Karnataka High Court
Kum Meenakshi vs Smt H Nagarathnamma on 21 July, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2023:KHC:25436
WP No. 59143 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO. 59143 OF 2016 (GM-CPC)
BETWEEN:
1 . KUM. MEENAKSHI,
D/O LATE ANNEGOWDA,
AGED ABOUT 47 YEARS,
R/AT KERAGODU VILLAGE AND HOBLI,
MANDYA TALUK - 571 446.
2 . KUM. SATHYA,
D/O LATE ANNEGOWDA,
AGED ABOUT 45 YEARS,
R/AT KERAGODU VILLAGE AND HOBLI,
MANDYA TALUK 571 446.
3 . KUM. PAVITRA,
D/O LATE ANNEGOWDA,
AGED ABOUT 35 YEARS,
R/AT KERAGODU VILLAGE AND HOBLI,
MANDYA TALUK 571 446.
...PETITIONERS
Digitally signed by [BY SRI. V.S.HEGDE, ADVOCATE (PH)]
GEETHAKUMARI
PARLATTAYA S AND:
Location: High Court 1 . SMT. H. NAGARATHNAMMA,
of Karnataka
W/O LATE ANNEGOWDA,
AGED ABOUT 69 YEARS,
2. SRI. K. SHASHIDHARA,
S/O LATE ANNEGOWDA,
AGED ABOUT 51 YEARS,
BOTH ARE R/A KERAGODU VILLAGE
AND HOBLI, MANDYA TALUK 571 446.
3. SMT K. LALITHA,
D/O LATE ANNEGOWDA,
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WP No. 59143 of 2016
AGED ABOUT 49 YEARS,
R/AT CHANNASANDRA VILLAGE,
GORVANAHALLI HOBLI, MANDYA TALUK 571 446.
4. SRI. C.B. PUTTASWAMY,
S/O BORAIAH,
AGED ABOUT 60 YEARS,
R/AT DODDABANASAVADI VILLAGE,
KERAGODU HOBLI, MANDYA TALUK 571 446.
5. SRI. LINGEGOWDA,
S/O MINNE PANCHEGOWDA,
AGED ABOUT 70 YEARS,
R/AT MARALINGANADODDI VILLAGE,
KERAGODU HOBLI, MANDYA TALUK 571 446.
6. SRI. M.P. SHANKARALINGU,
S/O M.L. PANCHALINGEGOWDA,
AGED ABOUT 50 YEARS,
R/AT MARALINGANADODDI VILLAGE,
KERAGODU HOBLI,
MANDYA TALUK 571 446.
7. SRI. CHANNAIAH,
S/O SIDDEGOWDA @ KUMBALAPPA,
AGED ABOUT 60 YEARS,
R/AT DODDABANASAVADI VILLAGE,
KERAGODU HOBLI,
MANDYA TALUK 571 446.
8. SRI ANNEGOWDA
S/O MINNE PANCHEGOWDA,
AGED ABOUT 69 YEARS,
R/AT MARALINGANADODDI VILLAGE,
KERAGODU HOBLI, MANDYA TALUK 571 446.
SINCE DECEASED:
8(a) SMT. BHAGYAMMA,
W/O LATE ANNEGOWDA, AGED ABOUT 65 YEARS,
SMT. SUMATHI,
8(b) D/O LATE ANNEGOWDA, AGED ABOUT 38 YEARS,
8(c) SRI. PANCHALINGEGOWDA,
S/O LATE ANNEGOWDA, AGED ABOUT 38 YEARS,
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WP No. 59143 of 2016
ALL ARE R/AT MARALINGANA DODDI VILLAGE,
KERAGODU HOBLI, MANDYA TALUK,
MANDYA DISTRICT 571 446.
9. K.C. RAMAKRISHNA,
S/O CHIKKALINGAIAH, MAJOR,
R/AT KERAGODU VILLAGE AND HOBLI,
MANDYA TALUK 571 446.
10 . SRI. B.C. NAGARAJU,
S/O CHIKKALINGEGOWDA, MAJOR,
R/AT PANCHEGOWDANADODDI VILLAGE,
KERAGODU HOBLI,
MANDYA TALUK 571 446.
11 . SMT. SANNAMMA,
W/O CHIKKELINGEGOWDA,
MAJOR, R/AT KALMANTIDODDI VILLAGE,
KERAGODU HOBLI, MANDYA TALUK 571446.
SINCE DECEASED :
11(a) PUTTASWAMY,
S/O LATE CHIKKALINGEGOWDA,
AGED ABOUT 58 YEARS,
11(b) RAJU, S/O LATE CHIKKALINGEGOWDA,
AGED ABOUT 56 YEARS,
11(c) SHANKARA, S/O LATE CHIKKALINGEGOWDA,
AGED ABOUT 54 YEARS,
11(d) RAMA S/O LATE CHIKKALINGEGOWDA,
AGED ABOUT 52 YEARS,
ALL ARE R/AT KALMANTI DODDI,
KERAGODU HOBLI, MANDYA TALUK,
MANDYA DISTRICT - 571 446.
(CAUSE TITLE IS AMENDED AS PER THE C/O DATED 22.11.2018
INSERTING RESPONDENTS NO.11(a) TO 11(d) IN THE CAUSE TITLE)
...RESPONDENTS
[NOTICE SERVED TO R1, R2 & R9 & UNREPRESENTED;
SRI. K. VISHWANATHA FOR R3; SRI. B. RAVINDRA PRASAD, ADV,
FOR R4 TO R7, R10 & R8 (a to c) (PH); NOTICE STANDS DISMISSED
TO R8 (b) V/O DATED 30.08.2021; SRI. L. RAJA, ADV FOR R11 (a-d)
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WP No. 59143 of 2016
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 17.10.2016 PASSED BY THE PRL. SR. CIVIL JUDGE AND CJM
AT MANDYA ON I.A.20 FILED UNDER ORDER VI RULE 17 OF CPC IN
O.S.199/2007 AT ANNEX-A AND CONSEQUENTLY ALLOW THE ABOVE
SAID APPLICATION AND ETC.,
THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Challenging order dated 17.10.2016 passed by Prl. Senior Civil Judge & CJM, Mandya, on I.A.no.XX filed under Order VI rule 17 of CPC, in O.S.no.199/2007 as per Annexure-A, this writ petition is filed.
2. Sri V.S. Hegde, learned counsel for petitioner submitted that petitioners are plaintiffs in O.S.no.199/2007 filed for partition and separate possession of their share in suit properties. It was submitted that after entering appearance, respondents/defendants filed written statement opposing suit. Thereafter trial Court framed issues and parties went into trial. At that stage, plaintiff herein filed I.A.no.XX under Order VI rule 17 r/w Section 151 of CPC for amendment of plaint by way of addition of pleadings. Though, in affidavit filed in support of application, it was stated that when matter was posted for cross-examination of defendants' witnesses, while searching for -5- NC: 2023:KHC:25436 WP No. 59143 of 2016 documents, plaintiffs traced certain documents executed by defendants in favour of plaintiffs' father. Contents of said documents revealed that there were no sale transaction between plaintiffs and defendants. It was in fact only a loan transaction, therefore, contention of defendants that they were bona fide purchasers would be incorrect. It was further stated that plaintiffs were not aware of contents of documents until tracing of same. As they revealed nature of transaction between defendants and plaintiffs' father as loan transaction, and said factor would be material for proper determination of dispute between them, allowing of application for amendment was necessary.
3. It was further submitted that contention of defendants in their objections filed to application, it was stated that application was filed after nine years of filing of suit, was intended to overcome admission about nature of transaction until then contended to be sale transaction. But now sought to be contended as loan transaction would amount to introducing new cause of action and also that application for amendment of pleadings was filed without challenging order rejecting -6- NC: 2023:KHC:25436 WP No. 59143 of 2016 application for production of document namely, alleged 'oppige patra', and therefore, not maintainable.
4. On consideration, trial Court passed order impugned herein rejecting application for amendment on wholly untenable grounds. It was submitted that one of reasons assigned namely that application was filed after delay of 09 years would be contrary to decision of Hon'ble Supreme Court in Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Anr.1, wherein it is laid down that all applications for amendment ought to be considered liberally, and unless additional prayer sought were to be barred by limitation or filed to overcome admission or with malafide intention etc.
5. It was submitted that plaintiffs had very clearly pleaded that their father was addicted to bad vices and might have transacted with defendants without legal necessity of joint family and had in fact, went into trial based on said contention, upon discovering material which would indicate that it was only loan transaction, seeking for amendment was necessitated. It was submitted that Hon'ble Supreme Court had held that mere 1 2022 SCC OnLine SC 1128 -7- NC: 2023:KHC:25436 WP No. 59143 of 2016 delay in filing application for amendment would not be a ground for rejection and unless relief based on proposed amendment were already time barred, amendment was to be granted. Therefore rejection of application was wholly untenable and called for interference.
6. On other hand, Sri. B. Ravindra Prasad, learned counsel for respondents no.7, 10 and respondents no.8 (a) to
(c) submitted that suit was filed in year 2007 and application for amendment was filed in year 2016, after nine years that too after adducing evidence. Therefore, it was rightly rejected by trial court. It was further submitted that plaintiff had admitted about transaction between plaintiffs' father and defendants being sale transaction. However, in amendment, it was sought to be contended as loan transaction, thereby changing nature of suit. It was also contended that amendment was sought after suffering order of trial Court rejecting application for production of 'oppige patra', which was basis for seeking amendment. Therefore, rejection of application was justified and did not call for interference.
7. Heard learned counsel and perused writ petition record.
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8. From above submission, it is seen that in a suit for partition and separate possession, plaintiffs are also seeking for declaration against transactions between defendants and plaintiffs' father. Said relief is on ground that their father was given to bad vices and defendants were likely to have got him to execute documents, without there being legal necessity.
9. On other hand, defendants claimed to be bonafide purchasers. It is not in dispute that both parties went to trial based on above contentions.
10. While plaintiffs claim that during evidence of defendants, they stumbled upon certain documents allegedly executed by defendants which would establish that transaction between them and plaintiffs' father was a loan transaction and therefore, amendment of pleading to incorporate same in pleadings was necessary to bring out real dispute between parties and rejection of application for amendment was therefore not justified.
11. But, defendants contend that amendment sought was belated, designed to overcome admission and introduce different cause of action and therefore rejection was justified. -9-
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12. On perusal of impugned order, it is seen that trial Court rejected application mainly on ground of delay and additionally on ground that plaintiffs had not disclosed when and how they came to know about transaction.
13. Insofar as application for amendment, Hon'ble Supreme Court in Life Insurance Corporation of India's case (supra) has held as under:
70.(i) xxxxx
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed:
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided:
(a) 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).
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(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) amendment changes nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(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.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(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 liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(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.
(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, amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint,
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(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. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)"
14. In view of above, all applications for amendment were required to be considered liberally, without considering merits of amendment sought for except where relief sought would be time barred. It is also cautioned that amendments which would result in changing nature of suit or cause of action or where application filed was malafide. It is also observed that mere delay in filing application would not be a ground for denying amendment and where it is sought for bring out real controversy, it was to be allowed.
15. In instant case, plaintiffs/applicants have clearly pleaded that they were unaware about nature of transaction
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16. Bare perusal of plaint would not prima facie reveal any admission about nature of transactions between plaintiffs' father and defendants. Therefore, there is no merit in contention that amendment was designed to overcome admission. In view of pleading about plaintiffs' being unaware about nature of transactions, amendment sought after discovery of new material cannot be stated to be changing nature of suit or cause of action. In fact, it would bring real controversy between parties to fore.
17. Even in case, there was any admission, it would be open to plaintiffs to offer explanation about circumstances under which said admissions were made, which right cannot be denied to them. In view of above, order impugned would be contrary to law and unsustainable.
18. Hence, writ petition is allowed. Impugned order dated 17.10.2016 passed by Prl. Sr. Civil Judge & CJM at Mandya, on I.A.no.XX filed under Order VI rule 17 of CPC, in O.S.no.199/2007 as per Annexure-A, is set aside. I.A.no.XX
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NC: 2023:KHC:25436 WP No. 59143 of 2016 stands allowed. Petitioners to amend plaint and file amended plaint, within period of 14 days from date of receipt of certified copy of this order or from next date of hearing in suit, whichever is later.
Since suit is of year 2007, plaintiffs are directed to conclude leading of evidence on amendment sought for, as far as possible within period of two months from date of framing of additional issue/s by trial Court.
Thereafter both parties are directed to cooperate for early disposal of suit without seeking unnecessary adjournments.
Sd/-
JUDGE PSG/GRD