Karnataka High Court
Sri M.R.K. Rau And Others vs Corporation Of The City Of Bangalore, By ... on 16 January, 1992
Equivalent citations: AIR1992KANT411, ILR1992KAR1107, 1992(2)KARLJ283, AIR 1992 KARNATAKA 411, (1992) ILR (KANT) 1107, (1992) CIVILCOURTC 692, (1992) 2 KANT LJ 283, (1992) 2 CURCC 283
JUDGMENT
1. This appeal is preferred against the judgment and decree dated 28-3-1990 passed by the learned XIX Additional City Civil Judge, Bangalore City in O.S. No. 1869/1985.
2. The appeal is admitted. The records are received. The respondent is represented through a counsel. As the appeal lies in a narrow compass, production of paper books is dispensed with and it is heard for final disposal.
3. The appellants are the plaintiffs and the respondent is the defendant.
4. The suit was filed for a permanent injunction and also for a mandatory injunction directing the defendant -- Corporation -- to deviate the road running across and through the suit schedule property.
5. The trial Court has dismissed the suit. It has refused permanent injunction on the ground that prior to the date of filing of the suit, the encroachment had taken place and as such the plaintiffs were not in possession on the date of the suit. Mandatory injunction has been refused on the ground that the road for public purpose is formed; that the plaintiff can be compensated, therefore, it is not proper to grant mandatory injunction,
6. The case of the plaintiffs is that the Corporation has formed a road on the suit plot which belongs to them without acquisition. The Corporation disputes the title of the plaintiffs to the suit plot.
7. In this appeal, there is an application filed by the plaintiffs seeking amendment to the plaint. The plaintiffs have prayed in the application that they be permitted to amend the plaint so as to add a prayer for awarding damages of Rs. two lakhs. The reason given in the affidavit filed in support of the application sworn to by the 8th appellant is that by inadvertence the relief for damages was not sought in addition to the relief of permanent Injunction. The defendant-respondent has filed the objections. The main objection of the defendant is that as on the date of filing of the application i.e., 27-11-1991 seeking amendment to the plaint, the relief for damages is barred by time therefore, if an amendment is allowed it will relate back to the date of filing of the suit as such the defendant will be put to irreparable loss which cannot at all be compensated.
8. Therefore, the following points arise for consideration :
1) Whether it is just and necessary to allow the amendment of the plaint sought for in the appeal?
2) If Point No. 1 is answered in the affirmative, whether the judgment and decree of the trial court are liable to be set aside and the case has to be remanded to the trial Court?POINT NO. 1
9. It is relevant to notice that the case of the plaintiffs is that the land on which the road in question is formed belongs to them and it is not acquired by the Corporation and no compensation has been paid. The plaintiffs are not consenting parties to it. If it is proved that the land on which the road in question has been formed belongs to the plaintiffs, as a necessary corollary, the act of the Corporation would be without the authority of law. The trial Court has not gone into the question of title because the suit was for permanent and mandatory injunctions and as already pointed out, one of the reasons given by it for dismissing the suit is that the proper remedy is to seek damages or compensation. As the Corporation is a 'State' within the meaning of Art. 12 of the Constitution, it cannot take away private property without recourse to law and without paying compensation. If it is proved that the land in question belongs to plaintiffs on which the Corporation has formed the road, the plaintiffs would be entitled to compensation. Therefore, for the purpose of deciding the controversy between the parties, we arc of the view that the amendment sought for is just and necessary.
9-1. It is a settled position of law that amendment of pleadings can be allowed at any stage of the proceeding either in the suit or in the appeal provided it is necessary for the purpose of deciding the controversies between the parties and it is not barred by time; in other words, a fresh suit on the amended claim shall not be barred by limitation on the date of the application but this is a factor to be taken into consideration in exercise of the discretion as to whether amendment should be allowed or not. However, it does not affect the power of the court to allow the amendment if it is required to do justice. As already pointed out above, the amendment sought for by the plaintiffs is necessary not only to do justice but also to decide the controversies between the parties.
10. The contention of the Corporation that the amendment should not be allowed as the relief for damages or compensation is barred by time on the date the application is filed cannot be accepted. This contention overlooks the provisions contained in S. 40 of the Specific Relief Act, 1963 (hereinafter referred to as the 'Act') which are as follows :
"40(1). The plaintiff in a suit for perpetual injunction under S. 38, or mandatory injunction under S. 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.
2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint;
Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.
3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach."
11. Sub-sec. (3) of S. 40 of the Act is relevant to the case on hand. From the provisions contained in S. 40(1) and (2) of the Act, it emerges that in a suit for perpetual injunction or Mandatory injunction, the plaintiff may also claim damages and it would be open to the court to award damages in addition to or in substitution for a decree of perpetual injunction or mandatory injunction provided the plaintiff has claimed damages in his plaint. Even if the plaintiff has not claimed damages in the plaint, it is open to the plaintiff to amend the plaint at any stage of the proceedings and include the claim for damages. In the light of the words "the court shall at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including just claim" contained in the proviso to sub-sec. (2) of S. 40 of the Act, the court cannot refuse permission to the plaintiff to amend the plaint to include the claim for damages in a suit for perpetuall injunction or mandatory injunction. Therefore, the claim for damages is inherent in a suit for perpetual injunction or mandatory injunction. Therefore, where no such relief is specifically claimed, if sought for at any stage of the proceeding, it has to be allowed to be added. Therefore, there is no substance in the contention of the defendant that the claim for damages is barred by limitation on the date the application seeking amendment to add the claim for damages is filed, as such it cannot bel allowed. Hence the contention of the defendant is rejected. Accordingly Point No. 1 is answered in the affirmative.
POINT NO. 212. We are of the view that as the trial court is now required to go into the question of title of the plaintiffs with regard to the land in question. In the event the trial court comes to the conclusion that the suit property belongs to the plaintiffs, the Corporation would be required to prove that it had taken possession of the suit property after due acquisition and in accordance with law. As these questions have not been considered and could not have been considered by the trial court, in the absence of the claim for damages specifically made in the plaint, we are of the view that the judgment and decree under appeal are liable to be set aside and the suit is liable to be remitted to the trial court with a direction to frame the issues afresh and try the same and dispose of the suit afresh in accordance with law. Accordingly, Point No. 2 is answered in the affirmative.
13. Accordingly, the amendment application is allowed. The plaintiff to carry out the amendment within a week from 24-2-1992 or on such other date as may be granted by the trial court.
14. The appeal is allowed. The judgment and decree of the trial court are set aside. The suit is remanded to the trial court with a direction to try and decide the same in accordance with law and in the light of the observations made in this judgment. The parties are directed to appear before the trial court on 24-2-1992. It is open to the defendants to file additional written statement within three weeks from 24-2-1992.
15. The plaintiffs have to pay a court-fee on a sum of Rs. 2 lakhs claimed as damages on the plaint on 24-2-1992 in the trial court or within such time as may be granted by the trial court. As the suit is of the year 1985, the trial court is directed to try and decide the suit within six months from 24-2-1992.
16. In the facts and circumstances of the case, there will be no order as to costs.
17. Order accordingly.