Karnataka High Court
Smt. R. Kanthamma vs Sri.K. Rajagopala Naidu on 10 July, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:23986
WP No. 14260 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 14260 OF 2023 (GM-CPC)
BETWEEN:
1. SMT. R. KANTHAMMA
W/O SRI. D R RAMAKRISHNAPPA
AGED ABOUT 70 YEARS,
2. SRI. R RAMAKRISHNAPPA
S/O LATE SRI. RAMAPPA
AGED ABOUT 81 YEARS,
BOTH ARE AGRICULTURIST,
R/AT DOOLAPALLI VILLAGE,
TAYALURU HOBLI,
MULBAGAL TALUK, KOLAR DISTRICT.
...PETITIONERS
(BY SRI. C.PATTABI RAMAN., ADVOCATE)
Digitally
signed by
AND:
PANKAJA S
Location:
HIGH 1. SRI.K. RAJAGOPALA NAIDU
COURT OF
KARNATAKA S/O LATE SRI. KRISHNAPPA
AGED ABOUT 62 YEARS,
AGRICULTURIST,
R/AT DOOLAPALI VILLAGE,
TAYALURU HOBLI,MULBAGAL TALUK
KOLAR DISTRICT.
2. SRI. R NAREPPA
S/O LATE SRI. KRISHNAPPA
AGED ABOUT 79 YEARS,
AGRICULTURIST,
R/AT DOOLAPALLI VILLAGE,
TAYALUR HOBLI, MULBAGAL TALUK
KOLAR DISTRICT.
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NC: 2023:KHC:23986
WP No. 14260 of 2023
3. SRI. BASHEER AHMED
S/O LATE SRI.PYAREJAN
AGE ABOUT 68 YEARS,
R/AT TAYALUR VILLAGE AND HOBLI,
MULBAGAL TALUK, KOLAR DISTRICT.
...RESPONDENTS
THIS PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN OS
NO 78/2016 ON THE FILE OF THE LEARNED PRL. CIVIL JUDGE AND
JMFC AT MULBAGAL, AND TO QUASH THE IMPUGNED ORDER -
ANNEXURE-A PASSED IN O.S. NO.78/2016 DATED 24.05.2023 ON
I.A. NO.XVII ON THE FILE OF THE LEARNED PRL. CIVIL JUDGE AND
JMFC AT MULBAGAL ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. This petition by the defendants No.1 and 2 in O.S. No.78/2016 on the file of the Prl. Civil Judge & JMFC., Mulbagal (for short, 'Trial Court') is directed against the impugned order dated 24.05.2023, whereby the said application - XVII filed by the respondent - plaintiff under Order VI Rule 17 of CPC for amendment of the plaint was allowed by the Trial Court.
2. Heard the learned counsel for petitioner.
3. The material on record discloses that respondent No.1 -
plaintiff instituted the aforesaid suit against petitioners - defendants No.1 and 2 and respondents No.2 and 3 - defendants No.3 and 4 for declaration, permanent injunction and other reliefs in relation to -3- NC: 2023:KHC:23986 WP No. 14260 of 2023 the suit schedule immovable property. The said suit is being contested by the petitioners - defendants. After commencement of trial, the respondent No.1 - plaintiff filed the instant application seeking amendment of the plaint by making certain corrections to the description of the suit schedule property. The said application having been opposed by the petitioners, the Trial Court proceeded to pass the impugned order allowing the application by holding as under -
ORDERS ON I.A.NO.XVII The plaintiff has filed present I.A.No.XVII under order 6 Rule 17 read with Section 151 of Civil Procedure Code., seeking permission to amend the plaint.
PROPOSED AMENDMENT :
1. To delete the "meg 1-05 Acres nd interest in its place meg 00-14 guntas out of 1-05 Acres" in page no.7 in the 6th line after the Sy.no.27/3 in the schedule of the amended plaint as well as original plaint, and rest to continue.
2. To insert para no.5(A) after para no.5 of the plaint as "It is submitted that the plaintiff is the absolute owner in possession and enjoyment of the landed property in Sy.no.27/3 meg 00-14 guntas out of 1-05 Acres which he got purchased the same through registered sale deed dated 15.07.1988 from defendant no.3, wherein at the time of registered sale deed which was wrongly mentioned the total extent 1-05 Acres, but its actual meg is only 00-14 guntas out of 1-05 Acres, which is situated at within the common boundaries of the plaint suit schedule property, wherein the plaintiff is in possession and enjoyment of the above said 00-14 guntas in Sy.no.27/3 as well as Sy.no.24/1 meg 1-12 Acres from -4- NC: 2023:KHC:23986 WP No. 14260 of 2023 the date of registered sale deed dated 15.07.1988 even to this day", and rest to continue.
2. The plaintiff averred in the affidavit annexed to the application that, when the matter was posted for his evidence he found that, the measurement in suit Sy.no.27/3 measuring 105 acres instead of 0014 guntas which was mentioned as per registered sale deed dated 15.07.1988. At the time of filing of the suit, he unable to give correct boundaries to his counsel in respect of the proposed amendment. It is the suit for declaration of title and permanent injunction, without incorporating the proposed amendment he unable to prove his case. As such it is just and necessary to amend the plaint. If the application is allowed, the defendants suffer no loss and injustice and if same is not allowed, he will be put to irreparable loss and injustice. Hence, the plaintiff prays to allow the present application.
3. On the other hand, the defendant no.1 & 2 has filed objections to the present application, wherein, they have contended that, the plaintiff had filed IA No.14 for amendment of plaint under the plaint schedule to insert Sy.no.27/3 measuring 1.05 acres and after contest the said IA No.14 has been allowed by this Court and also filed amended plaint. On the said amended of plaint schedule, the defendant no.1 & 2 have filed Additional Written Statement. Again the plaintiff has filed IA No.15 for amendment of plaint schedule for deletion of 1 acre 05 guntas and to insert 14 guntas of land and to the said IA No.15, the defendant no.1 & 2 have filed detailed -5- NC: 2023:KHC:23986 WP No. 14260 of 2023 objection and the matter has been posted for to hear on IA No.15 without prosecuting the case and the plaintiff again filed IA No.16 to withdraw the above suit on the same cause of action and to the said application, the defendant no.1 & 2 have filed detailed objection. The matter has been posted for to hear on IA No.16. Again the plaintiff has filed IA No.17 for amendment of plaint schedule and body of the plaint. The relief prayed in IA No.15 & IA No.17 are similar in nature. The defendant no.1 & 2 further contended that, they have taken specific defence in their Written Statement at para no.3 and additional Written Statement that suit is not maintainable in view of wrong measurement and boundaries which are not tallied in the plaint schedule property. The boundaries and measurements and registered sale deed of the plaint schedule property and its boundaries are entirely different. To cure the defect in the plaint and its schedule he has filed IA No.14 to 17. The defendant no.1 & 2 contended that, after commencing of the trial of the suit, either upon the parties have no right to amend the pleadings. The present application filed by the plaintiff at belated stage. Hence, the defendant no.1 & 2 pray to dismiss the application filed by the plaintiff.
4. Heard and perused the materials available on record.
5. The following points arise for my consideration:
1. Whether, the amendment of the plaint sought by the plaintiff under order VI Rule 17 read with Section 151 of CPC., is necessary for the purpose of determining the real questions in controversy between the parties?-6-
NC: 2023:KHC:23986 WP No. 14260 of 2023
2. If so, what order?
6. My answer to the above points are as under:
Point No.1 : In the AFFIRMATIVE.
Point No.2 : As per the final order, For the following :
REASONS
7. POINT NO.1: The plaintiff has filed present suit against the defendants for the relief of declaration of title and permanent injunction with respect of suit schedule property.
During proceedings of the case, the plaintiff has filed present application seeking permission to amend the plaint.
8. The specific contention of the plaintiff is that, when the matter was posted for his evidence he found that, the measurement in suit Sy.no.27/3 measuring 105 acres instead of 0014 guntas which was mentioned as per registered sale deed dated 15.07.1988. At the time of filing of the suit, he unable to give correct boundaries to his counsel in respect of the proposed amendment. It is the suit for declaration of title and permanent injunction, without incorporating the proposed amendment he unable to prove his case. As such it is just and necessary to amend the plaint. Hence, he has filed the present application to amend the plaint. On the other hand, the defendant no.1 & 2 have contended that, the plaintiff had filed IA No.14 for amendment of plaint under the plaint schedule to insert Sy.no.27/3 measuring 1.05 acres and after contest the said IA No.14 has been allowed by this Court and also filed amended plaint. On the said amended of plaint schedule, the defendant no.1 & 2 have filed Additional Written Statement. Again the plaintiff has -7- NC: 2023:KHC:23986 WP No. 14260 of 2023 filed IA No.15 for amendment of plaint schedule for deletion of 1 acre 05 guntas and to insert 14 guntas of land and to the said IA No.15, the defendant no.1 & 2 have filed detailed objection and the matter has been posted for to hear on IA No.15 without prosecuting the case and the plaintiff again filed IA No.16 to withdraw the above suit on the same cause of action and to the said application, the defendant no.1 & 2 have filed detailed objection. The matter has been posted for to hear on IA No.16. Again the plaintiff has filed IA No.17 for amendment of plaint schedule and body of the plaint. The relief prayed in IA No.15 & IA No.17 are similar in nature. The defendant no.1 & 2 further contended that, they have taken specific defence in their Written Statement at para no.3 and additional Written Statement that suit is not maintainable in view of wrong measurement and boundaries which are not tallied in the plaint schedule property. The boundaries and measurements and registered sale deed of the plaint schedule property and its boundaries are entirely different. To cure the defect in the plaint and its schedule he has filed IA No.14 to 17. The defendant no.1 & 2 contended that, after commencing of the trial of the suit, either upon the parties have no right to amend the pleadings. The present application filed by the plaintiff at belated stage.
9. This court has relying the decision reported in (2009) 10 SCC 626 Surender Kumar Sharma Vs. Makhan Singh, wherein the Hon'ble Supreme Court held that :
5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well -8- NC: 2023:KHC:23986 WP No. 14260 of 2023 settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs.
Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amendment.
6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. [See B.K. Narayana PillaiVs. Parameshwaran Pillai]. Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
7. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in -9- NC: 2023:KHC:23986 WP No. 14260 of 2023 holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed.
10. At this stage, it is proper to peruse the Order VI Rule 17 of Civil Procedure Code., The order VI Rule 17 of CPC is reproduced as follows:"
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 controversy between 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.)
11. In view of the above decision and order VI Rule 17 of CPC., the purpose and object of the rules of the pleadings is to decide the real controversy between the parties and not to punish their mistakes, negligence or short comings. 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 Court should not go into correctness of falsity of the case in the amendment while dealing with the application for amendment.
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NC: 2023:KHC:23986 WP No. 14260 of 2023
12. Further, the plaintiff submits that, if the proposed amendment is not permitted he will be put to great hardship and injury. The present suit filed by the plaintiff for the relief of declaration of title and permanent injunction with respect of suit schedule property. In the proposed amendment the plaintiff seeking to add para no.5(a) after para no.5. On perusal of the records, the present application and objection, if this Court has not allowed this application it may lead to multiplicity of the proceedings. Further, it is just and proper to allow the application to determine the real question in controversy between the plaintiff and defendants. Hence, it is just and proper to compensate the defendants by imposing cost on the plaintiff. Therefore, I answer Point No.1 is in the AFFIRMATIVE.
13. POINT NO.2: In view of the findings on Point No.1, I proceed to pass the following:
OR D E R I.A.No.XVII filed by the plaintiff under Order VI Rule 17 read with Section 151 of Civil Procedure Code., is hereby allowed with cost of Rs.1,000/.
Consequently, the plaintiff is permitted to amend the plaint and to furnish amended plaint on the next date of hearing."
4. A perusal of the impugned order will indicate that the same does not suffer from any illegality or infirmity nor can be same be said to cause any prejudice to the petitioner or result in miscarriage
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NC: 2023:KHC:23986 WP No. 14260 of 2023 of justice warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, as held by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423.
5. In the result, the following -
ORDER i. The Petition is disposed of without interfering with the impugned order.
ii. I.A. No.XVII filed by respondent No.1 - plaintiff stands allowed, subject to the condition that the amendment shall not relate back to the date of the suit, but shall be reckoned / considered from the date of the application.
iii. Liberty is reserved to file additional written statement to the amended plaint and take up all defences including the defence of limitation and all rival contentions are kept open to be decided by the Trial Court and no opinion is expressed on the same.
Sd/-
JUDGE HNM List No.: 1 Sl No.: 49