Karnataka High Court
Sri M.R. Shivanna vs M/S. S.B.L.R Enterprises on 25 March, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.14160/2013 (GM-CPC)
BETWEEN:
1. Sri M.R. Shivanna,
S/o. late M.A. Ramaswamy,
Aged about 64 years.
2. Sri M.R. Rajashekar,
S/o. late M.A. Ramaswamy,
Aged about 60 years.
Petitioner Nos.1 & 2 are
R/at D.No.584, Veenesheshanna Road,
K.R. Mohalla,
Mysore - 570 001. ...PETITIONERS
(By Sri Manmohan P.N. Adv.)
AND:
M/s. S.B.L.R Enterprises,
A Partnership concern,
Represented by its Partners,
(1) Sri M.K.Girish
(2) Sri Vishwanath
(3) Smt. R.Nirmala
(4) Smt. H.V.Yashaswini
2
Shop bearing No.176,
Old Sanhepet Road (Banumaiah Road)
Devaraja Mohalla,
Mysore - 570 001. ...RESPONDENTS
This petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the order dated
31.1.2013 passed on Order 6 Rule 17 of CPC in
O.S.No.175/2007 passed by the Court of the Small
Causes, Mysore vide Annexure-E and consequently allow
the I.A. filed under Order 6 Rule 17 of CPC.
This petition coming on for preliminary hearing this
day, the Court made the following:
ORDER
Petitioners are the plaintiffs and the respondent is the defendant in O.S.No.175/2007 pending on the file of the Court of Small Causes at Mysore. Suit was filed on 29.01.2007 to pass decree of ejectment of the defendant from the plaint schedule property and for delivery of vacant possession and for payment of damages for use and occupation subsequent to the date of institution of the suit. Suit having been contested, trial has taken place. At the fag end of the proceedings on 03.12.2012, plaintiffs filed an application under Order 6 Rule 17 of CPC, seeking 3 leave to amend the prayer column of the plaint, to incorporate an additional prayer to the following effect:
" For the recovery of arrears of rent payable by the defendant from 21-1-2004 till the date of filing of the suit in a sum of Rs.2,98,018/-"
Application having been opposed by the defendant, the learned Trial Judge has passed an order of dismissal dated 31.01.2013. This writ petition is directed against the said order.
2. Sri P.N. Manmohan, learned advocate appearing for the petitioners contended that the view taken by the Trial Court to dismiss the application being irrational and there being a material irregularity in the matter of consideration of the application and the order passed thereon, interference with the impugned order is warranted. Learned counsel submitted that based on the existing pleading and the evidence, amendment of only the prayer in the plaint was sought and since the proposed amendment does not change the nature of the suit or the 4 cause of action for the suit, the Trial Court is unjustified in passing the impugned order.
3. Perused the writ petition record.
4. The Trial Court has passed the impugned order on the ground that the proposed amendment is ex-facie barred by limitation and also the application having been filed when the matter is set out for hearing of the defendant's side of arguments. Further it has noticed that, Exs.P1 & P2 do not show arrears of rent having been claimed by the plaintiffs i.e., when the tenancy of the defendant in respect of the suit premises was terminated.
5. Suit was filed on 29.01.2007 by alleging that the cause of action as having arisen on 21.11.2006 i.e., to pass an ejectment decree and grant consequential relief of damages for use and occupation of the suit premises subsequent to the institution of the suit.
6. The additional prayer proposed by way of an amendment is to pass a decree for recovery of arrears of rent by the defendant from 21.01.2004 till the date of 5 filing of the suit, amounting to Rs.2,98,018/-. The said application was filed on 03.12.2012. The plea being for alleged arrears of rent, the same having not been sought within three years from the date the rent was not paid, the claim is ex-facie barred by limitation.
7. In the case of K. RAHEJA CONSTRUCTIONS LTD. AND ANOTHER Vs. ALLIANCE MINISTRIES AND OTHERS - 1995 Supp-3 SCC 17, suit was filed by the petitioner in 1987 for passing a decree of permanent injunction against the respondents from selling the property, based on a contract of sale of Trust property of the respondents. An application under Order 6 Rule 17 of CPC was made in the year 1994 i.e., after 7 years of filing of the suit, seeking to amend the plaint for grant of specific performance of the contract on the ground that it was subsequently discovered that Charity Commissioner had granted permission for sale of the property and therefore, they were entitled to decree of specific performance. Noticing the period of limitation provided under Article 54 of the Limitation Act, 1963, the application having been filed after 7 years from the date of 6 filing of the suit, the valuable right of limitation having accrued to the respondents, the prayer for amendment of the plaint was declined.
8. In the case of SHIV GOPAL SAH alias SHIV GOPAL SAHU Vs. SITA RAM SARAUGI & ORS. - AIR 2007 SC 1478, almost in identical circumstances, it has been held as follows:
" 11. We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We would expect some explanation, at least regarding the delay since the delay was very substantial. The whole amendment application, when carefully scanned, does not show any explanation whatsoever. This negligent complacency on the part of the plaintiffs would not permit them to amend the plaint, more particularly when the claim has, apparently, become barred by time.
12. It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application.
13. In Dondpati Narayana Reddy vs. Duggireddy Venkatanarayan Reddy & Ors. [(2001) 8 SCC 115] this court observed: "The amendment should, generally, be allowed unless it is shown that permitting the amendment would be unjust and result in prejudice against the opposite side which cannot be compensated by costs or 7 would deprive him of a right which has accrued to him with the lapse of time."
14. In T.N. Alloy Foundry Co. Ltd. vs. T.N. Electricity Board & Others [(2004) 3 SCC 392] a three Judge Bench of this Court relying on L.J. Leach & Co. Ltd. vs. Jardine Skinner and Co. [AIR 1957 SC 357] reiterated as under:
"The law as regards permitting amendments to the plaint is well settled. In L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. it was held that the court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the Court to order it."
The situation is no different in this appeal and as such a suit as described above would be clearly barred by limitation.
15. The defendant having set up a rival title on the basis of sale deed dated 4-10-1985 the plaintiff was bound to amend his pleadings if he wanted to challenge the said sale deed to be ineffective and incapable of creating a valid title in favour of the defendant. It completely beats us as to why the plaintiff remained complacently negligent right from 1987 in case of original plaintiffs and after 1997 in case of co-plaintiffs. On the top of it when we see the amendment application, it is sadly silent regarding any explanation as to why all these steps were not taken after a long period right from 1987 till the amendment application is made on 11-12-2004. Having not challenged, the sale deed dated 4-10-1985, the plaintiff could not lead evidence regarding the circumstances under which that sale deed came into existence which facts they would be entitled now if the amendments were to be allowed. That would be completely different from their preliminary task of proving a better title to the property.
16. Under the circumstances we would not permit the plaintiffs now at this stage to introduce a time barred claim under the peculiar facts and circumstances of this case where we find a complacent negligence on the part of the plaintiffs apart from the towering delay of more than 15 years. We, therefore, allow this appeal and set aside the orders of the High Court as well as the trial Court and dismiss the application for amendment dated 11.12.2004. " 8
9. There being no dispute with regard to the factual position of the case noticed supra, the claim for passing a decree for arrears of rent of Rs.2,98,018/-, for the period from 21.01.04 till 29.01.07, having been made on 03.12.2012, being barred by limitation, the view taken by the Trial Court to dismiss the application being justified, interference in exercise of writ jurisdiction is unwarranted.
In the result, petition fails and is rejected.
Sd/-
JUDGE sac*