Karnataka High Court
Xavier Ferrao S/O Anthony Ferrao And ... vs Theresa Ferrao W/O Gaberiel Urban ... on 20 July, 2007
Equivalent citations: AIR 2007 (NOC) 2436 (KAR.) = 2007 (5) AIR KAR R 523, 2007 (5) AIR KAR R 523 2007 A I H C 3707, 2007 A I H C 3707, 2007 A I H C 3707 2007 (5) AIR KAR R 523, 2007 (5) AIR KAR R 523
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT V. Jagannathan, J.
Page 1698
1. The plaintiffs before the trial Court are the appellants herein and they are aggrieved by the dismissal of the suit filed by them by the trial Court and the said judgment and decree of the trial Court also being affirmed by the Lower Appellate Court. The suit was initially filed by the appellants seeking the relief of permanent injunction against the respondent herein in respect of plaint 'A' schedule property comprising survey No. 501/8B1 measuring Order 14 acres.
2. The facts required for the purpose of this appeal, briefly stated are to the effect the appellants herein filed a suit in O.S. No. 8/1985, for permanent injunction against the defendant/ respondent herein by taking up the stand that the appellants are the absolute owners in possession of the suit property having acquired the same under the registered sale deed dated 19.1.1984. Later on defendant tried to interfere with the peaceful possession of the appellants' suit property and therefore, the appellants had to file the suit as aforementioned. The respondent/defendant contested the said matter by derrying the case of the appellants and also took up his stand that the boundaries mentioned in the plaint schedule property are not correct and prayed for dismissal of the said suit. The learned trial Judge has framed the fallowing issues:
1. Whether the plaintiffs prove that the 1st plaintiff was in lawful possession of the plaint 'A' schedule property by the date of suit?
2. Whether the plaintiffs prove the alleged interference?
3. Whether the plaintiffs are entitled to a permanent injunction as prayed for?
4. What order or decree?
3. Based on the evidence let in by the parties, the trial Court came to the conclusion that the appellants herein have failed to prove the interference by the respondent/defendant into the appellants' property and also found that the boundaries mentioned in the plaint not tallying with the boundaries mentioned in the document Ex.P1. Following the said reasoning, the trial Page 1699 Court dismissed the suit of the plaintiffs giving raise to the appeal being filled by them in R.A.No. 56/1989 before the learned Principal Civil Judge, (Sr.Dn.), Udupi, and during the pendency of the said appeal, the appellants also filed application i.e., I.A.No. 4 seeking certain amendments to the plaint in respect of the prayer is concerned and the said application filed under Order 6 Rule 17 read with Sections 151 and 107 of CPC was contested by the respondent herein and the tower Appellate Court framed the following points for consideration.
1. Whether plaintiffs/appellants proved that 1st Plaintiff/1st appellant was in lawful possession and enjoyment of the plaint 'A' schedule property on the date of suit?
2. Whether plaintiffs further proved the alleged interference by the respondent/defendant?
3. Whether proposed amendment is necessary to decide the matter in dispute effectually and completely?
4. Whether there are any reasons to interfere with the findings recorded by the learned Principal Civil Judge (Jr.Dn.), Udupi, on any of the issues?
5. What order?
4. I have heard the learned Counsel for the parties and perused the material on record.
5. The learned Counsel for the appellants Shri Sampat Anand Shetty submitted that as the question that is required to be answered by this Court is concerning the dismissal of I.A.No. 4 filed by the appellants herein before the Lower Appellate Court, it is not necessary for the Court to go into the merits of the case and referring to the findings of the lower Appellate Court while dismissing the application filed for amendment, it is submitted by the appellants' Counsel that the lower Appellate Court committed serious error in dismissing the said application and it went into the merits of the case of the parties and more over as the very case of the appellants was that they were in possession of the suit property and had sought for the relief of permanent injunction against the respondent defendant, the lower Appellate Court ought to have allowed the application filed for amendment instead of driving the appellants to file another suit of seeking possession of the plaint 'A' schedule property. In this connection the learned Counsel invited my attention to the position of this Court in the case of Sampath Kumar v. Ayyakannu and Anr. to contend that when the appellant is not debarred from instituting a fresh suit seeking relief of declaration of title and recovery of possession on the same basic facts of the pending suits, such an application filed for amendment ought to have been allowed in order to avoid multiplicity of suits. He also place reliance Page 1700 on the decision of the Apex Court in the case of Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. to submit that the Courts should allow all amendments that may be necessary for determining the real question in controversy between the parties and the Court should not proceed on merits at the stags of amendment. Hence, he prayed for remand of the matter to the trial Court by allowing the application filed for amendment as per I.A.No. 4.
6. On the other band, the learned Counsel Shri S.K. Acharya far the respondent/defendant submitted that the trial Court had given its finding on the merits of the case by dismissing the suit of the appellants and thereafterwards, the lower Appellate Court also concurred with the finding of the trial Court and therefore, the question of allowing the amendment application does not arise. Unless, it is shown that the view taken by the trial Court or for that matter by the Appellate Court suffers from any error, the question of allowing the amendment application will not arise. In this regard, he place reliance on a decision reported in AIR 1968 MYSORE 269 in the case of Thimmayya Ajirl v. Marudevi and Ors.
7. Having considered the submission made as above and ruling cited, and also after going through the judgment of the lower Appellate Court and the reasoning given by it while rejecting I.A.No. 4 filed for amendment by the appellants, the Court is now required to answer the questions raised for consideration.
8. The other question that requires to be considered at this stage of the matter is "whether the lower Appellate Court was justified in rejecting the application filed by the appellants herein for amendment of the plaint in so far as prayer to concerned".
9. No doubt, the appellants had filed the suit praying for permanent injunction restraining the defendant from interfering with the appellants' peaceful possession of the suit 'A' schedule property. The trial Court in the course of examining the merits of the case, came to the conclusion that there was some discrepancy in the boundaries at mentioned in the plaint schedule when compared to the document Ex.P3- sale deed. Consequently the trial Court dismissed the suit. It was at the stage of pendency of the appeal, that the appellants herein filed I.A.No. 4 praying for amendment to the plaint end the amendment sought was to replace paragraph No. III (6) by the following:
The plaintiffs are entitled to the relief of possession of the plaint 'A' schedule properties with means profits at the rate and from the date which the Court may determine at the defendant has been claiming to have come into possession on 22.8.1984 (Twenty Second Page 1701 August Nineteen Hundred Eighty Four) and 8.10.1984 (Eighth October nineteen Hundred Eighty Four) and subsequently, in Shirva village of Udupi Taluk, where the Plaint 'A' schedule properties are situated within the jurisdiction of this Court.
Likewise, in paragraph V, relief sought for was sought to be amended as under:
Directing the defendant, to surrender possession of the 'A' schedule properties to the plaintiffs with means profits at the rate and from the date to be determined by the Court under Order 20 Rule 12(ba) of the Code of Civil Procedure, 1908.
10. The learned Judge of the Lower Appellate Court dismissed the said application mainly on the ground that the appellants herein had claimed the relief of permanent injunction and by seeking amendment as mentioned above, the appellants were trying to alter the very nature of the suit itself and that too after fifteen years, the appellants have come up with the application 4 to amend the plaint and therefore, the lower Appellate Court refused to allow the amendment application.
11. In my opinion, although the appellants had sought for amendment of the prayer in the plaint as mentioned above, it is the specific case of the appellants that they are in possession and enjoyment of the suit 'A' schedule property and they had sought permanent injunction against the respondent-plaintiff. When such being the nature of the suit filed by the appellants, the lower Appellate Court could have allowed the said application, and ought to have permitted the appellants to amend the plaint by bringing the above modification. The lower Appellate Court has observed that the appellants can very well file a new suit if at all they are seeking possession of the suit property from the respondent-defendant.
12. The Apex Court in the case of Sampath Kumar v. Ayyakannu and Anr. has observed that Order 6 Rule 17 of CPC confers jurisdiction on the Court to allow either party to alter for amend hit pleadings at any stage of proceedings and the amendment could not be refused on the ground of delay and in the course of the said decision, the Apex Court went on to observe at paragraph 11 thus:
In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred front instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits, it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. Page 1702 The plaintiff has alleged the cause of action of the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession, then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that as far the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed
13. In another decision, in the case of Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. , the Apex Court has observed in paragraph 16 (sic) thus:
The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the partial provided it does not cause injustice or prejudice to other side.
It is also further observed in paragraph-18 thus:
In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fall to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit
14. It is the observation of the Apex Court further in this case that it is settled by a catena of decisions of the Apex Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. The above propositions of law laid down by the Apex Court in my view are applicable to the case on hand and the learned Judge of the lower Appellate Court therefore, could not have refused to permit the appellants to bring in the amendment as sought by them. As far as the decision cited by the learned Page 1703 Counsel for the respondent is concerned, I am of the view that the facts and circumstances of that case are quite different from the one with which we are concerned now and particularly in view of the aforesaid decisions of the Apex Court, the finding of the lower Appellate Court in dismissing the application filed for amendment cannot be sustained in law.
15. As I have come to the conclusion that the lower Appellate Court ought to have allowed the application as sought for by the appellants herein, I refrain from making any further observations so far as merits of the case is concerned and hence, I am of the view that that is a matter which has to be remanded to the trial Court for permitting the appellants herein to amend the plaint as sought for by them in their amendment application and the trial Court shall thereafterwards can dispose of the matter in accordance with law. However, the prayer for declaration of title and recovery of possession shall have to be deemed to have been made as on the date on which the application for amendment was made. In the result, I pass the following order:
ORDER The appeal is allowed. The judgments of both Court below are set-aside. The appellants are permitted to incorporate necessary amendment to the original plaint as sought for by them and the respondent-defendant is also at liberty to file additional written statement, if any, and since the application for amendment is now being allowed, the appellants shall pay a cost of Rs. 2,000/- to the respondent-defendant. The prayer now sought to be made by way of amendment with regard to recovery of possession and title is concerned, shall be deemed to have made on the date on which the application for amendment has been filed. The trial Court shall dispose of the matter within a period of six months from the date of receipt of a copy this order, No order as to costs.