Karnataka High Court
Girish Doddabasappa Tatti vs Doddabasappa Bashetteppa Tatti on 5 August, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 5TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO.80938/2013 (GM-CPC)
BETWEEN:
1. GIRISH DODDABASAPPA TATTI
AGE: 32 YEARS,
OCC: AGRICULTURE
R/O. LAXMESHWAR PET BAN
582 212, TQ: SHIRHATTI,
DIST: GADAG
2. SHAKUNTALA W/O. DODDABASAPPA TATTI
AGE: 66 YEARS,
OCC: HOUSEHOLD WORK,
R/O. LAXMESHWAR PET BAN
582 212, TQ: SHIRHATTI, DIST: GADAG
3. SWAROOPA W/O. CHINNAPPA METAGUD
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O. BAILHONGAL,
DIST: BELGAUM,
NOW R/AT: FLAT NO. 20, C-II
BLOCK, RNI APARTMENT, KMC STAFF QUARTERS,
LIGHT HOUSE
HILL ROAD, MANGALORE.
... PETITIONERS
(BY SRI. M G NAGANURI, ADV.)
:2:
AND
1. DODDABASAPPA BASHETTEPPA TATTI
AGE: 72 YEARS,
OCC: AGRICULTURE
R/O. LAXMESHWAR PET BAN 582212
TQ: SHIRHATTI, DIST: GADAG
2. SANGAMESH DODDABASAPPA TATTI
AGE: 33 YEARS,
OCC: AGRICULTURE
R/O. LAXMESHWAR PET BAN 582212 TQ:
SHIRHATTI,
DIST: GADAG
3. SHIVAPRAKASH MALLESHAPPA MAHANTASHETTAR
AGE: 54 YEARS,
OCC: BUSINESS
R/O. LAXMESHWAR PET BAN 582212 TQ:
SHIRHATTI,
DIST: GADAG
4. DEEPA W/O. MRYTYUNGAJ SINDUR
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SINDUR NURSING HOME VIDYANAGAR,
HUBLI
DIST: DHARWAD
5. SHEELA W/O. BASAVARAJ LAXMESHWAR
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O. C/O. L R BASAVARAJ
H. NO. 28, MRUTYUNJAYA EXTENSION,
:3:
6. VIDYANAGAR, NEAR KUMARVYAS NAGAR, HUBLI
DIST: DHARWAD
7. NANDA W/O. GURULINGAPRASAD
AJJAMPURSHETTAR
AGE: 45 YEARS,
OCC: HOUSEHOLD WORK,
R/O. OPP. SHETTAR GIN COMPOUND, NETWALLI
ROAD, DEVANAGERI
8. CHANDA W/O. VEERAJ AGADI
AGE: 43 YEARS,
OCC: HOUSEHOLD WORK,
R/O. AGADI COMPLEX, NEAR BUS STAND, KOPPAL.
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED:14/06/2013 PASSED BY
THE ADDITIONAL SENIOR CIVIL JUDGE GADAG SITTING
AT LAXMESHWAR IN OS.NO.280/2002 ON I.A.NO.17,
PRODUCED AT ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Application filed by third defendant under Order 6 Rule 7 of CPC for amendment of written statement which came to be allowed by Sr. Civil Judge, Gadag, in OS :4: No.280/2002 dated 14/6/2013- Annexure-E is sought for being quashed in these proceedings by the plaintiffs.
2. I have heard the arguments of Sri.M.G.Naganuri, learned counsel appearing for the petitioners, who are plaintiffs before the trial Court. Defendant No.3 filed an application under Order 6 Rule 17 of CPC seeking amendment of the written statement raising several alternate pleas, when the matter was at the stage of further evidence of plaintiffs, said application came to be opposed by plaintiff No.1, by filing a detailed statement of objections. Trial Court on appreciation of the rival contentions, allowed the said application. It has been held by the trial Court that plaintiffs' family has possessed considerable properties both movable and immmovable properties as furnished by the third defendant along with the application in question and to adjudicate the matter completely, that too in a suit for partition, it is necessary to include all the properties said to be belonging to joint family and as such it allowed the application. Trial Court :5: has also recorded a finding that despite due diligence defendant No.3 could not file said application before the commencement of Trial.
3. Sri. M.G.Naganuri, learned counsel appearing for the plaintiffs would vehemently contend that trial Court ought not to have allowed the application for the reason that there is a foundational error, namely, defendant No.3 has not pleaded in the affidavit supporting the application that despite due diligence, he could not have raised such plea before commencement of trial and in view of proviso to Order 6 Rule 17 of CPC prohibiting amendment of the pleadings subsequent to trail having been commenced, said application ought not to have been allowed by trial Court that too recording a finding that there was due diligence on the part of 3rd defendant, which is an erroneous conclusion not based on material particulars. In support of his submission he has relied upon the judgment of the Apex Court in the case of Vidyabai & :6: Others Vs Padmalatha & another reported (2009) 2 SCC 409
3. All amendments ought to be allowed which satisfies twin conditions:-
1) Not working injustice to the other side
2) Of being necessary for the purpose of determining real question in controversy between the parties.
Further amendment of a pleading sought for requires to be refused when the other party cannot be placed in the same position, as if the pleading had been originally correct and the amendment would cause him any injury beyond compensation. Setting up of a fresh claim on the basis of cause of action, which is barred by limitation is also a ground to reject the amendment. Under Order 6 Rule 17 of CPC, Court has discretion to permit alteration or amendment of the pleadings, if such amendment is necessary for determination of the real question in controversy. It has been held by the Apex :7: Court in AIR 2006 2832 that a wide discretion is conferred on the Court to allow amendment of the pleadings in such manner on such terms as it may appear to be just and proper and Courts should be liberal. In the said case, there was delay of 3 years in filing an application for amendment of written statement and as such same was condoned and amendment came to be allowed. Catena of decisions of the Apex Court would indicate that amendment of plaint is different from amendment of written statement and as such the defendant is entitled to raise even inconsistent plea or inconsistent defence all though plaintiffs cannot raise such pleas in the plaint. Apex Court in the case of Andhra Bank Vs. ABN Amro Bank N.V. and Ors reported in AIR 2007 SC 2511 has held that delay in seeking amendment would not be a ground to reject the prayer or refuse the amendment. It has been held as under:-
"5. We have heard XXX amendment of the written statement. So far as the second ground :8: is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit".
4. In the case of Baldev Singh & Ors. Etc.Vs. Manohar Singh & Anr. Etc. reported in AIR 2006 SC 2832, Apex Court while examining the word "commencement of trial" as used in proviso to Order 6 Rule 17 has held that it must understood in limited sense of final hearing of the suit, examination of witness, filing of documents and addressing of arguments. It has been held as under:-
"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It :9: appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings".
5. In Usha Balashaheb Swami & Ors Vs. Kiran Appaso Swami & Ors, reported in AIR 2007 SC 1663, Apex Court has held that amendment of written statement by taking inconsistent plea is permissible. : 10 :
"18. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable."
6. Keeping the contours laid down by the Apex Court in the above judgments in mind, when facts on hand are examined, it would indicate that defendant No.3 has not specifically pleaded in the affidavit supporting application : 11 : i.e. in actual words that in spite of due diligence, amendment could not be sought at earlier point of time. However, the fact remains that it is specifically pleaded by the defendants that all the properties belonging to the family had not been included in the plaint and as such, a plea is now sought to be put forward by the third defendant by taking a specific plea in this regard in the proposed amendment. This aspect swayed the mind of trail Court to allow the application for amendment of written statement and as such mere non use of the words "due diligence" by the defendant would not ipso facto give a handle to the plaintiff to contend that in the absence of such specific pleading in the application amendment should not be allowed. In the Vidyabai case referred to by the learned counsel appearing for petitioner, it has been held that order of trial judge indicated that respondent had not been able to fulfill the condition of exhibiting due diligence before the trial Court. Hence, trial Court was justified in holding that judgement relied upon by the : 12 : learned counsel for the plaintiff would not come to their assistance. However, in the instant case, as already noticed herein above, that in order to do substantial justice between the parties and to permit the defendant to raise even a inconsistent plea application for amendment of written statement has been allowed and to compensate the plaintiff for raising such a plea belatedly, cost has been awarded and as such no error can be found in the impugned order passed by the trial Court. Even otherwise, it is noticed that evidence of the plaintiff itself is yet to be concluded in the instant case and as such no harm, prejudice or injustice would be caused to the plaintiff if the proposed amendment of written statement is allowed which is impugned in this petition. Hence, no grounds made out. Writ Petition stands dismissed. Ordered accordingly.
SD/-
JUDGE Vmb