Karnataka High Court
Iranna S/O Desai Allolli vs Smt.Parawwa Since Dead By Lrs on 7 September, 2018
Author: Chief Justice
Bench: Dinesh Maheshwari
1
WP No.200704/2017 R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF SEPTEMBER, 2018
BEFORE
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
WRIT PETITION NO.200704 OF 2017 (GM-CPC)
BETWEEN:
IRANNA
S/O DESAI ALLOLLI
AGE: 42 YEARS,
OCC: AGRICULTURE
R/O KOTYAL VILLAGE
TQ & DIST: VIJAYAPUR
... PETITIONER
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
1. SMT.PARAWWA
SINCE DEAD BY LRS.,
A) GANGAWWA
W/O CHINDANAND PATIL
AGE: 47 YEARS
OCC: HOUSEHOLD
R/O JATTI HOUSE
OPP: JAIBHAVANI NURSING SCHOOL
GYANGBAWDI,
VIJAYAPUR-586103.
B) NEELAWWA
W/O APPASAHEB NYAMAGOUDA
2
WP No.200704/2017
AGE: 45 YEARS
OPP: HOUSEHOLD
R/O JATTI HOUSE
OPP: JAIBHAVANI NURSING SCHOOL
GYANGBAWDI,
VIJAYAPUR-586103.
2. MAHADEVI
W/O BASAVARAJ INGALE
AGE: 47 YEARS
OCC: HOUSEHOLD WORK
R/O MUDHOL ROAD
JAMKHANDI,
DIST: BAGALKOT-587102.
... RESPONDENTS
(BY SRI D. P. AMBEKAR, ADVOCATE FOR R1 (A) & R1 (B);
R2 SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER ON
I.A. No.XXII DATED 19.01.2017 PASSED BY THE II ADDL. SENIOR
CIVILJUDGE AT VIJAYAPUR IN O.S. No.132 OF 2010, WHICH IS
PRODUCED AT ANNEXURE-F AND ALLOW THE AMENDMENT
APPLICATION BY ALLOWING THE WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
3
WP No.200704/2017
ORDER
By way of this writ petition, the petitioner, who has filed a suit for specific performance (O.S. No. 132 of 2010 in the Court of II Addl. Senior Civil Judge, Vijayapura), has questioned the order dated 19.01.2017, as passed by the Trial Court on I.A. No. XXII in the said suit, rejecting his prayer for amendment of the plaint.
Shorn of unnecessary details, the relevant background aspects of the matter are that the suit for specific performance filed by the plaintiff-petitioner is based on a registered agreement for sale in relation to the identified property mentioned in the plaint. The relevant terms and conditions of the agreement including those relating to the sale consideration have been stated in the plaint but then, the date of the agreement came to be mentioned as "17.5.2010" although the correct date of this agreement had been "12.05.2010."
From the material placed on record, as also the observations made in the order impugned, it appears that even in the evidence, the plaintiff-petitioner stated the date of the agreement as "12.05.2010," but the averments in the plaint 4 WP No.200704/2017 continued to carry the date as "17.5.2010." After evidence of the parties, the aforesaid application seeking leave to amend (I.A. No. XXII) was filed on behalf of the plaintiff-petitioner with the submissions that the date of the agreement came to be wrongly mentioned as "17.5.2010" in place of "12.05.2010" for typographical mistake; and such a mistake came to the notice only when the counsel for the plaintiff-petitioner was preparing the matter for final arguments.
This prayer of the plaintiff-petitioner for leave to amend the plaint has been rejected by the Trial Court in the impugned order dated 19.01.2017 with the observation that the plaintiff- petitioner had several occasions to correct the mistake, but he was not at all diligent in filing an application for amendment at the earliest available opportunity. While relying on the proviso to Rule 17 of Order VI of the Code of Civil Procedure, the Trial Court has observed as under:
"...Absolutely there is no dispute about the proposition of law laid down in the said decision. It is also true that courts have to be liberal in accepting the amendment of pleadings and rejection is an exception. If such application is made after commencement of trial, in that event the court has arrive at a conclusion that inspite of due diligence party could not raised matter before 5 WP No.200704/2017 commencement of trial. In the case on hand, for the reasons assigned supra, Plaintiff had so many occasions to notice the said mistake. Inspite of mentioning correct date of agreement of sale in his examination-in-chief affidavit, he has not at all ventured to file application for amendment of plaint at that time only. Therefore, it is clear that the Plaintiff is not diligent in not filing application at the earliest possible opportunity. ..."
Learned counsel for the petitioner has strenuously argued that the amendment sought for was only for correction of a typographical mistake and the petitioner ought to have been granted the leave to amend so as to avoid any ambiguity and for effectual determination of real questions in controversy. Learned counsel would argue that such a bona fide prayer for amendment has been declined on a hyper-technical view of the matter and the impugned order, if allowed to stand, would only result in avoidable complications.
Per contra, learned counsel for the respondent No.1(a) and (b) has duly supported the order impugned and submitted that the Trial Court has rightly rejected the prayer for amendment that was made only after the evidence of the parties and only in order to fill up the lacunae at the fag end of the matter. Learned counsel would submit that the proviso to 6 WP No.200704/2017 Rule 17 of Order VI of Code of Civil Procedure directly operates against the prayer of the petitioner and, therefore, the impugned order calls for no interference.
Having given thoughtful consideration to the rival contentions and having examined the material placed on record, this Court is clearly of the view that the impugned order cannot be sustained; and the application seeking leave to amend as filed by the plaintiff-petitioner deserves to be allowed.
For the contentions urged and looking to the observations in the impugned order, appropriate it would be to take note of the provisions contained in Order VI Rule 17 of Code of Civil Procedure, which read as under:-
"17. Amendment of Pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."7 WP No.200704/2017
The aforesaid provisions of Order VI Rule 17 of Code of Civil Procedure are to ensure that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings; and all such amendments, which may be necessary for the purpose of determining the real questions in controversy between the parties, deserve to be allowed. In terms of the proviso to Rule 17, ordinarily, no such application seeking leave to amend is to be allowed after commencement of the trial, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The said proviso, by its very nature, is intended to operate against the proposition of a party raising a new or additional or alternative plea after commencement of the trial. This Court is clearly of the view that the amendment of the present nature, which is essentially of clarification and for correction of a bona fide mistake, cannot be considered prohibited in terms of the proviso to Rule 17 ibid., irrespective of the stage it is prayed for.
The matter could be examined from another angle too. Even if the said proviso to Rule 17 of Order VI of the Code of 8 WP No.200704/2017 Civil Procedure is considered applicable to all the prayers for amendment after commencement of trial, the question of 'due diligence' is yet to be examined from a realistic point of view. Merely because a particular mistake regarding the date of document has continued during the entire process of trial, by itself, does not necessarily lead to the conclusion of want of due diligence on the part of the party concerned. The question of due diligence would obviously depend on the nature of mistake, its magnitude and even implication. The concept of due diligence cannot be overstretched to assume that a mistake, if not rectified at the earliest point of time, would always be due to want of due diligence.
A typographical error is not an occurrence unknown to the legal proceedings. In fact, a typographical error could occur at any place and despite due diligence; and if at all an illustration is required in this regard, a look at the impugned order itself would suffice. It is noticed that the impugned order was passed by the Trial Court on 'I.A. No. XXII'; and though the operative portion of the order states that 'I.A. No. XXII' is dismissed, but at the beginning of this order (at internal page 9 WP No.200704/2017 No. 2 - paper-book page No.48), the particulars of the application are mentioned as 'I.A. No. XVII' ! However, it goes without saying that this Court would be looking at the substance of the matter rather than such a typographical error.
It is noticed from the material placed on record as also the observations made in the order impugned that the suit in question is filed seeking specific performance of agreement for sale in respect of the property specified in paragraph No.2 of the plaint. The other relevant facts, including the measurement of the land in question, the amount of sale consideration, the alleged payment of earnest money etc. are also stated with requisite particulars in the plaint, particularly in paragraph No.4 thereof. It is also stated that the said agreement was registered after payment of registration fees.
It is also noticed that the agreement in question has been placed on record and in that regard, the plaintiff-petitioner has been duly cross-examined. A look at the said document makes out that it was executed on 12.05.2010, but the proceedings for registration in the office of the Sub-registrar, Bijapura took place on 17.05.2010. It appears that the said date of proceedings 10 WP No.200704/2017 before the Sub-registrar came to be mentioned in the plaint averments as the date of execution of the document and not the date stated at the end of the recitals in the document i.e., 12.05.2010.
The question is as to whether such averments in the plaint could be explained and corrected by the plaintiff? The answer, in the opinion of this Court, could only be in the affirmative.
In the present case, it is clear that the parties have gone to trial while being conscious of the real questions in controversy and their respective cases. The date of the document, as noticed above, came to be wrongly mentioned in the plaint as "17.5.2010" though it ought to have been mentioned as "12.05.2010". The fact that the date of execution of the document was indeed 12.05.2010 is otherwise apparent on the face of the record and so had been the evidence of the parties. The date "17.5.2010", in fact, was the date of proceedings before the Sub-registrar. That being the position, the Trial Court ought to have allowed the amendment as prayed 11 WP No.200704/2017 for, so as to determine the real questions in controversy, rather than proceeding in a rather mechanical manner.
Before concluding, this Court is constrained to observe that the Trial Court dealing with a civil suit is expected to remain conscious that the rules of procedure are intended to sub-serve the cause of justice; and such rules are not for the punishment of the parties for every mistake committed by them. Appropriate it would be for the Trial Court to take note of the observations of the Supreme Court in the case of Sangram Singh Vs. Election Tribunal, Kotah and Another : AIR 1955 SC 425 as follows:
"16. Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it."
For what has been discussed hereinabove, this petition is required to be and is allowed; and the impugned order is set aside. The plaintiff-petitioner shall be allowed to carry out necessary amendment within fifteen days from the date of 12 WP No.200704/2017 receipt of certified copy of this order. Of course, in the interest of justice, the defendants-respondents are extended liberty to file additional written statement in view of such amendment, if so chosen and if so advised, within fifteen days from the date of carrying out the amendment by the plaintiff/petitioner.
No costs.
Sd/-
CHIEF JUSTICE LG/pjk