First Appellate Court ought to have framed issues thereof.
9. Per contra, learned counsel Sri.Raghavendra, appearing for the contesting 1st respondent/plaintiff, per contra submits that the additional written statement exfacie is dishonest in nature, having accepted the sale deed executed by the petitioner/1st defendant in favour of the 1st respondent/plaintiff, petitioner/1st defendant could never have filed an additional written statement denying the same, more so when the execution thereof 8 had been accepted in the written statement filed in O.S.No.272/2007. Once the sale deed had been accepted to the extent of 25 guntas, there could be no denial muchless a new plea set up that the sale deed had been executed by fraud and or that the transaction being one for mortgage on account of loan transaction.
In this regard, learned counsel for 1st respondent/plaintiff relies upon the decision of this Court in Mohammed Ali and Another -v-
Smt.Khutejatul Kubra and Others reported in ILR 2001 KAR 4580, more particularly paragraph 6 thereto which is reproduced herein:
" 6. A perusal of the aforesaid order makes it clear that if a party wants to plead a new ground of claim or a statement containing allegation of fact inconsistent with the previous pleadings of the party pleading the same shall be raised by way of amendment only. There is a total prohibition for pleading new claims and inconsistent statements by any other mode except by way of amendment to the existing pleadings. Though subsequent pleadings is permitted under Order 8, Rule 9 of the CPC the same cannot be made use for raising pleas which are altogether new and inconsistent with the original 9 pleadings in the written statement. Order 6, Rule 7 of the CPC deals with departure from the previous pleadings, Order 6, Rule 17 of the CPC deals with the amendment of pleadings and Order 8, Rule 9 of the CPC deals with subsequent pleadings. When they are read together distinction becomes apparent. Then it is clear by way of subsequent pleadings under Order 8, Rule 9 of the CPC new claims and inconsistent pleas cannot be raised and for raising such pleas one has to resort to Order 6, Rule 17 of the CPC only."
10. By relying on the above decision, learned counsel for 1st respondent contends that there is a total prohibition for the defendants to raise inconsistent statements except by way of amendment to the existing pleadings. He therefore supports the impugned order and contends that the First Appellate Court was right in ignoring the inconsistent stand and therefore, there was no need to frame any additional issues.
11. Having heard both the counsel and having perused the pleadings on record and the decisions placed, the questions that arises for determination of this Court are: 10
i. Whether in all cases where an additional written statement is filed, the Court is bound to frame additional issues ?
ii. Can a court refuse to frame additional issues on the ground that the pleadings taken up in additional written statement are contradictory, mutually destructive or dishonest ?
iii. What Order ?
POINT No.1:
12. Order XIV of CPC deals with framing of issues. Perusal of the said Order XIV Rule 1 of CPC indicates that whenever there is a proposition of fact or law which is affirmed or denied by the other, an issue has to be framed by the Court and all issues raised by the Court are to be answered in the Judgment to be passed, in terms of Order XIV Rule 5. The Court may before passing the decree, amend the issues or frame additional issues on such terms as it thinks fit.
13. In the present situation, it is an admitted fact that 1st respondent-plaintiff had filed an application for amendment of the plaint and the relief sought for. It is also an admitted fact that it is in respect of this 11 amendment that the petitioner filed his additional written statement. It is not that the petitioner/1st defendant has sought to amend his written statement by filing an application under Order VI Rule 17 CPC, the additional written statement was filed on account of the amendment carried out by the plaintiff. Therefore, the contents of the additional written statement cannot be controlled or restricted. At the stage when issues are to be framed, order XIV does not contemplate any enquiry into the veracity or genuineness of the pleadings. What is contemplated under order XIV is that any proposition of fact or law which is essential for a decision to be rendered in the matter would have to form a basis for framing of issues by the Court. Thus, whenever there is an additional pleadings, be it an amended plaint or an additional written statement, if and so, those pleadings raise any material proposition of fact or law, it would be the duty of the Court to frame issues arising out of such new material proposition of fact or law. Needless to say that in the event the amendment or additional written statement does not raise any new material proposition 12 of fact or law, there would be no need to frame any additional issues.
14. Thus, point No.1 is answered by holding that in all situations where additional or new material proposition of fact or law is raised by filing of an amended plaint or additional written statement, the Court would have to frame additional issues.
POINT No.2:
15. Learned counsel for 1st respondent has contended that since pleadings raised in the additional written statement where mutually destructive or dishonest, vis- à-vis the pleadings raised in the written statement filed earlier in O.S.No.272/2007, the trial Court was right in going through the merits of the said pleadings made in the additional written statement and having held it to be contradictory and destructive, the trial Court was right in refusing the oral request of the petitioner to frame additional issues. This contention of the learned counsel for 1st respondent/plaintiff cannot be accepted for the reason that at the stage of framing of issues, the Court is not required to examine the merits or demerits, 13 genuineness or otherwise of the pleadings filed before the Court. That would arise at the stage when the Court is examining the pleadings and evidence on record and coming to a conclusion thereon at the ultimate stage of Judgment being rendered.
16. If the contention of 1st respondent/plaintiff is accepted, the same would result in a disastrous consequence of a finding being given by the trial Court at the stage of framing of issues itself. The trial Court on examination of pleadings on record, if it comes to a conclusion that there are material proposition of fact or law, affirmed or denied by either of the parties, the trial Court is required to proceed with framing of issues.
17. In view of the above, point No.2 is answered by holding that the trial Court is not required to dwell on merits or demerits of the pleadings raised, genuineness or falsehood of the pleadings raised, whether the pleadings raised in an amended written statement is contradictory to the earlier written statement filed, etc. The trial Court is only to frame issues on the basis of the 14 material proposition of fact or law raised in the amended or additional written statement which is filed.
18. In view of the findings of this Court on points No.1 and 2, the order dated 9.03.2015 is not sustainable and therefore, is required to be set-aside. It would also not be out of place to mention that the petitioner could not have sought for additional issues to be framed on the basis of an oral request. The petitioner ought to have filed necessary application seeking for either framing of additional issues or recasting of issues already framed. The petitioner, is therefore reserved liberty to file necessary application in regard thereto and if such an application is filed, the trial Court will consider the same on merits keeping in view the observations made hereinabove.
19. In view of the fact that suit is of the year 2007 and the Regular Appeal is of the year 2011, the First Appellate Court is requested to complete the entire proceedings within a period of six months from the date of receipt of the certified copy of this order.
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20. Both the parties are permitted to produce certified copy of this order before the Appellate Court. Writ petition is accordingly disposed of. In view of disposal of the writ petition, IA-1/2015 does not survive for consideration and is dismissed as infructuous.
Sd/-
JUDGE ln