Karnataka High Court
Shri Balappa S/O Yamanappa Jagadal vs Smt Bhagawwa D/O. Maleppa Nyamagouda on 18 July, 2024
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NC: 2024:KHC-D:10008
MSA No. 100113 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS SECOND APPEAL NO.100113 OF 2023
BETWEEN:
SHRI BALAPPA
S/O. YAMANAPPA JAGADAL
SINCE DEAD BY HIS LRS
1. SMT. AKKATAI
W/O. BALAPPA JAGADAL
AGE. 67 YEARS
OCC. HOUSEHOLD WORK AND AGRICULTURE
R/O. JUNJURWAD-591 230
TAL. ATHANI, DIST. BELAGAVI.
2. SMT. TANGEWWA
W/O. HANAMANT DESAI @ TODALABAGI
AGE. 44 YEARS
OCC. HOUSEHOLD WORK
R/O. BADAGI-591 230
TAL. ATHANI, DIST. BELAGAVI.
3. SMT. SHIVALEELA
W/O. APPASAHEB TELI
Digitally signed by
MOUNESHWARAPPA AGE. 41 YEARS
NAGARATHNA
Location: HIGH
OCC. HOUSEHOLD WORK
COURT OF R/O. TUNGAL -586 126
KARNATAKA
TAL. JAMAKHANDI, DIST. BAGALKOT.
4. SHRI BASAPPA
S/O. BALAPPA JAGADAL
AGE. 37 YEARS
OCC. AGRICULTURE
R/O. JUNJURWAD-591 230
TAL. ATHANI, DIST. BELAGAVI.
5. SHRI SADASHIV
S/O. BALAPPA JAGADAL
AGE. 31 YEARS
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MSA No. 100113 of 2023
OCC. AGRICULTURE
R/O. JUNJURWAD-591 230
TAL. ATHANI, DIST. BELAGAVI
...APPELLANTS
(BY KUM. SURABHI KULKARNI FOR
SRI CHETAN MUNNOLI, ADVOCATES)
AND:
1. SMT. BHAGAWWA
D/O. MALEPPA NYAMAGOUDA
FALSELY CALLING HERESELF AS
SMT. BHAGAWWA
W/O. BALAPPA JAGADAL
AGE. 65 YEARS
OCC. HOUSEHOLD WORK
R/O. JUNJURWAD-591 230
TAL. ATHANI, DIST. BELAGAVI.
2. THE SPECIAL LAND ACQUISITION OFFICER
JAMAKHANDI, MAIGUR ROAD
JAMKHANDI-587 301
DIST. BAGALKOT.
3. THE STATE OF KARNATAKA
REPRESENTED BY THE DEPUTY COMMISSIONER
BELAGAVI DIST.
BELAGAVI-590 001.
...RESPONDENTS
(BY SRI H. R. DESHPANDE, ADVOCATE FOR R-1;
SRI JAIRAM SIDDI, H.C.G.P., FOR R-2 AND R-3)
THIS MSA IS FILED UNDER ORDER 43 RULE 1 OF THE
CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 06.02.2023 IN R.A.NO.29/2016
ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, ATHANI, IN
ALLOWING AND REMANDING THE MATTER BY SETTING ASIDE
THE JUDGMENT AND DECREE DATED 27.02.2016 IN
O.S.NO.23/1997 ON THE FILE OF 1 ADDITIONAL CIVIL JUDGE
AND JMFC, ATHANI ONLY IN SOFAR AS THE FIRST APPELLATE
COURT ALLOWING IA NO. IV FILED UNDER ORDER VI RULE 17
OF CPC BY THE RESPONDENT NO.1, IN THE INTEREST OF
JUSTICE.
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NC: 2024:KHC-D:10008
MSA No. 100113 of 2023
THIS MSA, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants have filed this appeal under Order 43 Rule 1 of CPC to set aside the judgment and decree dated 06.02.2023 in R.A.No.29/2016 on the file of learned Principal Senior Civil Judge, Athani, Belagavi District in allowing the appeal and remanding the matter by setting aside the judgment and decree dated 27.02.2016 passed in O.S.No.23/1997 by the learned I Additional Civil Judge and JMFC, Athani. The trial Court also allowed I.A.No.4 filed under Order VI Rule 17 of CPC and permitted the plaintiff to amend the prayer with regard to declaratory relief in the plaint. Being aggrieved by the impugned order allowing amendment application, the defendants filed this appeal.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. -4-
NC: 2024:KHC-D:10008 MSA No. 100113 of 2023
3. The appellant Nos.1 to 5 are defendant Nos.1(a) to 1(e). Respondent No.1 is plaintiff, respondent Nos.2 and 3 are defendant Nos.3 and 4 before the trial Court.
4. The brief facts of the case of the parties are as under:
The plaintiff-Smt. Bhagawwa instituted O.S.No.23/1997 initially for the relief of maintenance of Rs.2,000/- per month from defendant No.1 Sri. Balappa Yamanappa Jagadal. During the pendency of the said suit, defendant No.1 attempted to alienate the suit schedule properties, hence, the plaintiff got amended the plaint and sought for consequential relief of injunction restraining defendant No.1 from alienating the suit schedule properties. According to plaintiff-Smt. Bhagawwa, she is the legally wedded wife of defendant No.1 Sri Balappa and their marriage was solemnized about 32 years ago. After the marriage of Balappa and Bhagawwa, their relationship -5- NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 was cordial for couple of years. Later, Balappa had kept a mistress and on the advice of the said mistress, Balappa started ill-treating Bhagawwa. Hence, Bhagawwa came to her parental house and she stayed in her parental house. When things stood thus, Balappa married defendant No.1(a)-Smt. Akkatai as his second wife. Since, Balappa did not make any arrangements for maintenance of Smt. Bhagawwa, she filed the suit for maintenance against Balappa.
5. During the pendency of the suit, Balappa died, hence, Bhagawwa got amended the plaint in the year 2012, by seeking the relief of partition and separate possession of her 1/5th share in the suit schedule properties along with defendant Nos.1(b) to 1(e). According to Smt. Bhagawwa, the children of Smt. Akkatai [defendant Nos.1(b) to 1(e)] are also entitled for 1/5th share each in the suit schedule properties, however, Smt. Akkatai is not entitled for any share, since she is the second wife of Balappa. -6-
NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 Smt. Bhagawwa also impleaded the Special Land Acquisition Officer as defendant No.3 and the Deputy Commissioner, Belagavi as defendant No.4 and sought for an additional relief by way of amendment of plaint seeking for injunction restraining the Land Acquisition Officer from disbursing the compensation amount in respect of suit schedule house property viz., VPC No.131 of Zunjurawad village in favour of defendant Nos.1(a) to 1(e). Smt. Bhagawwa further contended that during the pendency of the suit, Balappa transferred suit schedule item No.1 property in favour of defendant No.2 behind the back of plaintiff and said entry is not binding on her.
6. After institution of the suit before the trial Court, Smt. Akkatai and her children have contended that, Smt. Bhagawwa is not the legally wedded wife of Balappa. Smt. Bhagawwa never resided with Balappa. According to defendants-1(a) to 1(e), the marriage of Balappa was fixed with Akkatai, at that time, -7- NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 Bhagawwa threatened Balappa contending that, she would obstruct his marriage by disclosing his illicit relationship with her and thus, she took a sum of Rs.5,000/- and 2 thola of gold from Balappa and allowed him to perform his marriage with Akkatai. Hence, there is no relationship between Bhagawwa and Balappa at any point of time. It is contended that, Smt. Bhagawwa continued her immoral life and she is having illicit relationship with some other persons in the village. Smt. Bhagawwa in order to make unlawful gain, filed a false suit at the instance of ill-wishers of Akkatai. As Smt. Bhagawwa is not the legally wedded wife of Balappa, the question of paying maintenance by Balappa to Bhagawwa would not arise. It is contended that, Smt. Akkatai is only the legally wedded wife of Balappa. But, Smt. Bhagawwa taking undue advantage of illicit relationship with Balappa, filed a false suit.
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7. On the basis of the above pleadings, the trial Court framed the following issues and additional issues:
1. Whether the plaintiff proves that, she is the legally wedded wife of the defendant No.1?
2. Whether the plaintiff proves that, the defendant inspite of sufficient income, he has refused to maintain her?
3. Whether the defendant No.1 proves that, she is not entitled for any maintenance?
4. Whether the plaintiff is entitled for injunctions against the defendants?
5. What order or decree the parties entitled?
Additional Issues
1. Whether the plaintiff proves that, she is entitled for 1/5th share in all suit properties?
8. The trial court after hearing the parties to the lis, decreed the suit, by declaring Smt. Bhagawwa as the absolute owner of the suit schedule properties, by its judgment and decree dated 27.02.2016 in O.S.No.23/1997.
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9. Hence, Smt. Akkatai and her children [defendant Nos.1(a) to 1(e)] being aggrieved by the judgment and decree of the trial Court preferred an appeal in R.A.No.29/2016 before the first appellate court along with I.A.No.2 under Order 41 Rule 27 CPC for production of additional documents. The plaintiff also filed I.A.No.3 under Order 41 Rule 27 CPC r/w Section 151 CPC. In the mean-while, on 08.01.2023, the plaintiff filed I.A.No.4 under Order 6 Rule 17 of CPC for amendment of the plaint seeking for the relief of declaration that she is the absolute owner of the suit schedule properties and sought for the relief of possession.
10. The first appellate Court by its judgment and decree dated 06.02.2023 allowed the appeal and also allowed I.A.No.2 filed by the defendants and I.A.No.3 filed by respondent No.1-plaintiff-Bhagawwa.
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023
11. The first appellate Court also allowed I.A.No.4 filed by the plaintiff under Order 6 Rule 17 CPC and thereby set-aside the judgment and award of the trial Court and accordingly remanded back the matter for fresh consideration.
12. Aggrieved by the judgment passed by the first appellate Court, more particularly, challenging the order of allowing an amendment application, the defendants have filed this appeal.
13. Kumari Surabhi Kulkarni, learned counsel for the appellants contended that the First Appellate Court has erred in granting the relief of declaration that the plaintiff is the absolute owner of the suit schedule properties in a suit for partition and separate possession, the First Appellate Court has committed a serious error in allowing IA No.IV filed by the plaintiff- Bhagawwa under Order VI Rule 17 of CPC, seeking for amendment of plaint to include the reliefs of declaration that, plaintiff is the absolute owner of the
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 suit schedule properties and possession and for deletion of the words '1/5th share' and include 'legitimate share' in the prayer column.
14. It is contended that the First Appellate Court has erred in answering point No.5 in the affirmative by allowing the amendment application filed by Bhagawwa, without assigning any reasons as to why the amendment sought for in IA No.IV, is necessary for the purpose of determining the real questions in controversy between the parties. Therefore, the impugned judgment and decree insofar as allowing amendment application filed under Order 6 Rule 17 of CPC (IA No.IV) requires interference.
15. It is contended that, the First Appellate Court has failed to note that Smt. Bhagawwa had filed amendment application before the First Appellate Court, on 18.03.2021, i.e., after an inordinate delay of 24 years of filing of the suit.
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16. It is contended that, Smt. Bhagawwa had sought for amendment to the plaint in the year 2012 after death of Balappa-Defendant No.1 seeking for an additional relief of partition and separate possession of her 1/5th share in the suit schedule properties. At the time of filing of amendment application(IA No.IV), Smt. Bhagawwa has stated that the proposed amendment is necessary in view of death of Balappa. The said fact clearly shows that filing of amendment application (IA No.IV) is only an afterthought, after the trial Court erroneously declared the plaintiff as the absolute owner of suit schedule properties, without there being a prayer for relief of declaration, and the present appellants have challenged the same before the First Appellate Court. Smt. Bhagawwa has not explained the reasons for an inordinate delay of 24 years in filing the application for amendment of plaint. The First Appellate Court, overlooking this fact has erroneously allowed the amendment application (IA No.IV) without assigning any justifiable reasons. Thus,
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 the impugned judgment and decree insofar as allowing IA No.IV requires interference.
17. It is further contended that, the First Appellate Court has failed to note that the amendment of plaint seeking for the relief of declaration that Smt. Bhagawwa is the absolute owner, in a suit for partition and separate possession, changes the nature of the suit. In fact, Smt. Bhagawwa admitted that Smt. Akkatai and her children (defendant Nos.1(b) to 1(e)) are the legal heirs of deceased Balappa (Defendant No.1) and they are entitled to 1/5th share each in the suit schedule properties. Hence, Smt. Bhagawwa is estopped from later claiming that she is the only Class-1 legal heir of deceased Balappa (Defendant No.1) and that she is the absolute owner of the suit schedule properties and she is entitled for possession of the same. Smt. Bhagawwa cannot take inconsistent pleas and thus amendment application (IA No.IV)
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 ought to have been rejected by the First Appellate Court.
18. It is further contended that, the First Appellate Court has failed to note that the relief of declaration sought for by way of amendment is barred by law of limitation. As per Article 58 of the Limitation Act, the limitation seeking for the relief of declaration is three years from the date of cause of action. As per amendment application (IA No.IV), the cause of action to seek for amendment of the plaint would arose after the death of Balappa-Defendant No.1. It is submitted that Balappa died on 10.02.2007 and amendment application (IA No.IV) was filed in the year 2021 without assigning any reasons for the said delay. Therefore, the amendment application (IA No.IV) ought to have been rejected by the First Appellate Court as being barred by limitation. Thus, learned counsel prayed to allow the appeal.
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19. Learned counsel for the appellants relied on the following judgments:
i) M. Revanna Vs. Anjanamma (Dead) by legal representatives and Others reported in (2019) 4 SCC 332
ii) Pandit Mallari Mahale Vs. Monika Pandit Mahale and Others reported in (2020) 11 SCC 549;
iii) Basavaraj Vs. Indira and Others reported in (2024) 3 SCC 705;
iv) Sampath Kumar Vs. Ayyakannu and anr., reported in (2002) 7 SCC 559
20. Sri. H. R. Deshpande, learned counsel for respondent No.1/plaintiff-Bhagawwa contended that Smt. Akkatai is the second wife and appellant Nos.2 to 5(defendant Nos.1(a) to 1(e)) are children of defendant No.1-Balappa and Smt. Akkatai. Since the plaintiff sought for the relief of declaration, the trial court has rightly granted the relief of declaration, declaring the plaintiff as the owner of the suit schedule properties. Accordingly, the plaintiff- Bhagawwa filed amendment application under Order 6 Rule 17 CPC. The amendment sought for by the
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 plaintiff is to determine the real questions in controversy between the parties. Since the matter was remanded back to the trial court for fresh consideration, no injustice has been caused to the appellants. The object of remand is to avoid multiplicity of the suit. The mere delay and lapse in making an application for amendment is not a ground for refusal of the amendment.
21. Learned counsel for respondent No.1 further contended that the appellants have challenged the order passed under I.A.No.4 under Order 6 Rule 17 CPC, the same cannot be challenged under Order 43 Rule 1 CPC and the remedy lies in writ petition only. Hence, learned counsel for the plaintiff prayed to dismiss the appeal. Learned counsel relied upon the following decision:
i. Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Ors reported in 2022 SCC OnLine SC 1128
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22. In view of the submissions made by the learned counsel for the appellants and learned counsel for the respondents, the following substantial questions of law arises for consideration of this Court:-
i) Whether the First Appellate Court is justified in law in answering Issue No.5 in affirmative and allowing IA No.IV filed under Order VI Rule 17 of CPC by the Respondent No.1 for amendment of plaint, without assigning any reasons and by directing the Trial Court to frame an issue regarding declaration of ownership?
ii) Whether the First Appellate Court is justified in law in allowing IA No.IV which changed the nature of the law suit?
iii) Whether the First Appellate Court is justified in law in allowing IA No.IV which was filed after inordinate delay of 24 years and thus, barred by law of limitation?
iv) Whether the First Appellate Court is justified in law in allowing IA No.IV which amounts to taking away the earlier admissions of the Respondent No.1?
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23. In view of the facts and circumstances of the case and the substantial questions of law formulated above, it is just and necessary to peruse the material available on record.
24. From the perusal of the material available on record, it clearly establishes that initially Smt. Bhagawwa had filed a suit for maintenance in O.S.No.23/1997 against her husband Balappa and later, in the same suit, she got amended the plaint and also sought for consequential reliefs of injunction restraining defendant No.1 from alienating the suit schedule properties in the year 2004. During the pendency of the suit, defendant No.1 Balappa disputed the marital status of the plaintiff with him.
25. During the year 2007, Balappa died and his second wife Akkatai and her children were brought on record as legal heirs of Balappa. Hence, in the year 2012, the plaintiff once again got amended the plaint and sought for additional relief of partition and
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 separate possession of her 1/5th share in the suit schedule properties along with second wife Akkatai and her children.
26. The trial court considering the oral evidence of PWs.1 to 3, documentary evidence at Exs-P1 to 8, the evidence of DW-1, DW-2 and documents at Exs-D1 to D5, decreed the suit of the plaintiff- Bhagawwa and declared her as the absolute owner of the suit schedule properties.
27. Being aggrieved by the judgment and decree passed by the trial court, Smt. Akkatai and her children preferred an appeal before the first appellate Court in R.A.29/2016 before the learned Principal Senior Civil Judge, Athani.
28. From the perusal of pleadings and the finding of the First Appellate Court, it clearly transpires that, Bhagawwa appears to have proved the aspect that, she is the legally wedded wife of Balappa-defendant No.1. Now after death of Balappa, she claims that, she
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 is the absolute owner of suit schedule properties. In this regard, the First Appellate Court allowed an amendment application and remanded back the matter to the trial Court at the instance of both the parties as sought under I.A.Nos.2 and 3.
29. Hence, it is just and necessary to analyse Order 6 Rule 17 CPC.
Order VI Rule 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.
30. From the perusal of the above proposition of law, it appears that the Court may at any stage of the proceedings allow either party to amend his pleadings in such a manner and on such terms, as may be just
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 and all such amendments shall be made, as may be necessary, for the purpose of determining the real questions in controversy between the parties. The power under Rule 17 CPC is entirely discretionary to be used judiciously on consideration of the circumstances of the case. The Rule allows at any stage, all amendments which satisfy two conditions:-
1. Of not working injustice to the other side &
2. Of being necessary for the purpose of determining the real questions in controversy between the parties.
31. The Hon'ble Apex Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. and another reported in 2022 SCC OnLine SC 1128 at paragraph Nos.18 and 19 held as under:
"18. Before adverting to the rival contentions canvassed on either side and before we deal with the orders passed by the High Court permitting the plaintiffs to amend the plaint with respect to the prayer clause, let us consider, the laws on the question of allowing
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 or rejecting a prayer for amendment of the pleadings, more particularly, when the plea of limitation was taken by one of the parties.
19. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub- serve the ultimate cause of justice and avoid further litigation. In L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co., AIR 1957 SC 357, this Court at paragraph 16 of the said decision observed as follows:
"16. It is no doubt true that courts 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, if that is required in the interest of justice....."
32. The Hon'ble Apex Court in the case of Basavaraj Vs. Indira and Ors., reported in (2024) 3 SCC 705 at paragraph Nos.13 to 16 has held as under:
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 "13. Initially, the suit was filed for partition and separate possession. By way of amendment, relief of declaration of the compromise decree being null and void was also sought. The same would certainly change the nature of the suit, which may be impermissible.
14. This Court in Revajeetu case [Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37] enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factor is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application.
15. If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of consideration of any application for amendment of pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application.
16. In the case in hand, the compromise decree was passed on 14-10-2004 in which the plaintiffs were party. The application for amendment of the plaint was filed on 8-2-2010 i.e. 5 years and 03 months after passing of the compromise decree, which is sought to be challenged by way of amendment. The limitation for challenging any decree is three years (reference can be made to Article 59 in Part IV of the Schedule attached to the Limitation Act, 1963). A fresh suit to challenge the same may not be maintainable. Meaning thereby, the relief sought
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 by way of amendment was time-barred. As with the passage of time, right had accrued in favour of the appellant with reference to challenge to the compromise decree, the same cannot be taken away. In case the amendment in the plaint is allowed, this will certainly cause prejudice to the appellant. What cannot be done directly, cannot be allowed to be done indirectly."
33. The Hon'ble Apex Court in the case of M. Revanna v. Anjanamma(Dead) by legal representatives and Ors., reported in (2019) 4 SCC 332 at paragraph Nos.7 and 9 held as under:
"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.
8. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
9. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff 6 Respondent 1 herein."
34. The Hon'ble Apex Court in the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale and Ors., reported in (2020) 11 SCC 549 at paragraph Nos.7 and 8 held as under:
"7. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
In Vidyabai v. Padmalatha [Vidyabai v. Padmalatha(2009) 2 SCC 409 : (2009) 1 SCC (Civ) 563] , this Court observed in para 19 as under: (SCC p. 416)
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 "19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
8. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order [Pandit Malhari Mahale v. Monika Pandit Mahale, 2018 SCC OnLine Bom 11687] of the High Court as well as of the Civil Judge, the amendment application stands dismissed."
35. The Hon'ble Apex Court in the case of Sampath Kumar Vs. Ayyakannu and Anr., reported in (2002) 7 SCC 559 at paragraph Nos.10 and 11 held as under:
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 "10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma v. Mamtha Shenoy [(2001) 8 SCC 561] .)
11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed."
36. Whereas, in the instant case, the first appellate Court allowed I.A.No.4 and permitted the plaintiff to amend the plaint and insert the word "she is the absolute owner of the suit schedule property and for possession and for deletion of the words '1/5th share' and include 'legal share' in the prayer column.
37. The trial court in O.S.No.23/1997 declared the plaintiff-Bhagawwa as the absolute owner of the property. From the perusal of the contention of plaintiff, it appears that since beginning she has been claiming that, she is legally wedded wife of Balappa- defendant No.1 and after his death, she became the absolute owner of the suit schedule property. In the year 2012, she got amended her plaint and contended
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 that, she is the absolute owner of the suit schedule property along with the children of Akkatai and now she is claiming her absolute right over the suit schedule property. Though, it has the effect of changing her exclusive right over the nature of the suit schedule property, but, it will not change the nature of the suit, as, right from the beginning, the defendants have denied the status and rights of plaintiff-Bhagawwa. If amendment is permitted, it will not cause any hardship to the defendants and the amendment application will not introduce a totally new, different and inconsistent case. By virtue of an amendment, the plaintiff-Bhagawwa though takes away admissions given by her in an earlier amendment application, still, the present day law will not change the rights of the children of Akkatai and it will not amount to withdrawal of clear admissions made in the plaint. Soon after remand, a heavy burden is casted on Smt. Bhagawwa-plaintiff, to prove her exclusive rights over the suit schedule property.
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38. Hence, if the amendment sought for by the plaintiff is allowed, it will not cause any injustice to the defendants i.e., the appellants herein. The trial Court declared the plaintiff as the absolute owner of the suit schedule properties, now, the plaintiff sought similar relief in I.A.No.4 under Order 6 Rule 17 CPC and the First Appellate Court considered it being necessary for the purpose of determining the real question in controversy between the parties.
39. All amendments are to be allowed which are necessary for determining the real questions in controversy, provided, it does not cause injustice or prejudice to other side. This is mandatory, as is apparent from the use of the word "shall", in the later part of order VI Rule 17 of Code of Civil Procedure.
40. The prayer for amendment is to be allowed:
a. (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
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(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
b. (iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
c. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
d. (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 in rendering a more satisfactory decision, the prayer for amendment should be allowed.
e. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is able to be allowed even after expiry of limitation.
f. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
g. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
h. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. j. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main Issues in controversy between the parties, the amendment should be allowed.
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41. It is pertinent to note that before the First Appellate Court, both the parties had filed I.A's under Order XLI Rule 27 of CPC and prayed to remand back the matter to the trial Court for fresh consideration. Accordingly, the First Appellate Court allowed the I.A's and remanded back the matter for fresh consideration to decide the suit afresh on merits.
42. Order 41 of the Code provides for appeals from original decrees. The Code empowers the appellate Court to order remand in three situations. These three situations are covered by Order 41 Rule 23, Order 41 Rule 23A and Order 41 Rule 25 which read as under:
23. Remand of case by Appellate Court --
Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 23A. Remand in other cases --
Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.
25. Where Appellate Court may frame issues and refer them for trial to court whose decree appealed from --
Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred and in such case shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons there for within such time as may be fixed by the Appellate Court or extended by it from time to time. Order 41 Rule 23 is invocable by the appellate Court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial Court on a preliminary point and such decree is reversed in appeal and the appellate Court thinks proper to remand the case for fresh disposal. While doing so, the appellate Court may issue further direction for trial of certain issues.
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 Order 41 Rule 23A has been inserted in the Code by Act No.104 of 1976 w.e.f. February 1, 1977. According to Order 41 Rule 23A of the Code, the appellate Court may remand the suit to the trial Court even though such suit has been disposed of on merits. It provides that where the trial Court has disposed of the suit on merits and the decree is reversed in appeal and the appellate Court considers that retrial is necessary, the appellate Court may remand the suit to the trial Court.
Insofar as Order 41 Rule 25 of the Code is concerned, the appellate Court continues to be seized of the matter; it calls upon the trial Court to record the finding on some issue or issues and send that finding to the appellate Court. The power under Order 41 Rule 25 is invoked by the appellate Court where it holds that the trial Court that passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally.
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 The appellate Court while remitting some issue or issues, may direct the trial Court to take additional evidence on such issue/s.
Insofar as the present case is concerned, the trial Court had disposed of the suit on merits and not on a preliminary issue. The first appellate Court set aside the judgment and decree of the trial Court and directed the trial Court to decide the suit afresh after giving parties an opportunity to lead evidence -- oral as well as documentary. The nature of the order passed by the appellate Court leaves no manner of doubt that such order has been passed by the appellate Court in exercise of its power under Order 41 Rule 23A of the Code.
Order 43 of the Code provides for appeals from orders. Clause (u) of Rule 1 Order 43 was amended consequent upon insertion of Rule 23A in Order 41 w.e.f. February 1, 1977. It reads as under:
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 An appeal shall lie from the following orders under the provisions of Section 104, namely:--
xxxxx (u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
xxxxx It is clear from the above provision that an order of remand passed under Order 41 Rule 23A is amenable to appeal under Order 43 Rule 1 (u) of the Code.
43. If the matter is remanded as requested by both the parties and allow I.A.No.4 filed under Order 6 Rule 17 CPC, no harm or prejudice would be caused to the appellants, as the amendment sought for by the plaintiff is to determine the real questions in controversy to the parties. Further, whenever the parties disputed their rights, status of the parties, the remedy is to seek declaration under Section 34 of The Specific Relief Act, 1963. As the defendants disputed the status of the plaintiff with her husband, the plaintiff has rightly sought the relief of declaration.
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023 Hence, the first appellate Court has rightly set-aside the judgment of the trial court and remanded the matter to the trial Court for fresh consideration.
44. Whereas, learned counsel for the plaintiff contended that:
1. As per the provisions of Order 43 Rule 1 CPC, only those orders can be assailed which were specifically mentioned in Order 43 Rule 1 CPC.
2. Order 43 Rule 1 CPC does not include the provision for filing an appeal from an order of allowing an application under Order 6 Rule 17 CPC.
3. Hence, the appeal is not maintainable.
`
45. Perused the appeal memo and impugned order. The appellant filed this appeal under XLIII Rule 1 CPC and challenged I.A.No.IV filed under Order VI Rule 17 of CPC. Hence, it is just and necessary to analyse Order XLIII Rule 1 of CPC which reads as under:
1. Appeals from orders-An appeal shall lie from the following orders under the provisions of Section 104, namely:-
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023
(a) an order under Rule 10 order VII returning a plaint to be presented to the proper court(except where the procedure specified in 10A of order VII has been followed)
(b) [xxx]
(c) an order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of order IX rejecting an application (in case open to appeal) for an order to set aside a decree passed ex-parte;
(e) [xxx]
(f) an order under rule 21 of order XI;
(g) [xxx]
(h) [xxx]
(i) an order under rule 34 of order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale;
(ja) an order rejecting an application made under sub- rule(1) of Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-
rule (1) of Rule 105 of that Order is appealable;]
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(k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under Rule 10 of Order XXII giving or refusing to give leave;
(m) [xxx]
(n) an order under Rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
[(na) an order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]
(o) [xxx]
(p) orders in interpleader-suit under Rule 3, Rule 4 or Rule 6 of Order XXXV;
(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;
(r) an order under Rule I, Rule 2, Rule 2A, Rule 4 or Rule 10s-of Order XXXIX;
(s) an order under Rule 1 or Rule 4 of Order XL;
(t) an order of refusal under Rule 19 of Order XLI to re-admit, or under Rule 21 of Order XLI to rehear, an appeal;
(u) an order under Rule 23 or Rule 23A] or Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;
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(v) [xxx] (w) an order under Rule 4 of Order XLVII granting an application for review.
46. Only those orders can be assailed under the provisions of Order 43 Rule 1 CPC which are mentioned in this provision.
47. Order 43 Rule 1 CPC provides for remedy of filing appeal against allowing application under Order 7 Rule 10 CPC.
48. Appeal against order of rejection of defendant's application under Order 7 Rule 11 CPC does not found mentioned in the provisions of Order 43 Rule 1 CPC.
49. It is well settled proposition of law that all parties to a suit, including the parties before this Court, are bound by the statute.
50. There is no provision for filing of appeal under Order 43 Rule 1 CPC against rejection of application under Order 7 Rule 11 CPC.
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NC: 2024:KHC-D:10008 MSA No. 100113 of 2023
51. The Hon'ble Division Bench relied upon the judgment of the Apex Court in the case of Kandla Export Corporation and another Vs OCI Corporation and Anr. reported in (2018) 14 SCC 715 and of a Co-ordinate Bench of this Court in Odeon Builders Pvt. Ltd. Vs NBCC (India) Ltd. reported in 2021 SCC OnLine Del 4390, wherein similar issues were discussed and finding were given that only those Orders can be appealed under the provisions of Order 43 Rule 1 CPC, which are mentioned therein.
52. Relying upon the aforementioned judgment as stated by the Hon'ble Supreme Court of India, the Hon'ble Division Bench, was pleased to dismiss the aforementioned appeal being not maintainable in the eye of law.
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53. Hence, on the aforesaid grounds, the appellants cannot seek remedy under Order XLIII Rule 1 of CPC.
54. In the overall view of the matter, the Court is convinced that, this Court should not disturb the impugned order passed by the First Appellate Court, allowing amendment application (I.A.No.4) filed at the instance of the plaintiff-Bhagawwa.
Accordingly, the Court proceeds to pass the following:
ORDER
1. The appeal is dismissed.
2. The impugned judgment and award dated 06.02.2023 passed in R.A.No.29/2016 by the learned Prl. Senior Civil Judge, Athani remanding the matter to the trial court for fresh consideration stands confirmed.
3. All contentions are left open.
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4. Pending application, if any, stands disposed off.
5. No order as to costs.
Sd/-
JUDGE MN/List No.: 1 Sl No.: 37