Karnataka High Court
Smt Susheelamma vs Smt Yalagamma on 5 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JANUARY, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.43627/2015(GM-CPC)
BETWEEN:
SMT. SUSHEELAMMA,
AGED ABOUT 41 YEARS,
W/O NARAYANASWAMY,
R/AT NO 360, AYYAPPA NAGAR,
1ST MAIN, 4TH CROSS, K. R. PURAM,
BANGALORE EAST TALUK,
BANGALORE - 36.
... PETITIONER
(BY SRI G. PAPI REDDY, ADVOCATE)
AND:
1. SMT. YALAGAMMA,
AGED ABOUT 71 YEARS,
W/O LATE BYRAPPA,
MUTHAKADAHALLI VILLAGE & POST,
SULIBELE HOBLI, HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT.
2. SMT. BYRAMMA,
AGED ABOUT 51 YEARS,
D/O LATE BYRAPPA,
W/O NANJAPPA,
MADIVALA VILLAGE & POST,
KASABA HOBLI,
MALUR TALUK, KOLAR DISTRICT.
2
3. SRI NANJAPPA,
AGED ABOUT 49 YEARS,
S/O LATE BYRAPPA,
MUTHAKADAHALLI VILLAGE & POST,
SULIBELE HOBLI,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT.
4. SRI MARAPPA,
SINCE DEAD BY LRS.
(a) SMT. SAROJAMMA,
W/O LATE MARAPPA,
AGED ABOUT 45 YEARS,
(b) KUMARI BHARATHI,
AGED ABOUT 25 YEARS
D/O LATE MARAPPA
(c) KUMARI SUNANDA,
AGED ABOUT 22 YEARS
D/O LATE MARAPPA
(d) MASTER. NAGARAJ,
S/O LATE MARAPPA,
AGED ABOUT 16 YEARS,
RESPONDENT-4(d) IS MINOR,
REPRESENTED BY HIS MOTHER
R-4(a) NATURAL GUARDIAN
R4(a) TO (d) RESIDING AT
MUTHAKADAHALLI VILLAGE & POST,
SULIBELE HOBLI,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT.
5. SMT. RATHANAMMA,
AGED ABOUT 38 YEARS
W/O LATE MUNIRAJA,
3
6. SRI SHIVAKUMAR,
AGED ABOUT 18 YEARS
S/O LATE MUNIRAJA,
7. KUMARI SUSHMA,
AGED ABOUT 16 YEARS,
D/O LATE MUNIRAJA,
RESPONDENT 7 IS MINOR
REPRESENTED BY HIS MOTHER
R-5 AS NATURAL GUARDIAN
RESPONDENTS 5 TO 7 ARE
RESIDENTS OF JAVEERAMMA COMPOUND,
HUNASAMARENAHALLI
VILLAGE & POST, JALA HOBLI,
BANGALORE NORTH TALUK.
8. SRI RAJAPPA,
AGED ABOUT 51 YEARS,
S/O MUNIYAPPA,
9. SRI MUNIVENKATAPPA,
AGED ABOUT 51 YEARS,
S/O LATE BYRAPPA,
RESPONDENTS 8 AND 9 ARE
RESIDENT AT MUTHAKADAHALLI,
SULIBELE HOBLI,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT.
... RESPONDENTS
(BY SRI SANDEEP N., ADVOCATE FOR
SRI P. M. SIDDAMALLAPPA, ADVOCATE FOR R9;
R2,R5, R6 ARE SERVED BUT UNREPRESENTED;
NOTICE TO R8 IS HELD SUFFICIENT VIDE ORDER DATED
05.07.2016; R4(d) AND R7 ARE MINORS)
......
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 31.07.2015 PASSED ON I.A NO.VII BY
THE COURT OF PRINCIPAL CIVIL JUDGE & JMFC
HOSAKOTE IN PENDING O.S.NO.56/2009 VIDE
ANENXURE-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The plaintiff filed the present writ petition against the order dated 31.07.2015 made in O.S.No.56/2009 on the file of the Prl. Civil Judge and JMFC, Hosakote, dismissing I.A.No.7 filed under Order VI Rule 17 r/w Section 151 of Code of Civil Procedure.
2. The plaintiff filed suit for partition and separate possession and allotment of 1/6th share in respect of the properties morefully described in the schedule to the plaint contending that the suit schedule properties are the joint family properties of plaintiff and defendants 1 to 7. There was no partition in the joint family. Therefore, the plaintiff filed suit for partition and 5 separate possession. The defendants 1 to 8 have not filed the written statement. Defendant No.9 filed written statement, denied the plaint averments and contended that out of the land bearing Sy.No.47 measuring 3 acres 8 guntas including 2 guntas of karab, a portion measuring 1 acre 23 guntas situated at Muthagadahalli, Sulibele Hobli, Hosakote Taluk, Bengaluru, was subject matter of registered sale deed dated 10.11.1952 executed by Byrappa, S/o Bachappa, in favour of Muniramaiah, S/o Nanjappa. Accordingly, Muniramaiah acquired absolute right, title, interest and possession. The sale deed was executed by Byrappa as Kartha of the family for the legal necessity and benefit of his family. Since Muniramaiah had no issues, after his death, his brother Byrappa inherited to the property by survivorship. Defendant No.9, being the only son, inherited to the property after the death of Byrappa and is in possession of 1 acre 23 guntas and therefore, 6 sought for dismissal of the suit in respect of item No.4 of the suit schedule property.
3. Even before framing of issues, on 27.06.2013, the plaintiff filed an application under Order VI Rule 17 of Code of Civil Procedure r/w Section 151 of Code of Civil Procedure to insert paragraph 9(a) after para-9 and to insert additional prayer b(a), narrating the facts with regard to alleged sale deed dated 10.11.1952 and to declare that the alleged sale deed dated 10.11.1952 as forged and sham document, contending that, recently the 9th defendant filed written statement and took up the plea that his father Byrappa, Son of Bachappa had executed a sale deed dated 10.11.1952 in favour of one Muniramaiah, S/o Nanjappa. Thereby 9th defendant claimed his right. Therefore, the application came to be filed for amendment. The application was resisted by the 9th defendant alone, reiterating the averments made 7 in the written statement and sought to dismiss the application.
4. The Trial Court, considering the application and objections, by the impugned order, dismissed the application for amendment filed by the plaintiff. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Papi Reddy.G. learned counsel for the petitioner/ plaintiff vehemently contended that the impugned order passed by the Trial Court rejecting the application for amendment of plaint is erroneous and contrary to the material on record. The Trial Court mainly relied upon the provisions of Article 109 of the Limitation Act and several judgments which are not at all relevant to the facts and circumstances of the present case and dismissed the application as barred by 8 limitation. He further contended that in a suit for partition, question of limitation does not arise and amendment sought is with regard sale deed dated 10.11.1952 stating that it is a forged and sham document and the plaintiff by way of amendment has not asked for cancellation or for setting aside of the sale deed. Therefore, law of limitation would not arise. He further contended that at any stage of the proceeding, the application for amendment can be allowed, unless it prejudices the case of the defendants. Mere allowing the application for amendment would not amount to decreeing the suit in respect of item No.4 and the amendment sought will no way prejudices the case of the 9th defendant, nor changes the cause of action or nature of the suit. Therefore, learned counsel submits that the impugned order cannot be sustained and therefore, sought to quash the impugned order by allowing the writ petition.
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7. Per contra, Sri Sandeep.N. learned counsel for Sri P.M. Siddamallappa, learned counsel for respondent No.9 sought to justify the impugned order and strenuously contended that the application for amendment filed by the plaintiff is barred by law of limitation and therefore, the same is not maintainable. The Trial Court has rightly dismissed the application and therefore, sought for dismissal of the writ petition.
8. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed the suit for partition in respect of 5 items contending that the suit schedule properties are the joint family properties of the plaintiff and defendant Nos.1 to 7. Except 9th defendant, other defendants have not filed any written statement denying the plaint averments. The written statement filed by the 9th defendant on 10.4.2012 is only in respect of portion of item No.4 i.e., land measuring 1 acre 23 guntas out of 3 acres 8 guntas 10 situated at Muthakadahalli village, Sulibeli hobli, Hosakote taluk , on the basis of the registered sale deed dated 10.11.1952 said to have been executed by father of the plaintiff i.e, Byrappa s/o Bachappa.
9. Before framing of the issues, the present application came to be filed mainly on the ground that the plaintiff came to know alienation of a portion of item No.4 i.e., land measuring 1 acre 23 guntas out of 3 acres 8 guntas in Sy.No.47 only on 10.4.2012 and thereafter filed the application for amendment on 27.6.2013 to insert paragraph 9(a) with regard to the narration of facts in respect of the alleged sale deed dated 10.11.1952 and to declare that the said sale deed is a forged and sham document in the prayer column.
10. The trial Court considering the application and the objections proceeded to dismiss the application mainly on the ground that the age of the plaintiff has been shown as 35 years in the cause title of the plaint. 11 Considering his age, the year of birth of the plaintiff is 1974. It shows as on the date of alleged sale deed dated 10.11.1952, the plaintiff was not born. Under such circumstances, the plaintiff did not get legal right to challenge the said sale deed, which was executed much prior to her birth and the alienation can be challenged within a period of 12 years in view of Article 109 of the Limitation Act.
11. The trial Court failed to notice that it is a suit for partition and not either for cancellation or setting aside of the alleged sale deed. The trial Court proceeded on the wrong assumptions that the plaintiff does not get legal right to challenge regarding validity of the sale deed while deciding the application for amendment. It is well settled that while considering the application for amendment, the Court should not dealt with merits of the suit and only whether the application has to be allowed or not has to be considered. In a suit for 12 partition filed, there is no limitation prescribed. Whether the plaintiff is entitled for share in the property sold by her father in the year 1952 or not has to be adjudicated after full fledged trial between the parties. The trial Court erroneously proceeded to dismiss the application mainly on the ground that the application is barred by limitation. The same cannot be sustained.
12. The Hon'ble Supreme Court while considering the provisions of Order 6 Rule 17 of Code of Civil Procedure in the case of RAGU THILAK D. JOHN .vs. S. RAYAPPAN AND OTHERS reported in AIR 2001 SC 699 held at paragraph 5 and 6 as under:
5. After referring to the judgments in Charan Das v. Amir Khan [AIR 1921 PC 50], L.J. Leach & Co. Ltd. & Anr. v. Jardine Skinner & Company [1957 SCR 438], Smt.Ganga Bai v. Vijay Kumar & Ors. [1974 (2) SCC 393], M/s.Ganesh Trading Co. v.
Moji Ram [1978 (2) SCC 91] and various 13 other authorities, this Court in B.K.N. Pillai v. P.Pillai & Anr. [JT 1999 (10) SC 61] held:
"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 prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the 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.14
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 minimise 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.
13. Further, the Hon'ble Supreme Court in the case of PANKAJA AND ANOTHER .vs. YELLAPPA(D) BY L.Rs. AND OTHERS reported in AIR 2004 SC 4102 held at paragraphs 15 and 16 as under:
15. This Court in the case of L.J. Leach and Co. Ltd. & Anr. Vs. Messrs. Jardine Skinner and Co. - A.I.R. 1957 S.C. 357 has 15 held :- "It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice."
16. This view of this Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors. (2004)3 SCC
392. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice.16
14. In the present case, admittedly the amendment is sought to insert paragraph 9(a) with regard to the narration of facts in respect of the alleged sale deed dated 10.11.1952 and to declare that the said sale deed was forged and sham document. Mere allowing the application for amendment will not amount to allowing the claim of the plaintiff. Ultimately it is for the plaintiff to prove that the alleged sale deed said to have been executed by plaintiff's father is forged and sham document. The amendment sought is imperative for proper and effective adjudication of the case. When the amendment sought is bonafide, refusing the amendment will lead to injustice and multiplicity of proceedings. The proposed amendment sought will not change nature and character of the suit. If the application for amendment is allowed, it is always open for the 9th defendant to file the additional written statement raising the plea as barred by limitation and other contentions. At the stage of allowing the 17 application, the trial Court ought not to have proceeded to decide the application as barred by time.
15. In view of the above, the writ petition is allowed. The impugned order dated 31.7.2015 made on I.A. No.7 in O.S. No.56/2009 vide Annexure-F is quashed. I.A. No.7 filed by the plaintiff under Order VI Rule 17 of Code of Civil Procedure is allowed. In view of allowing the application for amendment, it is always open for the 9th defendant to file additional written statement and take all available contentions in accordance with law within a period of three weeks from the date of receipt of copy of this order.
Ordered accordingly.
Sd/-
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