Karnataka High Court
Sri K Rajanna vs Sri V R Santhosh Kumar on 30 October, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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NC: 2023:KHC:38430
WP No. 12401 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION NO. 12401 OF 2018 (GM-CPC)
BETWEEN:
1. Sri. K. Rajanna,
S/o. Kadaraiah,
Aged About 63 Years,
2. Smt. Shantha,
W/o. K. Rajanna,
Aged About 60 Years
Both are residing at
No.81, 7th Cross,
Attur Layout,
Yelahanka,
Digitally Bengaluru-560 064.
signed by
VEENA ...Petitioners
KUMARI B
Location:
High Court of (By Sri. Rajanna L., Advocate)
Karnataka
And:
1. Sri. V. R. Santhosh Kumar,
S/o. M. Ramaiah,
Aged about 38 Years,
R/at Attur Village,
Yelahanka Hobli,
Bengaluru North Taluk,
Bengaluru-560 064.
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NC: 2023:KHC:38430
WP No. 12401 of 2018
2. Smt. C. B. Savithramma,
W/o. Late K.S. Gangappa,
Aged about 55 years,
R/at No.81, 7th Cross,
Attur Layout,
Yelahanka,
Bengaluru-560 064.
...Respondents
(By Sri. N. Byregowda, Advocate for R-1;
Notice to R-2 is dispensed with vide order dated 27-07-2023)
***
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India, with the following prayers:
"(a) Issue a writ of certiorari or order or
direction, in the nature of a writ, quashing/set-aside the
order dated 26-02-2018 on the application i.e.I.A.No.VII
filed by the 1st respondent under Order VI Rule 17 r/w.
Section 151 of the Code of Civil Procedure in
O.S.No.279/2009 passed by the learned III Additional
Civil Judge, Bengaluru Rural District, Bengaluru,
produced at Annexure-E to the writ petition, in the
interest of justice;
(b) Consequently dismiss the said application
filed by the 1st respondent under Order VI Rule 17 R/W
Section 151 of the Code of Civil Procedure in
O.S.No.279/2009, which is produced at Annexure -C to
the Writ Petition;
(c) Pass such other orders, as the petitioners
are entitled to in the facts and circumstances of the case,
including the costs of the proceedings, 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:
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NC: 2023:KHC:38430
WP No. 12401 of 2018
ORDER
The present respondent No.1, as a plaintiff has instituted a suit in O.S.No.279/2009, against the present petitioners and present respondent No.2 arraigning them as defendants No.1, 3 and 2 respectively, in the Court of the learned III Additional Civil Judge, Bengaluru Rural District, Bengaluru (herein for brevity referred to as "the Trial Court") for the relief of permanent injunction with respect to the suit schedule immovable property which is said to be a Site measuring 35 ft. x 35 ft. as per Annexure 'A' to the petition, which is the copy of the plaint in O.S.No.279/2009.
2. The defendants No.1 and 3 appeared through their counsel before the Trial Court and filed their Written Statement on the date 09-03-2009, as could be seen from a copy of it, which is produced at Annexure 'B' to the writ petition.
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NC: 2023:KHC:38430 WP No. 12401 of 2018 In the said Written Statement, the defendants No.1 and 3, inter alia, contended that they have been in physical possession of the suit schedule property since the year 1995 under a General Power Attorney (GPA) and have put up a construction by duly obtaining necessary licence from the local Grama Panchayath, as such, by running a work shop in the said construction, they have been in possession of the suit schedule property since the year 1995.
3. Under the said circumstance, the plaintiff, seven years after instituting the suit, filed an interlocutory application - I.A.No.VII under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as "the CPC") on the date 09-11-2016, seeking permission to amend the plaint including the prayer in the suit. He sought for permission to incorporate paragraphs 2(a), 2(b), 2(c) and 2(d) and also two prayers, one for declaration to declare that the Sale Deed dated 24-05-2006 and the General Power -5- NC: 2023:KHC:38430 WP No. 12401 of 2018 Attorney(GPA) of the even date are not binding upon him and for a mandatory injunction, seeking a direction to the defendants to demolish the illegal construction said to have been put up by the defendants on the suit schedule property and to handover the vacant possession of the suit schedule property to the plaintiff.
4. The present petitioners, who are defendants No.1 and 3, filed their Statement of Objections to the said application. However, the Trial Court, by its impugned order dated 26-02-2018, allowed the said application (I.A.No.VII) filed under Order VI Rule 17 read with Section 151 of the CPC, but with a cost of `500/-. Aggrieved by the same, the defendants 1 and 3 in the Trial Court have preferred this writ petition.
5. Notice to respondent No.2 herein (defendant No.2) was dispensed with at the request of the petitioners vide order dated 27-07-2023. Respondent No.1, though is being represented by his learned counsel, however, the learned counsel for respondent No.1 has remained absent. -6-
NC: 2023:KHC:38430 WP No. 12401 of 2018 The matter was passed over twice today to enable the learned counsel for respondent No.1 to appear and to make his submission/argument in the matter, however, the learned counsel for respondent No.1 did not appear. Since the petition is of the year 2018 and the Original Suit is of the year 2009, I find no reason to adjourn the matter further, which only contributes further delay in the disposal of the Original Suit as well as this writ petition.
6. Heard the arguments of the learned counsel for the petitioners.
7. Perused the materials placed before this Court including the memorandum of writ petition and the impugned order passed by the Trial Court and other annexures to the writ petition.
8. Challenging the allowing of the interlocutory application - I.A.No.VII filed under Order VI Rule 17 read with Section 151 of the CPC, filed by the plaintiff in a suit for permanent injunction, the defendants No.1 and 3 in the Trial Court have filed this writ petition. -7-
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9. Order VI Rule 17 of the CPC permits the Court to allow either party to alter or amend his pleadings at any stage of the proceedings, in such manner and on such terms as may be just, and all such amendments to be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
10. Learned counsel for the petitioners in his argument submitted that, as on the date of filing of the Original Suit before the Trial Court, the plaintiff was fully aware of the fact that a registered Sale Deed has been executed on the date 24-05-2006 in favour of the defendant No.3 and that the defendants No.1 and 3 have been in possession of the suit schedule property since prior to the said Sale Deed. Despite the same, the plaintiff did not choose to seek any relief of declaration as well the possession of the suit schedule property, however, chose to file the suit only for the relief of permanent injunction.
Learned counsel further submitted that in March 2009, it is the defendants No.1 and 3 who filed their -8- NC: 2023:KHC:38430 WP No. 12401 of 2018 Written Statement bringing to the notice of the Trial Court that they have been in possession of the suit schedule property from the year 1995 itself and have put up a construction duly obtaining the licence from the local Body and carrying on their business in the form of a work shop in the said premises. Under the said circumstance, the plaintiff, sleeping over his right for such a long time, did not choose to file the interlocutory application under Order VI Rule 17 read with Section 151 of the CPC, till the year 2016, as such, the intention of the plaintiff cannot be called as bona fide in filing the application and thus the allowing of the said application by the Trial Court has totally changed the very nature of the suit itself and has caused irreparable injury and prejudice to the interest of the defendants No.1 and 3. However, the Trial Court, without considering these aspects has allowed the application filed by the plaintiff under Order VI Rule 17 read with Section 151 of the CPC, as such, the same deserves to be set aside and the interlocutory application -9- NC: 2023:KHC:38430 WP No. 12401 of 2018 I.A.No.VII filed by the plaintiff in the Trial Court deserves to be rejected.
11. In support of his contention, the learned counsel for the petitioners relied upon two judgments of the Hon'ble Apex Court, one, in the case of REVAJEETU BUILDERS AND DEVELOPERS Vs. NARAYANASWAMY AND SONS AND OTHERS reported in (2009) 10 Supreme Court Cases 84 and another, in the case of Asian Hotels (North) Ltd. Vs. Alok Kumar Lodha and Others reported in 2022 (4) KCCR SN 459 (SC).
12. In REVAJEETU BUILDERS AND DEVELOPERS' case (supra), the Hon'ble Apex Court had an occasion to analyse the scope of Order VI Rule 17 of the CPC and to reiterate the principles governing Order VI Rule 17 of the CPC with respect to the factors to be taken into consideration while dealing with applications for amendments. In paragraph 63 of its judgment the Hon'ble Apex Court was pleased to observe as below:-
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NC: 2023:KHC:38430 WP No. 12401 of 2018 "63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."
In paragraph 64 of the same judgment, the Hon'ble Apex Court was further pleased to observe that, the decision on an application for amendment made under Order VI Rule 17 of the CPC is a very serious judicial
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NC: 2023:KHC:38430 WP No. 12401 of 2018 exercise and the said exercise should never be undertaken in a casual manner. While deciding the applications for amendments, the Hon'ble Apex Court observed that the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide worthless and/or dishonest amendments.
The above said principles are required to be borne in mind while considering the present writ petition.
13. As observed above, the Original Suit filed by the present respondent No.1 as a plaintiff in the Trial Court was for the relief of permanent injunction, restraining the defendants or their agents, servants or whomsoever concerned in any manner or anybody claiming through them from interfering or meddling in whatsoever manner with the suit schedule property which is a Site measuring 35 ft. x 35 ft., located in Yelahanka Hobli of Bangalore North Taluk.
Paragraph 3 of the plaint reads as below:
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NC: 2023:KHC:38430 WP No. 12401 of 2018 " 3. The plaintiff submits that, the first defendant and the second defendant forged some documents styled as General Power of Attorney stated to be executed by the late Mutturayappa S/o.
Puttamarappa, in the year 2006 i.e. on 24-05-2006 executed a Sale Deed in favour of the first defendant's wife for imaginary unbelievable circumstances. The said deeds are registered before the sub registrar office even though the late Muturayappa S/o. Puttamarappa was expired on 31-03-2000."
14. The above pleading in the plaint would go to show that, as on the date of institution of the suit itself, the plaintiff was fully aware of the existence of a General Power of Attorney (GPA) and a registered Sale Deed, both dated 24-05-2006 in favour of the defendant No.3. Still, the plaintiff did not choose to seek the relief of declaration to declare that the said Sale Deed dated 24-05-2006 was not binding upon him.
15. Further, at the earliest point of time, i.e. in their Written Statement shown to have been filed on the date
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NC: 2023:KHC:38430 WP No. 12401 of 2018 09-03-2009, the defendants No.1 and 3, have, apart from reiterating the execution of a General Power of Attorney (GPA) and the Sale Deed dated 24-05-2006 in their favour, have also taken a specific plea that, in the year 1995 itself, they were put in possession of the suit schedule property under a General Power of Attorney (GPA) and thereafter, they also obtained a licence from the jurisdictional Grama Panchayath for putting up a construction for running a work shop and also have put up a construction and have been running an Engineering Works under the name and style of "M/s. Arun Engineering Works" in the suit schedule property since then.
16. In spite of coming to know through the Written Statement filed in the year 2009 itself that the defendants claim that they have been in possession of the suit schedule property from the year 1995 itself and that a registered Sale Deed has been executed in favour of the third defendant on the date 24-05-2006, the plaintiff did not choose to take any action at the earliest including
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NC: 2023:KHC:38430 WP No. 12401 of 2018 seeking permission to amend his pleading suitably. However, as observed above, he came up with an interlocutory application - I.A.No.VII, under Order VI Rule 17 read with Section 151 of the CPC, only on the date 09-11-2016, i.e. more than seven years after the institution of the suit and filing of the Written Statement by the defendants No.1 and 3. Thus, there is not only a delay in filing such an application, but there is inordinate delay running into several years in filing such an application.
17. In the affidavit accompanying the interlocutory application - I.A.No.VII also, which is filed before the Trial Court, copy of which is produced at Annexure C to the writ petition, the plaintiff has stated at paragraph 4 that the alleged registered Sale Deed was brought to his knowledge in the month of February 2009, which further go to show that, even prior to the filing of the suit itself, the plaintiff was aware of the alleged registered Sale Deed dated 24-05-2006 in favour of the defendant No.3 with
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NC: 2023:KHC:38430 WP No. 12401 of 2018 respect to the suit schedule property. Still, the plaintiff did not choose to file the suit, seeking the relief of declaration which he is now intending to seek through the present amendment.
The reason shown by the applicant (plaintiff) before the Trial Court in support of his I.A.No.VII was that, he had explained the factual position and the illegal act of the defendants to his earlier counsel, however, the suit was filed for the relief of permanent injunction only. It was only when he proceeded to prepare his affidavit evidence, he came to know that the relief of declaration was not incorporated in the suit. Immediately, he got the 'no objection' from his previous counsel and explained the factual position of the case to the present counsel and according to his advise, he has filed the present application (I.A.No.VII) before the Trial Court.
The said contention of the plaintiff that he had explained the factual position to his previous counsel and the previous counsel did not advise him properly is only an
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NC: 2023:KHC:38430 WP No. 12401 of 2018 allegation made by the applicant (plaintiff) in his affidavit, however, there is nothing on record to show that, there was any deficiency of service by his previous counsel or that he (plaintiff/applicant) was not properly advised by his previous counsel. However, the fact remains that, at several of the places, the plaintiff has been demonstrating by himself that, even prior to the filing of the suit, he was well aware of the fact that the defendant No.3 has been in actual physical possession of the suit schedule property and is claiming her ownership over the suit schedule property through the alleged registered Sale Deed dated 24-05-2006. Under the said circumstance, the belated application made by the plaintiff under Order VI Rule 17 read with Section 151 of the CPC cannot be termed as an application made with a bona fide intention. On the other hand, the said application, wherein, for the first time, the relief of declaration as well the possession of the suit schedule property have been sought for, would fundamentally change the very nature and the character of the suit itself.
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18. In REVAJEETU BUILDERS AND DEVELOPERS' case (supra), in paragraph 63, which is extracted above and paragraph 64 of the judgment, the Hon'ble Apex Court has observed that the Courts should consider while allowing or rejecting the applications filed under Order VI Rule 17 of the CPC as to whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case and an application lacking bona fide in it or a dishonest amendment need not be allowed.
19. In the instant case, the plaintiff, who, even prior to the institution of the suit, was aware of the fact of the registered Sale Deed dated 24-05-2006 and the possession of the suit schedule property by the defendants No.1 and 3, did not choose to seek the relief of declaration and possession of the suit schedule property, on the other hand, contended that, he has been in possession of the suit schedule property, but later, while filing I.A.No.VII, revealed that the defendants are in possession of the
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NC: 2023:KHC:38430 WP No. 12401 of 2018 property and sought for the relief of declaration and possession. Thus, it shows that he was not honest in approaching the Trial Court for the reliefs of declaration and possession in the form of amendments through the application - I.A.No.VII. Further, the proposed amendments would not only change the very nature of the suit from the one for permanent injunction to the suit for declaration and possession, but also puts the contesting defendants to irreparable loss and would prejudice their interest by the change in the very nature of the suit itself.
20. Further, the contention of the learned counsel for the petitioners that, the cause of action for filing the suit for declaration and possession since had already accrued to the plaintiff prior to the filing of the Original Suit, it would give him a right to agitate the relief of declaration and possession, the relief of which are sought to be incorporated subsequent to the bar of limitation, also cannot be ignored.
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21. However, the Trial Court, without considering all these aspects, but broadly observing that, in order to determine the real question in controversy between the parties, the proposed amendments are required to be permitted, has proceeded to allow the application.
22. Our Hon'ble Apex Court in Asian Hotels case (supra), in a suit for declaration, where the plaintiffs had sought for an amendment of the plaint to seek declaration that mortgages created in respect of entire premises as null and void, but the mortgages were created not only with respect to shops occupied by plaintiffs, but with respect to the entire premises, was pleased to hold that the said aspect of the matter was known to the plaintiffs, however, after lapse of number of years, the plaintiffs cannot be allowed to challenge the mortgages created on entire premises including the shops in question. It further observed that the said amendment would change the nature of the suit itself, as such also, the same cannot be permitted.
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23. In the instant case also, as observed above, the plaintiff was aware of the fact of the existence of the registered Sale Deed dated 24-05-2006 even prior to the filing of the Original Suit by him. However, the plaintiff chose to file the suit only for the relief of permanent injunction. Thereafter, even after filing of the Written Statement by the contesting defendants No.1 and 3 on the date 09-03-2009, the plaintiff was once again given the knowledge about the existence of the registered Sale Deed dated 24-05-2006 and the contention of the defendants that the defendants No.1 and 3 have been in physical possession of the suit schedule property from the year 1995 itself. Despite the same, the plaintiff did not take any remedial steps at the earliest. It is only in the year 2016, after lapse of more than seven years, the plaintiff has come up with I.A.No.VII under Order VI Rule 17 read with Section 151 of the CPC, before the Trial Court, seeking the proposed amendments. The reliefs sought to be incorporated in the form of amendments through the said I.A.No.VII not only changes the very nature of the
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NC: 2023:KHC:38430 WP No. 12401 of 2018 suit but also causes irreparable prejudice to the interest of the defendants and takes away the right that has already accrued to them through their pleading.
24. Since the Trial Court has not analysed these aspects in their proper perspective and proceeded to allow the application (I.A.No.VII) in its cryptic order, I am of the view that the said order deserves interference at the hands of this Court.
Accordingly, I proceed to pass the following:
ORDER [i] The present writ petition stands allowed.
[ii] The order dated 26-02-2018 passed by the learned III Additional Civil Judge, Bengaluru Rural District, Bengaluru, on I.A.No.VII, filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure,
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NC: 2023:KHC:38430 WP No. 12401 of 2018 1908, by the plaintiff, in O.S.No.279/2009, is hereby set aside;
[iii] The interlocutory application -
I.A.No.VII filed by the plaintiff (respondent No.1 herein) under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, in O.S.No.279/2009, before the Trial Court stands rejected as devoid of merit.
Sd/-
JUDGE BMV* List No.: 1 Sl No.: 49