Karnataka High Court
M/S Electronics And Controls A ... vs The Karnataka Industrial Area ... on 6 August, 2010
Equivalent citations: 2010 (4) AIR KAR R 519, AIR 2011 (NOC) (SUPP.) 1061 (KAR)
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE em DAY OF AUGUST ~2£'}:i'_€)_:, ~
BEFORE
THE HON'BLE MR. JUsTIOE~n.RA*,
WRIT PETITION No.90 OE ETOO8 1'
BETWEEN :
M/S. ELECTRONICS AND C_ON"fROLS,
A PROPR1ETAR'¥__CON<--=:EE.N "OF WHI_CH
LATE MR. K. RAMACHANDRA _1Y.1«:R WAS
THE PROPRIETOR,m1?REs,E1~IT,ED..};";Y
HIS LEGAL .REPRESE1\JTA'FIVES' ~ '
(a) S_M'I': 4sz;Iz>IDARI "':MACHA_NDRAN.
(to) Ms. \v'1DYA"'{YER.,ij> * '
(q1'_MS~.V.,DIV:«tA, KER, ' '
;(c1) SMTI} K. I*%ATI'A1\.aAI,,
ALL. RES1D'Ii\IG AT.NO..54'7, III MAIN
IIICROSS', II BLOCAK~,«R.T. NAGAR,
BANGALOE-560 032.. '
" . ...PE'I'ITIONER
(By Sn'. Naganand, Senior Counsel for
_ M Sundaraswamy Ramdas and
_ P.~f1a,;Td3 Advocates}
KARNATAKA INDUSTRIAL
AREA DEVELOPMENT BOARD,
A' ' ~._A GOVERNMENT OF' KARNATAKA
UNDERTAKING, NO.l4/3, II FLOOR.
R.P. BUILDING, NRUPATHUNGA ROAD,
BANGALORE-560 O52.
REPRESENTED BY ITS EXECUTFV E MEMBER
2 S.B. PRDEEP,
S/O H.S. BHAKTHAVATSALA.
AGED ABOUT 47 YEARS,
PROPRIETOR,
M/ S. PRADEEP INDUSTRIES,
NOA53, 15'? FLOOR, 11TH CROSS,
SADASHIVANAGAR,
BANGALORE 560 080.
~ S .. T? .
{By Sri. Padubidri Ragiiayendrsfééo, Cpuriisetl
for Sri. M. Madhvac'h.ai*,sAdv., for
Sri.B.Srinivas, Adv., fer R51) '
This Writ Petitien"'i«~s fi-i_ed,11i1i:3_.er_ Articles 226 and 227
of the Constitution of Iridia priiyingtitofiset. aside the Order
dated 3.8.2007VpassedV_byV..the XXVH Additional City Civil
Judge, (CCH--9_]: Bang;ai0re'~ 23:14 'Issue 'N94 with respect to
limitation Vide A:;11ex.J-. an'-d"dismiss* th-evsuit.
This ib'ee1i"ghSeard and reserved for
orders-comjing on, for'-pi'-on0uneerr1ent of orders, this day
the Court _rria;de_AVti1e foiieyving:
\}fgRDER
'In. this V"s\>.tiji:tV'petition order dated 3-8-2007 passed
S.'i11_,VStJ.S'.i$IQ--;22Ei8/1996 by the 27th Additional City cm:
[Annexure--J) by answering issue No.4
h0i"Clii1g:Jt'ria1t suit is not barred by limitation, is
V' izripiigiied herein. V
2. The brief facts leading to filing of the writ
petition are as under; it 9
Respondent No.2 herein was
site by the first respondent Development Board (hereinafter 'Board' for brevity) and actualij'vposVséssion of the industrial site vbypxissuing.possession'"certificate in the year 1988. said to have allotted the 3 petitioner herein in 1990 i13iiiJ€§'i"eXeicuted lease cum--sale agreerr1ein'teAi.ri. favour _of..itl1e petitioner in 1994. ReSpondent""..ip' has filed a suit O.$;.Noi..22Ei8'/..1i996 lgaefore the City Civil Court initially of permanent injunction and later on an app_Iic'ati"o.n filed to incorporate the prayer to declare that respondent is the confirmed allottee of the industrial site and as such entitled to possession of the tsiuitiiischeduie land, which order was questioned by the "petitioner herein before this Court in CRP &/.
No.2203/1999 which came to be dismissed on 7~_,'3"--2000 and aiso confirmed in SLP (Civil) No.11682/2a0'D-dpidated 21~8--2000. The trial Court framed it was recasted. The petitioner "filed considering issue No.4 limitation and Valuation'respectirely V issues and after considering""the:'t1rgu_rnents'"adiianced by the parties trial to lead evidence or} by the same, petitioner? in CRP 711/2001 against' dated 29-1-2001 directing on all issues. This Court by order dated'..1'3--A1--120.01 has directed the parties to "V-.leadll:ev<ideI'1ce onisstie No.4 and 6 and directed the trial Court issue No.4 and 6 and thereafter proceed to *--consider' other issues. In so far as issue No.6 "*regardin§gva1uation, the plaintiff i.e., second respondent who was directed to pay additional court fee
-urlsuccessfully challenged the order of the trial Court M before this Court in W.P.No.5035/ 2005 and on dismissal of the writ petition on 2l~10--2006 stated that additional Court fee has been paid. it "C n
3. The trial Court on rrisihim 'rggarqirig 5 limitation had framed anissue4'asil""Wheth'er..the barred by limitation period'?
4. After consid'ering'--_riV5taT. eofnteiitions trial Court held that the suit fi1e"ti"is.fwitl1in_the {germ of limitation by order .dfittCCl:::g"3~8-l2(?1C?. Iitvislthis order which is impugned' ;;p_If€ petition.
C' .lHeardl.."f.S1'i,.VS;$l.Naganand, learned Senior Counsel lliappeiari;ng"r_iforil petitioner and Sri.Padubidri ' _ Ragliiaffendra Rao;"'iearned Senior Counsel appearing for _ 1*espond.erit;' "
6.," 'I-raving heard the learned Counsel for the pa,.rjties;"'i;ollowing points arise for my consideration:
C "If Whether the trial court was correct in holding that the suit is not barred by limttatiori by by respondent No.1 by issuance of possession certificate and thereafterwards lease cum sale agree1ne:n:t- _ A4 is executed in its favour on 28. 12. respondent filed a suit 0 j 29.03.1996 on the file of the City:
against the Board and the the relief 0 of perpetual injunctizon. Tlierieafteiwgrdtstari 'application was filed seeking the prayer for deolarationrgppon two months from statement by the petitioner'Athereihwp' o.psit"Ne;t22e8/1996. The said applioationVcarrfieiftoi'benirmbered as I.A.No.3 and same was .. resis'ted'~Vby petitioner herein and on pco'r1sid_"era'tion of 'arguments. trial court by its order allowed the appiication I.A.No.3 for ariiendrrxentt. The said order came to be questioned by the petitioner herein in CRP.No.2203/1999 which after 0' .:cVo11t0est came to be dismissed by order dated 07.03.2000 " '-{VAnneXure R8]. Aggxjieved by the same the petitioner M herein preferred a Special Leave Petition to the __} ion'ble Supreme Court in SLP[CiVil}.No. 1 1682 / 2000 'also came to be dismissed by following order: it it A "The petitioner is given liberty to A ground at an appropriate ~'stéige* disposal of the main suit V liberty as aforesaid tfie..SpecialVLe(:ive: Petition is dismissed/'V 'V me) Thus, the order of Zsmeridfiientl allowed by trial court had = In anojilielr-'be noticed by this Court is application for grant of temporary-wi.njunetion the suit at the time of filing the and said abpiication came to be dismissed by order and it was confirmed by order of this « in MFA.No.3394/1997 on 10.07.1999.
'The order has reached finality.
10. As observed herein above on 19.08.2000 the 0' "trial Court had framed issues and relevant issue for $9/' consideration of rival contentions in this writ petition is issue No.4 which reads as under:
"-4) Whether the suit is barred limitation perio_¢J:l?'f_i
11. An interlocutory by the petitioner herein requ'estinigiV' the Co"urt-ivto"dispose of issues No.4 as The said appiicatlon though by the plaintiff i.e., first on consideration of rival application by order that issues No.4 and 6 is to beheard issues. Thereafter triai court passed order: on 29.01.2001 directing the 2 it - parties'etovadduceiiitheir evidence on all issues. Aggrieved 29.01.2001 petitioner herein had filed 0RP.N13.'7,1:'~1Ai/2001 before this Court and after considering the contentions of both the parties, this it by order dated 13.03.2001 disposed of the " i-'revision petition by directing the trial court to decide We issues No.4 and 6 at first instance and thereafter to proceed to consider other issues.
12. Accordingly issue No.6 was taken court directed the respondent herein to the market value of the accordingly first respondent [plaintiff] is l'to°';h'avle' remitted an additional couvrtifeeg of -- in addition to the in amounting to Rs.l,'78,l25/_--. Thgugh.tsait1i _ordaf§'rA §:;at§, challenged by the second i No.5085/2004, it did result in favour of the second respondent writ petition came to be disrrlilssied on~._V2ll.1CV):.2OO6 the second respondent has Court -fee as aforesaid.
' 'l3}'_"_v».Ho;Wever, trial court while considering issue No} the same in the negative i.e., in favour of the and answered the same by holding that sgit 11 filed by the plaintiff was within the period of limitation. It is this order which is impugned in the writ petition.
14. Application for amendment of seeking relief of declaration wasfiled on and" . same came to be allowed on came to be confirrned"0V__i'n_ font' 07.03.2000 and Speeial '}:3.eti.1_;ion.filedpagiainst this order came to be is not in dispute. It the learned Senior Counsel is allowed it relates __'which it was allowed and not the date. thetffapplication. In support of this proposi.tion relied upon the judgment of the Court in Tarlok Singh vs. Vijay reported in 1996(8) sec 367, wherein it has been held as follows:
if 'iTi1e question is: as to when the limitation 0 began to run? In view of the admitted position that the contract was to be performed 4% within 15 days after the iryunction was vacated, the limitation began to run on
06. 04.1986. In view of the position thatv~t..hLe_:0'0'-..
suit for perpetual iryunction was coriverted:
into one for specific performance"_'b:y-.:.order 88 dated 25.08.1989, the sL;it""ni-ust the A to have been instituted an the suit was clearly barred ..litnitaiio'ri..\:r/..,
15. On the basis orFpaf1e:p1ee eneeeaiee in the above decision it v.:Sri_.Naganand that when same iS_:app1ied"'t§ case he would contend was allowed on t the date of allowing the ainendrnent under Article 58 of Liniitat'ion since lease cum sale deed had
8 .executed_ by the first respondent in favour of the H 'petitione'rfori=hV.'?.8.12.1994. Thus, reckoning the period of iimitation of 3 years from the date of execution of A tease cum sale agreement the suit had become time harred and as such he would submit that issues framed CV regarding limitation ought to have been held the affirmative and suit ought to have been dismissjed:;j'«.._l"i«_'
16. At this juncture it would be extract the judgments of the relied upon by the 1earne_d Ctounsel for':
respondent, which are as under:
1) 2002 (4)KCCR 2839 _ V _ p Sampath Kumar Another wherein it h;as'been held "Ant. incorporated relates "'da'te:"-of However, the "back in the context of arne4_nd.rnent".Vp'of'::""ple.adings is not one of ' *11AniVtersval"'application and in appropriate Cases' the """ "Court is Competent while _ an amendment to direct that the ' permitted by it shall not relate biackdto the date of the suit and to the extent a penriitted by it shall be deemed to have been brought before the Court on the date of which the application seeking the M amendment was filed."
2) AIR 2001 SC 2896 7 Siddalingamma and another vs. Mamtlnz "On the doctrine of relation generally governs amendment' unless for reasons the applicability of the rioctrine._in' a giv'en it the petition for evictionras amended be deemed to have originally as such and shsiii,AV:lhave to be appreciated in. ~t'hh.e::- _ ' ;" averments made The High Court :s'et'j'.-iaside 'order of the trial is vlVritvl1arger- itom the framing of Court, especially the plortions extracted from the ._ordei" the Court and reproduced in earlier hpartwof this judgment, that the .1:e'ar'>ned Single Judge of the High Court also _n'o;t"'serious1y doubting the genuiness of t__l1e.VCAIEandlady's requirement on the material " aylailable on record but was not feeling it happy with the contents of the eviction A petition as originally filed an over--zealous attempt on the part of the landlady in we projecting her sister's sons and granpdf children as her own."
17. In the background of the principles by their Lordships in the above.',_ i T Kumar and Siddalingarmna extract the order dated'-v:l:'4&O6.ilV.99Q the present case i.e., allowirié I.A.No.3 i.e., application filed Order 6 Rule 17 of Code §of":fCi<ril plaintiff had sought for the prayer for reads as under:
1 it A under Order 6 Rule 17 Codellllofflivil Procedure by the plaintiff edilowed. The plaintiff is hereby to carry out the amendment in of I.A.No.3.
.. l8: A bare reading of the above order would reveal application has been allowed without any it -"coriditions imposing on the plaintiff and it is an order in W/.
sirnpliciter allowing the application. There is no specific direction restricting the prayer to be incorporatedfrom a particular date. The order allowing l.A. that it shall come into effect from the datep.preserit.iri-gp the plaint or it would be effectixfe date. As held by the Hon'-bl'e-- Apeii Siddalingan1Ina's case" allowed to be incorporated it relates date of the suit and the doctrine of relation not get excluded in the instant ;e'ase..sin'ce therellislfio such restrictive order:v'dV"pVasslevdV while allowing the applicationr principle in mind when the facts are examined it noticed that present suit has Vlhbevénl filled" on and written statement was Application for amendment was filed on -l«f2f.O6.l996 which came to be allowed on l4._D6.Vi999. As contended by the learned Senior fifiounsel Sri.S.S.Naganand if the limitation is to be " AIR 2001 SC 2896 W 2009 AIR SCW 6644 i.e., Paragraph 67 which reads as under:
"67. On critically analyzing both iheirlsnglishl and Indian cases, some basic principles which ought to be taken into' conslitleiiation. allowing or rejecting thee application' ' for" V amendment.
(1) Whether the soughgt is l imperative for effective adjud'iCatiO nV'qf'the. 1 1V _ {2} «application-Iforvfarnendnient is €tlori.'a;f'ide..or'"n%ia'lafii;le:*§:
it should not cause such ._ other side which can not be adequately in terms of Refusin'g*------amendment would in fact lead to 'injustice or lead to multiple litigation; _ (5ll the proposed amendment __ ' constitutionally or fundamentally changes 1 the nature and character of the case? And it ll"-..t[6) As a general rule, the Court should it decline amendments if a fresh suit on the amendment claims would be M barred by limitation on the date of application." "
(Emphasis supplied by me)
20. In the above judgment the Court has laid down that amendment if a fresh suit _'on would be barred by 1:m1t'a£§§a1 _on'' "of the application the should not be er1tertajned.__ When,.this to the facts of the case or} 'em'erges that suit has been and application for 1996 and as on the date of filing of, even if the argument of the 1eaI*hed:'Counse1«for.the petitioner is to be accepted that ' Articiev.58;'ivs:"attracted to the facts of the case, the claim made amendment application had not become time barred and it was well Within the time prescribed A under Article 58 as on date of filing of the application for amendment. Hence, the contention raised by the es>/
-»'~n 20 learned Counsel for petitioner that the suit was barred by time cannot be acceded to and it is hereby A4
21. Insofar as the judgment of Tarlpolgl' referred to supra relied upon by" the 'learned -Ciotinselpppfor petitioner has to be held as inapplicable the present case for the folloiving reasonsi a] In the said suit for perpetual application for performance was came to be allowed on it was found that in the said casethe be performed within 15 days afte1'rr.injun'ction vacated and the limitation had from 06.04.1986 and thus, it was found ._ :lWhen""..application had been allowed it was ldeen-'iedfto have been instituted on 25.08.1989 by V " much date the claim of plaintiff had become time barred. However, the said facts are conspicuously l absent in the instant case. Q/' 21
b) Even otherwise applying the "Doctrine of relation
0) back" as held in the judgments of thevV.V:§=I.oi:.fble Supreme Court in Sampath Kumarfa.
Siddalingammas case to the.. facts"Hof"t}ie"'ca_se arrive at a conclusion that said" 7is squarely applicable to factsl of __the_1c:as'e;'sinee trial' it court has not sp'eg.:ifica.1Iy'V:..orde-red 'that..at§r1endment permitted would date of the suit. In. of placed by trial ed View that these two 'applicable to the facts of the present hp .. W H As held ._by-the.'-Ho.n'ble Apex Court in Revajeetu's "ifé'_on thewédate of filing of the application for it the claim had not become time barred, it been held that amendment requires to be .. allotved otherwise which would result in entertaining V ' ' "or examining a stale claim. a/ 23 "Para 9: Normally the title ............. ..thereof, However, primufacie, the case is in the plaintiff that he must be deeniedft) ' l possession of the property" by the}, possession certlficate as 'wel£"a:=; the order Ejfi.'<1.f allotment. "
In order to appreci_ate»v.__the coritentioh of the learned Counsel for j, necessary to extract Article"6_5 ofthe which reads as under:
Des.crip_tiof;:::yof su:it._l A vl5eriod of limitation Time from which period begins to run » tit.le';:. _
65. For _ poss'essio'n_:' of irnmovable, property any interest. therein' based on Exfp1anatieiiil:}FQr the pt-e:poses~V,Qi'lt]rxis article-
where the suit is by a " rernainderman, a 'reversioner (other than la}...
V * 4_ a landlord) or a devisee, _ the possession of the 'A defendant shall be deemed to become adverse only when the Twelve years When the possession of the defendant becomes adverse to the plaintiff 24 estate of the rernainderman, reversioner or devisee, as the case may be, falls into possession;
[b] Where the suit is by a Hindu or Muslim entitled to the 1 possession of immovable property on the death of a Hindu Muslim female, the*.._' _ possession of the -.
defendant sliallg be: . .' " ' deemed to beeomevj adverse only wh_.en_'t.he_ female _.
((2) Where 3_thef?'s_uit is by a, j V purchaser "'at'-.__a "sja1,e"~ V. "
execution Qof a decree' when a. flfthe '7? 'j11dg_{vn1ent--_""" V debtor V V ""Wa_s'Vi V .. 'Of possession' ' . _ date of {the sale,' the » .PurcliaSer» _ shall'. be deemed" xto V be a "representatiVe"'i of the _V judgrne'nt--debtor who V was o11t._o:7 possession.
" In this regard the following decisions relied tipon by the learned Counsel for second respondent is K required to be extracted which are as under:
4/ 1} AIR 1991 Kar 273 Seshumull M.Shah vs. Sayed Abdul others S V if V"
"7. The learned Counsel for they h it urged before me two subrnis"sions:§__ V S' S _ A The first submission was 117i the plaintiff was by'-liniitatiolnfiy'Thee:
suit was governed not by Art.65 of the Lim£tqti;miAcbi'jiy . Second submission' was that in the facts S the case, defendanilo. S. if t'o"the protection of "Property Act, he Vvbeir'2g.V:.purchas'er: for value without So is concerned, it 5 ' -proceeds on assumption that the suit was merely suitv for declaration of title and _ :1.oihingjelse. It is not possible to accept this In the plaint, the plaintiff has the manner in which she acquired title y "the suit lands. She then stated the facts about the necessity to appoint her son-in~law A defendant No.2 as her manager to look after her properties. She has then stated about the Q/' the courts below have held that the suit is barred by limitation. The lower appellateiit court has held that although the ~ possession based on title Could be by Art.65 of the Limitation...Act, biit'ae'_';Vthere'i.V are other ancillary reliefs' alsoz A' limitation period would be"-goivernedi. 1 Art. 65. Here the lowerrriappellate obviously gone, iurong-.-------- period in this case -be governed by Art. 65 of ibiécause the relief reggardiiig :: the Suit schediiie main relief and it lesser period of l'?..Alirrsitatiolnff-» to ancillary reliefs the main relief. When . ' » there are several? reliefs claimed in a suit, the ii.l-iniitationl would be that of the main 'vrelieflithe limitation for ancillary relief being red.' *' l ~ 'The plaintiff has claimed for declaration that a confirmed allottee of the suit schedule land as 'per the confirmatory letter of allotment dated 23 / 28-3-
éR,/ 29 RE: POINT NO: 2
26. It would be necessary to extract the judgment of this Court in CRP.No.2203/1999 wherein a Vdirection has been issued by this Court to the 07.03.2000 to dispose of the suitpurithir1"afperi0dAVof:"Sax months and the said direction'~.has"re:maiI1'ed" at The suit is of the year 1S'9_8--~.Vandh3,.4 yearshaveH}apsed.tt' and trial is yet to y_commeric'e.__on other,:iss_uées. The Hon'b1e Supreme cessemie ddisupojsing of SLP [Civil] No. 1 1682 /200:0 on 1 ;s;2d000t ' _ 'is fact reserved liberty to iierein to raise the grounds raised in CRP /*3 iejapdpropriate stage after disposal ofy4suite.so issues can be decided. As such it hen'e.(:essary to issue further direction to the triai 'tofdispose of the suit Within 3 months from today and Z to the suit are also hereby directed to nextend full co--operation in disposing of the suit as xhordered herein above within a period of 3 months from _ by ._ .. today.
30 Accordingly writ petition is dismissed. Thqorder of trial court dated 03.08.2007 is hereby confir;nefci;_:T'*'si% 500 0 " .
ca