Karnataka High Court
Smt. Prameelamma And Others vs Kamavar Reddy Venkan Gouda And Others on 12 April, 1999
Equivalent citations: ILR1999KAR3232, 1999(4)KARLJ700
Author: Mohamad Anwar
Bench: Mohamad Anwar
ORDER
1. I have heard the arguments of the learned Counsel on both sides.
2. These two revisions have arisen from the common order of the Trial Court passed in O.S. No. 1 of 1988 pending on its file allowing the plaintiffs I.A. 8 filed under Order I, Rule 10(2) of the CPC and I.A. 11, filed under Order 6, Rule 17 of the CPC, thereby permitting him to amend the plaint as prayed and implead the petitioners in CRP No. 2562 of 1996 as defendants 2, 3 and 4 respectively, in the suit.
3. The impugned order is challenged by the impleading defendants, as also by the original defendant who is the petitioner in CRP No. 2538 of 1996.
4. The said O.S. No. 1 of 1988 was instituted under Section 92 of CPC by respondents 1 to 5-plaintiffs, against petitioner in CRP No. 2538 of 1996 alone for recovery of Rs. 42,700/- with interest from the said defendant towards the realisation of the sale proceeds of the property belonging to the Registered Charitable Public Trust named "Sree Swamy Thrivikramananda Ashram" of Gowhar Village in Jevargi Taluk, Gulbarga District, alleging that, while he was a member of the committee of trustees of the said trust, he illegally sold trust property on 23-6-1980 to various persons and that having undertaken to refund a sum of Rs. 75,000/- to the trust, he failed to do so.
5. Initially, seeking permission to file the said suit as the representative suit, the plaintiffs had made an application under Section 92 of the CPC before the Court below in Miscellaneous No. 2 of 1994 which came to be allowed by its considered order dated 18-2-1994. That order of the Trial Court was challenged by the original defendant (petitioner in CRP No. 2538 of 1996), before this Court in CRP No. 1314 of 1994 which revision was rejected by order dated 26-9-1994. As a result, the said suit came to be formally registered on the file of the Trial Court and was being prosecuted by the plaintiffs against defendant for the said relief. The defendant contested the said suit by filing his written statement denying the plaint averments and contending that the property alienated by him exclusively belonged to him.
6. Subsequently, during pendency of the suit, the original defendant was stated to have again alienated three house sites of the said trust on 30-3-1991 to the proposed defendants 2, 3 and 4. Therefore, I.A. 8 under Order 1, Rule 10(2) of the CPC was filed by the plaintiff on 20-2-1995 seeking amendment of the plaint to plead therein the new fact of the transfer by him to the latter of the said house sites and then to incorporate prayer for the additional reliefs of declaration that the said three alienations all dated 30-3-1991 made in respect of the said three items of property shown in the application at Schedules B, C and D are void in law and not binding on the said trust and also for the relief of delivery of the possession of the said properties to the plaintiffs in their capacity as representatives of the said trust. Another amendment which the plaintiff intended to make in the plaint was in relation to the market value of the said property showing it at Rs. 4,51,000/- and to plead that the maximum Court fee payable for the said additional reliefs was Rs. 200/-as provided under Section 27 of the Karnataka Courts Fees and Suits Valuation Act, 1958 (the 'Act', for short). Along with I.A. 8, I.A. 11 under Order 6, Rule 17 of the CPC was also made for the plaintiffs for permission to implead the proposed said purchasers as defendants 2, 3 and 4, respectively. Both the said applications were resisted by the original defendant and the proposed defendants as well who filed their statements of objections contending that they are liable to be rejected.
7. The Trial Court by its impugned order allowed both the aforesaid applications. Its said order is now challenged by the defendant and the proposed defendants as well by these two petitions.
8. Mr. V.S. Gunjal, learned Counsel for petitioner in CRP No. 2538 of 1996, and Mr. K.N. Patil learned Counsel for petitioners in CRP No. 2562 of 1996, vehemently argued assailing the validity of the Trial Court's said orders, on various grounds. It was firstly maintained by them that, in a suit instituted by the plaintiff under Section 92 of the CPC, the amendment of the plaint as sought by him seeking additional reliefs against the proposed defendants could not have been allowed by the Trial Court without its further formal permission accorded under Section 92 of the CPC. Nextly, they contended that, the additional reliefs sought to be incorporated in the plaint were based on a different cause of action which had arisen on 30-3-1991 during pendency of the suit and that in proof of these reliefs, a different set of facts were intended to be pleaded by the plaintiffs. It was their further submission that, such an amendment of the plaint which introduces altogether a different case for the plaintiff based on new set of facts and a new cause of action was not permissible and the Court below has erred in allowing the plaintiffs' said applications. The third ground of attack was that, the additional relief prayed against the proposed defendants could not attract applicability of Section 27 of the Act which prescribes the maximum fee of Rs. 200/- or where the property has no market value on Rs. 1,000/- as the Court fee payable for the relief of possession or joint possession of trust property or for a declaratory decree in a suit between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee. In the instant case, admittedly, none of the proposed defendants was either a trustee or a ceased trustee of the said trust. Therefore, it was argued by the learned Counsel for the petitioners that, the plaintiff was required to file a separate suit independently for the said additional reliefs of declaration and recovery of possession of the property by paying ad valorem Court fee on the market value thereof. For this proposition, reliance was placed by them on a decision of Supreme Court reported in Bishwanath and Another v Thakur Radha Ballabhji and Others, Mr. K.N. Patil further argued that, since none of the proposed defendants was ever a trustee of the said trust, they could not be impleaded in the plaintiffs' suit which was instituted by him against the original defendant under Section 92 of the CPC.
9. Per contra, Mr. Raghupathy, learned Counsel for respondent-plaintiff argued in support of the impugned order of the Court below.
10. On consideration of contentions put forward by both sides, I find sufficient force and weight in the statements of the learned Counsel for petitioners. As rightly contended by them, the proposed amendment of the plaint if permitted would introduce altogether a new case based on new set of facts and a new cause of action. Therefore, such an amendment of the plaint is impermissible in law and the Trial Court has grossly erred in allowing the plaintiff's I.A. 8 permitting him to carry out such an amendment of the plaint. That apart, as rightly submitted by the learned Counsel for petitioners, none of the proposed defendants being ever a trustee of the said trust, the said reliefs of declaration and recovery of possession of the properties from them cannot be sought and pursued in the said O.S. No. 1 of 1988 which was filed by the plaintiffs under Section 92 of the CPC for mere recovery of money from the original defendant on the allegations that, the same was the sale proceeds of the trust property that was alienated by the latter prior to the suit in favour of the transferees who were not made parties to the suit.
11. Besides, a careful analysis of Section 27 of the Act unerringly indicates that, it is applicable in respect of a suit for possession of the trust property or for a declaratory decree only when the suit is between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee. The proposed defendants are admittedly not at all the trustees or ceased trustees of the said trust. In that view of the matter, the plaintiff was required to file an independent suit against them for the said reliefs by paying the requisite Court fee on the market value of the property.
12. A question as to who could be added as an additional defendant in a suit instituted under Section 92 of the CPC arose for consideration of Calcutta High Court in Gobinda Chandra Ghosh alias G. Ghosh and Another v Abdul Majid Ostagar and Others . Dealing with this aspect of the matter, the Lordship of the Division Bench of Calcutta High Court expounded the proposition as follows:
"The third point raised in this appeal is that the suit must fail against defendant 3 for want of sanction under Section 92 of the CPC....
It admits of no doubt that the obtaining of sanction of the relevant authorities is a condition precedent to a validly instituted suit under Section 92 of the CPC. When in a suit of this description, a new defendant was added and certain additional reliefs were prayed for against him, it was held by Dever J., in 36 Bom. 168, that a fresh sanction of the Advocate General was necessary. Mr. Gupta argues that once a suit is validly commenced after obtaining sanction as is necessary, under Section 92 of the CPC, no fresh sanction is necessary at a further stage of the suit. This cannot possibly be disputed nor can it be disputed that the amendment of the plaint or the addition of the party which does not alter the nature of the claim in the suit does not necessitate a fresh sanction, but when such amendment or addition of party does change the nature or scope of the suit, a fresh sanction is certainly required. Here, as against defendant 3, there is a totally different cause of action; the relief claimed against him is also different. The plaintiffs seek to make defendant 3 liable as a constructive trustee and claim reliefs against him on that footing. That, in my opinion, certainly extends and alters the scope of the suit, and as no sanction was obtained previous to defendant 3 being added as a party to the suit, so far as defendant 3 is concerned, the suit cannot be held to be maintainable".
13. A Division Bench of the High Court of Bombay in Bapugowda Yadgouda Patil and Others v Vinayak Sadashiv Kulkarni and Others, has dealt with the amendment of plaint in a suit filed under Section 92 of the CPC. It has been said that, to allow or not to allow the amendment of the plaint is dependent on the nature of the proposed amendment. In this regard, it has observed;
"We think the true position is that it is for the Court to decide in suits under Section 92 as in any other suit whether an amendment is permissible and the consent of the Advocate-General or the Collector, as the case may be, is really evidence which has to be taken into consideration before deciding whether the amendment should be allowed. We can see no reason why amendments which do not substantially change the character of the suit or enlarge the scope of it should not be made by the Court itself without sanction. Amendments which enlarge the scope of the suit, for instance by allowing further reliefs, without substantially changing its character, may be made with the sanction of the Advocate General or the Collector, that sanction, as I say, being evidence that the suit after amendment is to all intends and purposes the same suit and not a different one. Amendments substantially changing the character of the suit would, we think, not be permissible even with sanction. In such a case it could hardly be said that the suit in its amended form was ever validly instituted".
14. The resultant position of law which emerges from the aforesaid authorities of Calcutta High Court and Bombay High Court is that, additional reliefs against additional defendants in a suit filed under Section 92 of the CPC cannot be sought without obtaining the prior sanction contemplated under Section 92 of the CPC and that even with this sanction, amendment of the plaint cannot be permitted if it substantially changes and alters the nature and scope of the suit. In the instant case, having due regard to the amendment proposed to be made by the plaintiff in his plaint, I am of the considered opinion that both these legal bars are attracted to the proposed plaint amendment and, therefore, his applications were liable to be rejected.
15. Mr. Raghupathy, learned Counsel for the petitioner in order to drive home his contention that, a transferee of the trust property has to be impleaded in a suit under Section 92 of the CPC since he happens to be a necessary party, proposed to rely on a Single Bench decision of Allahabad High Court in Janki Prasad and Another v Kuber Singh and Others. At para 14 of the decision, the learned Judge of the High Court has no doubt held that, Section 92 of the CPC creates no bar for joinder of necessary parties and that the transferee of the alleged trust property who claimed the property in his own right and denied the validity of the trust can be impleaded and declaration that the property is a trust property can be granted against him. But, on facts, I am pursuaded by the aforesaid Division Bench authorities of the High Courts of Calcutta and Bombay taking the consistent view that obtaining of the requisite sanction under Section 92 of the CPC against proposed defendant for any such additional relief is a condition precedent. In that view of the emerging legal position, the decision of Allahabad High Court in Janki Prasad's case, supra, striking a somewhat divergent view will not be of much help to the plaintiffs' case herein.
Hence, both these revisions are allowed and the impugned common order dated 22-7-1996 of the Court below made allowing plaintiffs' I.A. 8 and I.A. 11 are set aside and the said applications are dismissed. Parties to bear their own costs in the circumstances.