Karnataka High Court
Smt Muniyamma vs S Chandrakar on 13 March, 2008
Equivalent citations: AIR 2008 (NOC) 2492 (KAR.) = 2008 (4) AIR KAR R 360, 2008 (4) AIR KANT HCR 360, 2008 A I H C 2981, (2009) 1 CIVLJ 559, (2008) 4 ICC 635
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HTGH C6'U'T or i<A"N'T"KA _
DATED THIS THE 137" 05$; OF 2:368-_ _
BEFOZRE 2 i
THE HON'BLE MR. JUS11CE_v'A...N.VEvNUGOF'§L£§v§3QV\iDA H
warr PETITION No fi.k35s4[2oo6
1. Srnt. iviur.i--yVarfiifia,'" Vi'af;c_ ?$'*.:a§"ah",°
Aged .:~~bo:T;t41'50 *-,{ea{r:=...,..' - ' '
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vS__/Ho late?' Pa:paie.h; _ *
Aged .a bauti'j3% y.--.a'rs,
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Boih ére fiat 'Pi ..
6*" crass; Church rand,
old Mad§»va'|a. Main~._roa'd,
,,4_Mé.d!\.ra!a Fest,
~ Banga!ozre -- 56~8--«G68.
Petitioners
1' VA (4,? : ::G. Shankar, Adv.)
.l\~~I\ll"'i~ -
I
V' . S. Chancirakar, Sic *te K. Sheshahanda,
Aged about 52 years, r/at No.229,
6*" cross, Old Madivaia Road,
Bangalore-560 068.
P3
"7'.__b'.S';';36fS§if20fi2, pending on the fiie Df
3. Sri. Chandrashekar,
Aged about 42 years,
Beth are sens Df late A. Nara3ié:ne',t:'pa,"~«. -. _
And are residing behind Suprabha'ti1e'H6te'!; V'
Hesur road, Madtvaia Past, 5'-%a:i£_va'i--a, "
Bangalore-560 068.
.. .' Reepohidents
Sr! : Prakash
Sri. H.C. Dharmen_dr'ei'fD'r
TH_.'£S"WRIT~_ Pemnoh .j_iS_F1§LED UNDER ARTICLES
225 AND..227__QF. 'i«'HiE_VCCi)_NSfiTU*i"I'(')i'i DF iiiiDiA PRA'v"1'NG
TO SET Af5ID'E~-THE§j*I.M?U:GNED.-- ORDER DATED 19.1.2006
IN OS.'i'iO".3't'iy69/2VGO2'--BYTHEE HON'BLE cm cxvn. COURT
({:cH--'e). ::«~3A!\.".Z-§;£t!.C'EtE' \.'ELi_E' ;s'-.m~.IE>r.I.Ii=.E-I=
'This. DetitiDn..'i'eDiihih:j DD far Dreiiminafir hearing 3
group, the Court n1*a--tie the following:
it M ORDER
Petitioners, who are defendant i'~.Iee.3 end 4 in
2.I..l. ..
dditifi ai City' Civii
Ju_dge,5"'BangaIore, have questioned in this writ petition the
it Drtier dated 19.1.2006, whereby I.A.4 fiied by them for
Diamendment of the written statement was rejected. 1"
tespondent herein, is the plaintiff who has instituted the
sale suit. egein-t_the p_t!tir_m.ers and the 2"" and 3"'
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féfifiéfidfifits herein.
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2. Heard the learned counsel appeor:lng_*:V.:fo'r'
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3. Learned counsel for---the petitloners"flied_,.,ta
producing a copy of the order-dated 22;7t2tlo7Vfipassed by
Bar councii ir. ocehero;7s;2oost'lt:,e;,lam the complaint
lodged l:)yV§'t|}e1::2_~'7'_'i hereVin',""against his previous
advocate 'n.an'ie7notjmentioned). Since the order
produced ai'o"ng.y.§iith'«the..rr:erno has a direct bearing for the
decision,matkintfln..tfh!,s'gllvrit petition, after hearing the
teerned coumelvappearing for the 15' respondent, the same
4,t:'i.Erl G.Shankar, learned counsel appearing for the petitioners contended that, on account of fraud and V' rnisrepresentation played on the pe....!oner.. by their previous advocate, amendment of the wri'ten 'tatennent became necessary. Learned counsel contended that, fraud and justice do not dwell together and in View of the K» /* findings by the competent forum against regard to his fraudulent acts-:on»..th¢ collusion with the plaintiff, if so called written s.atemen't~~..f!led.V' 'v' mated. 'earned .~counse%*~co'ntended.that.irijview of the record of the case,tofi 'of. justice and not to perpetuate,.fch.g the petitioners on account"'of_«.t,hAe- advocate 'x', the writ petitionT'naVas;"ia:e. a'lioaiVed a:y....r;:§'rantlng the prayer in I.A.4, flied intheVjtria-i.,,:Cau'rt,:-- i ., x 54',"Per'co'ntlra,V§ri Prakash T.Hebbar, learned counsel . _ '"*a:'Pl5$afin,g fortheV1°' respondent/plaintiff contended that, t;efo're"t%h'eet~riai Cotirt, no material was produced to show he pctitioners
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'---the earlier advocate had commltted any " Q' i-,I-
AA _ actof collusion with the plaintiff and hence, the trial Court 'w.,_1.j'i;vas Justified in passing the impugned order. Learned counsel further contended that the admissions made in the written statement filed in the trial Court, cannot be taken away by the amendment. Learned counsel further \/ /r.
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contended that, the prayer in I.A.4, is the written statement, and suche. prayer'Vis'not.Vpe_rmiiesihie2 in View of the decision of:"14thi.9-ii"Cooit_,A'io_ oi" it REVANSIDDAPPA ANoii toI,HeRs itVS,.'>v-.$i.i:)'L":iARAMAP?it, reported in 2£_JQ_5(2) "Z51. "'~t..ee.rhe-d counsei contended that the t'riei"£rioAi=t .'hes.,correctiy exercised the jurisdiction_vested"i'n"itZ':en'd,..the iinpifiioned order does not call for .in'teri:e'rence:i_ni'the «writ jorisdiction of this Court. 6; r.iirVi§ii contentions and the record, thepoiints the't'j_ijoris=e-.._:ifor~e11y consideration are:
_ _ (5) Wtaetirer"'the petitionershave established that ' -A there was firaud and coiiarsiorr by their previous . A. advocate in the matter of filing the written statement before the triai Court?
it :""'_(o)'7.j"Whether the trial Court has failed to exercise
-. ' the jurisdiction vested in it?
REGARDING POIN {at}:-
'i. it is not in dispute that, the petitioners had engaged advocate 'x' in the triai Court to appear on their behalf and that he had prepared the written statement and has filed it on 24.9.2002. It was stated by the petitioners, L X in I.A.4 that, after filing the written 4_ advocate 'x' did not co-operatewith '4c'o'i1djuctin'Agx'; the suit and they became susplcio.os;fV o'bta_'ine_ci papers from the said ald3r:oz;ate,A"'ehgaged presehtl' go oh with the r"r1attéi§i\t'/i.t.t:ase that the present advocate after*g_oing:1'throiigh:'the them about the defenee pre~;&'iotis:hiritten statement and On hE!af.lI_i(;i,::they:_ note that their previous advocate "-t.h'e"plaint allegations by colluding with the-,'_ iipivaiiitifftl = stated that their previous .V 'V V Mt: : .4 LI... .....:u-... advocate, obtained ...e.r sugnatures on me wuue.
Vt.' j«r«state'Tnrienti;'-~.without expiaining the contents thereof and ._ previousadvocate had misrepresented to them that he is defending their interest. It was stated ** thatV''S:mt.Muniyamma, the 3"' defendant does not know 'any other language than Telugu and Srl Venkataswarny, 'T the 4"' defendant, was a school drop oz... and he had 'tadied in Telugu iaruguage. with the said "ar:i<q";round, i.A.4 was filed, which was conteste by the plaintiffs.
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1' no Karnataka State Bar Council, againstrt 'their'--..e_revAi.oi'ss ' advocate 'x', alleging thpatmhe Alias' drafted.' statement to the suit, discl'osi'ng'v':totithem, the defense taken, he '3;"1é"t5 °f the written statement committed the rofessionai had referred the compiairur.tcifi_"_'it.s. = 111. Notice of t..e advocate "it", who after appearl:n'g,V statement of objections denying the..alleg4at5ovnsVVn1acieaoainst him in the complaint and also A' 'g§ntendi"ng that""'h'e had not committed any professional on the basis of the complaint and the A foii'ow'ing charges on 22.12.2666 agairrt advocate it :
"1. whether the complainant proves that the respondent collected with counsel shri.
Chandrakar appearing for plaintiffs in the suit in OS 3569,'2GG2 for extraneous consideration?
2. Whether the compiainant proves that the respondent has committed professional misconduct? \ ' */
3. Whether the respondent proveethet iie drafted written statement, as "pejr the ' instructions given to him by i,:he'.::,ornniaiinah.i;?.vV_ 7 '.7-
9. The said authorityV_h:aje.:_¢onduoted.:t_heAVvenquiry, in which, the complaint.:ige=;«_ti%ie; g;t,itioner ..erein has were marked has also examined one ygitneeeeae 'it' who was the resp'ond_e'nAtv't'herehin.V-'got himself examined as RW.1 and the docurnentsi. him, were marked as Exs.R4 to ;it8.e..After-hearing" the arguments, the said authority has i.__""'Ae«--~per the Bar Council of India Rules under . Chapter II it is duty of the advocate to expiein "and to inform the client regarding drafting and pleadings cf the case. Bet according to the respondent he has drafted the written statement as per the instructions given by the complainant and his mother. However the respondent ought to have taken much care before drafting and pleading the case of the eomeiainent. By drafting in such way it will harm the case of the comoiainant and iikeiy that he may ioee the \ "/_ property. The respondent wouldihave 'exp,ia'ianed'_"'t "
ta the cempieinant regarding cc-.nc.e.cL. ._€i~,th'e,'eese " --. of the complainant. Hence...wef_ hoI,d*=tnat vthe't'.., comptataant has proved tfhat_the__ respo'ri--dentv..thas_ f committed professional misconduct. .5-_lo.w'e_Ver'= looking into the fa¢;te_of th'e._c'ase asvweil as the' defense taken i:.~,,.s1v"'~V..,_1:he " r_eep,orl.de:n,t',"' the respondent has 'cornrnltteci-. 'professional miemmluct and we pass 'the~»'*"*-.-4%-'~* " "
nun-II-vllu e :_\-I'll!-I' llcvh After arriving cioncigueions, an order has been passed:"b_y the"V'l§teci:pllVh--ary9- Ctemmlttee-III of the Karnatakaj".Stat,e.*;'5ar:_}:ouncl~i; REPRIMANDING advocate 'x', as per.Sectiofi«1.;;§_5(3.)j(ujVof t-hefitdvocates Act, 1961. 'proceedings, It is clear that the petitlonereghave clcearly established that there was fraud ;,,.eoliu.sion'Hby"'t'hVeir previous advocate in the matter of statement in the trial Court. The tabilsheci, It wiii have to held that the proceedings are vitiated and the consequential effect is that, the result of the fraudulent action should be declared as null and void, otherwise there will be serious miscarriage of justice. Hon'ble Supreme \*X-7 /.
:_thai'-..'f?'a iii': 'a"'u'.a' Court, in catena of decisions nas held. justice never dwell together an.d_that_--t'he" fr'eud'~:vitiates' most solemn proceedings. 5 smon vs. SAVITRI DElJ_'£*;....reported in is uses 319, it has been held as foiiow_s§j:__ l if "Fraizd«.:ee. is vitietes every solemn ect,... :an'd~vvju:stic7e never dwell together. F_raoci.'V~is acondu1ctj'either by letter or 'i~ndi.ice§s the other person or _ authority toj'take* ad idefifnite determinative stand _a's5T_--a__response__ tothe conduct of the former ' - eithernhy _"wo_r'd._o.r i' ter. It is aisc well eettled nil in h- t anisiiepresentetien its -..f amounts to fraud, i-n-
I-'1 1:21 rs reed, irinoeent misrepresentation may also V give reason to claim relief against fraud. A _ »v"'fr:au.duient misrepresentation is called deceit it consists in leading a man into damage by . "willfully or recklessly causing him to believe and act on falsehood. it is a fraud in law if a to be false, and in ery ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed X/v fit flb seriously. A (2 VIEW to de-'rive .he rights a , . , ._ to a property would renderthetrar§«sact!o:n'«x;ojdi'.V A ab inltio. Fraud and ?..'_'d'éceo't.ion.'._ synonymous. Althotugh in '-at' given' cage' deception may not an*ratnst_ to Vfr'aijdffra'a;d ls_ anathema to .ail.l_A_eqnitabl-ej' olrincipleeandé any .. _A.....
affair tainted with_frauci7*»ciannot~i9%e perp mated or saved. by the*v»a;tpl'icat'Ean'v_of"'any equitabte doctrine fiz'sc!u.ci"?.~.ng€ tree j'dcllcate,..'.'..V~ V __ Roirityfaijjg :11a*«.yei?edV:ajccotdingly. RE<§'lARD;INGV:'PC)j1:r§l'r.'(bl:§¥= the suit, had filed written statement and the-rieaft'er flied an application under Order 6 Rule 17 CPC, V A' "aeelting permission of the Court to amend the plalnt, which 'teas allowed; Thereafter, they also filed additional written 12 written statement fiied by them and to su.tnstitLite'.j'the--.--new written statement, which appiieati_on was"the"'~.. triai Court, which was chaiiengied i=.'i_1ot%«iei'ir~r_ri't1petiti.o--n'in_jthis"= ':
court, wherein the question consicieregizii' under Order 8 Rule 1 the '--eiefene?ants replace the written s.e.em; .
no provisionto repEace.t'he'wifqtten staternent on e fneo' by the uifthe defendants are so wilting, 'thew paragraphs or new e\isnts,-- _by Cfiilng an application under Order 6 Rue,17c:c;ithts.jm petition was rejected. In the ¢V:aI_5*se_,"V_t":ra~V,'rer in I.A.4 was to amend the written "5'.__ap'pii?:atie.ijv,"by substituting the defects/'pieadings taken in ""'--the.."prsi}lAous written statement filed on 24.9.2002. The .. petitioners have subsequently, i.e., on 8.9.2005 filed a 'memo, restricting the amendment. Considering the said memo and also the vltiating factor on account of the fraud con'-mlt-ed In the matter, slisssssesi sspre whlle enswerins ...s..;. I..\ .. ._. -.x.. Ll... A... a._ .....n. -.... ...: ..-..|_..A:.... Lu-
POIIII. [3], In ITIY VIEW, LIN': LUBE lb IIUL ONE 0! IEDIGLII' LIIE of the written statement filed and ii!'-éi"1c"." the,d--e'i?$io'i*~:l:ri..the" "
case of REVANSIDDAPPA, has no epplicationee._i'E'ven'VVi'eaa:_'th.eii' said case, It has been .he.l_ol that} By incorporating new paragraphslé"-er new"'-elrentsrfgcan be permitted in an application' 7l:jllle;;.*.l'u*nde'r«.orderH6i Rule 17 sec.
12. reesenwnien haeweiohed with the trial court i'iarvvtli'at, by the proposed amendvmeiit, want to withdraw valuable admissions-«jnade-__ bfy' trier' '*1 their previeus wri..en statementandA""'lf.....such an application is allowed, the plliaiintirfl:_'wi'ii.':"ne burdened to offer the proof regarding echtjuilsltlonfefi'euit property. In my view, considering the baelcgrorind of the case, while answerlnp point (a), it has A netic" that the alleged admissions, were only on petitioners by their previous advocate In the irrterit case, in view of the circumstances which have lead the . fppiaintifrf has approached the Court for reiief, has t
14. commission of fraud and misrepresentation.:°o'rt- petitioners, it cannot be held that~st!oere tihy Vconscious ' . admission made by them in the written which, they are attempting:"'~~,to uirrigitgieppvou't,'«1._;b;r...array account of thefraud"and:frnvi_srepresenteti'on committed on the petitione4rs':,_:hy' adtrocate 'X', in coiiusion withth.e_pi.a:i'r1t1&fif,,, been duly proved and estaioiisi'uedVVihefofire,»tite:"voom'Petent forum, i.e., Karnataita Statettsajr Cou'Itt::i'i..fl cardinal principle of law that pieintaft has to prove his case in eccor..errce with ...w. The OI 'proof In support of his case and hence the r"easoh'ingii of the triai Court that, 'the plaintiffs will be * burdened to offer proof regarding the acquisition of the t "suit schedule property etc.,' to say the least, is one passed withstanding the aiieged admissions, the Court can stiii \ he 15 require the plaintiff to prove the fact, admitted by the defendant, whi<:n~w_ii| bre"d:e.nson_aVnce"" it with Section so of the Evidence net. n»
13. It is also well settviefi'principle"oi".=iawttnnt the defendant In a suit hag-.t;he _«ieti1tu~de a'n.d is entitled to take inconsistent pleas. If_a_nlaotiiofrity..:is.i/_'r.en_uired, the same den oe round inttne ease or eAsnvAnt 'JAoou DHOBI vs. suxnreennen"aro:=;.;inr..:-net}r::~:n'e:.I:s~nAnv, reported in 1995 u n treeeirdeetne first contention, we _ areafieid -._tii'nt fine courts it." wrongV"i'n.i~.oiding t..et it is not epen to the defendant to amend his written statement :j:'u.ntiei=e.:i;}rder 6 Rule 17 czpc by taking a tonitreiry stand than what was stated originally . {no written statement. This is opposed to .<-the settled law. It is open to a defendant to take even contrary stand case of the pialnt being amended so as to \,.
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16 introduce a new of cause of action} so." " 4 V
14. Object of Rule 177.of?'_A_0r'der'~.6" "
declared by the Hon'bié..:,y't3u%preme__ Court casewof RMFSH ;<uM.A.e Moo1,i rest-orted in AIR. '\l\1'\1'| rnrh :lI''A'''§ __ £"'.'.IIi'_..._'-, V' IUUD DL 104/ as T iiOW5L._' 3 "15._'This r:ule"de-lclarefe_that«,the Court may, at any stage of. the =pro'ceed'i'n:_;s.,.« allow either party to "'va_ltier...';'.or ._:a_rhend:' his pleadings in such a E. eat-.'er and 4oejv'e.su'eh' terms as may be just. It _ .... ._al"so"ste_tes«..that "su.ch_..vamendments should be ' necessaéiy' foiathe purpose of determining the urea!" 'srjue7stioin.yA""'ln' 'controversy between the « parties.' ._The'--pro«vsi*sion enacts that no application for em'e_ndm'en.tw should he allowed after the trial hes commenced, unless the Court comes to the conctesiven that in spite of due cfltigence, the part V. could not" have raised the matter for which _ amendment is sought before the commencement of the trial.
. ':t.3--.t3'.: The object of the rule ls that Courts should "try the merits of the case that come before them 1 and should, consequently, aliow alt amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injusticeor prejudice to the other side.
17. Order VI, Rule 17 consist of two parts whereas the first part is discretionary (may) nd leaves it to the Court to order amendment of pleading. The second part is imperative (shall) '\/.
5.;
"id and enjoins the Court to allow eil_.ernen'd~-merg_tee_ which are necessary for the"«.__pu_rp.o'se--ref"
determining the real Veqeuestiorr'"ivn.j':'r:troversvV.e between the .D&rties."J'
15. In the instant caseirael of the suit, 'i1'asdr.»::t yet commenced. 'Petitionereiued seug%e:...aeenemen: oftheir written statemeriton elééoiiintzthefiéi're:uvrnstances 'teted above. I have net-deedvthe amendment. After consideri:i«eL:w1'thegsenie, it would be in the the petitioners to amend the ewritteiggiei them on 24.9.2902. In my zview,' ?t.he.""e4.oiro$;$o$éfi . aenen.-iment, is necessary, to detei=rnine'the--._real questions in controversy between the noaities. .....
triai Court has f-*ii*s:i to exercise the 3-.iriedic-.on nested in It and the illegality is apparent. i-ience the "innpugned order is unsustainable. 1.A.4 filed in the trial court, being meritorious, for the reasons stated above, is liable to be allowed by setting aside the impugned order. Paint {b} is newered accordingly.
/' /" r u 18 For the foregoing discussion and petition Is allowed and the impugned ofder':§s»4Vsetiiesi-a:ieLx. I.A.4 filed in the triai Court Z:-:hai§_'_' petitioners shail incorpoi'ete..V_the'v- "to; written statement filed QAn...:Vx:2A4.-'§'i_.2jO0.Z of the the facts an:iA'ci1_rcumsténtos; ..;§arti.es{e'i'e directed to bear their respsLtivé§:¢osts_; _ '