Karnataka High Court
Sri Mohanji vs Smt. S Shilpa on 27 September, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
W.P.No.12200/2023 (GM-CPC)
BETWEEN:
SRI S MURALIKRISHNA
S/O LATE R SHIVASHANKAR
AGED ABOUT 38 YEARS
R/AT NO.403, 17TH CROSS
BEML LAYOUT
BASAVESHWARANAGAR
BENGALURU-560 079.
...PETITIONER
(BY SRI. V R SADASHIVA REDDY, SR. COUNSEL A/W
SRI J.M. RAJANNA SHETTY, ADV.)
AND:
1. SMT. LAKSHMI
W/O LATE R SHIVASHANKAR
AGED ABOUT 42 YEARS
R/AT NO.8, 1ST MAIN ROAD
KRISHNAPPA BUILDING
KAREKALLU, KAMAKSHIPALYA
BENGALURU-560 079.
2. SMT. S SHILPA
W/O SRI HARISHKUMAR
AGED ABOUT 30 YEARS
R/AT NO.403, 17TH CROSS
BEML LAYOUT
BASAVESHWARANAGAR
BENGALURU-560079.
....RESPONDENTS
2
(BY SRI. D.L. JAGADEESH, SR.COUNSEL A/W
SRI OMRAN KHAN, ADV. FOR R1
SRI H.N. DIVYA TEJ, ADV. FOR
SRI R KOTHWAL, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 03/06/2023 PASSED ON IA NO.19 ON THE FILE OF
XII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-27)
BENGALURU IN O.S.NO.5335/2014 VIDE ANNEXURE-H.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 13/09/2023 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, defendant No.1 in O.S.No.5335/2014 on the file of the XII Additional City Civil and Sessions Judge at Bengaluru City (CCH-27), Bengaluru (for short, 'Trial Court') is before this Court against order dated 03.06.2023 allowing I.A.No.19 filed under Order VI Rule 17 of CPC to amend the plaint to include additional averments as well as to add additional prayer.
2. Heard the learned senior counsel Sri.Y.R.Sadasiva Reddy for Sri.J.M.Rajanna Shetty, 3 learned counsel for petitioner/defendant No.1, learned senior counsel Sri.D.L.Jagadeesh for Sri.Omran Gulam Ahmed Khan, learned counsel for respondent No.1/plaintiff and learned counsel Sri.H.N.Divya Tej, for Sri.R.Kothwal, learned counsel for respondent No.2/defendant No.2. Perused the writ petition papers.
3. Learned senior counsel for the petitioner/defendant No.1 would submit that suit of the respondent No.1/plaintiff as originally filed was for partition of suit schedule properties and to allot 1/3rd share in the suit schedule properties and for accounts. It is submitted that the petitioner/defendant No.1 filed written statement. Learned senior counsel would submit that during pendency of the suit, the parties to the suit i.e., plaintiff and defendant No.1/petitioner herein entered into settlement and accordingly, plaintiff- respondent No.1 executed registered release deed in favour of the petitioner/defendant No.1 by agreeing to 4 receive a sum of Rs.3.5 Crores and the respondent/plaintiff received a sum of Rs.30,00,000/-. It was agreed that Rs.2 crores will be payable within 2 years from the date of registered release deed and as a guarantee for payment of the said amount, five sites were given to first respondent/plaintiff, which are valued more than Rs.2 Crores. It is also submitted that the respondent No.1/plaintiff has also agreed to withdraw the suit and other proceedings. It is submitted that the respondent No.1/plaintiff having accepted five sites, executed registered gift deed in respect of the said five sites gifting the same to her mother under registered gift deed dated 17.10.2019.
4. Learned senior counsel would submit that suit is at the stage of cross-examination of PW1, which means trial has commenced. At that stage, respondent No.1/plaintiff has filed I.A.No.19 to amend the plaint to include additional averments as well as to add additional 5 prayer seeking declaration that the document obtained by defendant i.e., petitioner herein in the name of release deed dated 26.07.2019 and rectification deed dated 31.10.2019 and also gift deed dated 17.10.2019 executed by respondent No.1/plaintiff in favour of her mother are void and unenforceable. It is contended that the respondent No.1/plaintiff is not entitled to seek declaration of release deed dated 26.07.2019 since the same is acted upon by plaintiff by receiving part of the amount as well as receiving five sites as guarantee to the balance amount and also the execution of gift deed by plaintiff herself in pursuance to the release deed. Moreover, learned senior counsel would submit that to challenge the gift deed dated 17.10.2019, mother of plaintiff in whose favour the sites are gifted is not party to the suit. Learned senior counsel would further submit that the plaintiff will have to file separate suit seeking appropriate relief based on release deed dated 6 26.07.2019 and it is not open for the respondent No.1/plaintiff to challenge the said release deed in the present partition suit. Learned senior counsel would submit that allowing of amendment application would change the nature of the suit and amendment sought to include additional prayer is on a different cause of action. Thus, he prays to allow the writ petition and to reject I.A.No.19 for amendment.
5. Per contra, learned senior counsel Sri.D.L.Jagadeesh would support the order passed by the Trial Court and would submit that additional prayer sought is relatable to partition. Since the respondent No.1/plaintiff was entitled for share, the petitioner/defendant No.1 had come forward to settle the dispute by offering to pay a sum of Rs.3.5 Crores, which the petitioner failed to pay. It is submitted that release deed was executed agreeing to pay Rs.3.5 Crores and as a guarantee, five sites were given, which 7 is non-existent. Therefore, respondent No.1/plaintiff had no other choice but to challenge the same in the pending suit itself. Learned senior counsel would submit that since release deed is in respect of the plaintiff's claim in the suit, as such challenge to the same is not on new cause of action or it would change the nature of the suit. Learned senior counsel would submit that Trial Court rightly allowed the amendment application to challenge the release deed and gift deed to avoid multiplicity of proceedings. Thus, it is prayed for dismissing the writ petition.
6. Both the learned senior counsel appearing for the petitioner as well as first respondent placed reliance on the decision of the Hon'ble Apex Court in the case of GANESH PRASAD VS. RAJESWHAR PRASAD AND OTHERS1 in support of their respective contentions. 1 2023 SCC OnLine SC 256 8
7. Learned counsel Sri.H.N.Divya Tej for respondent No.2/defendant No.2 would submit that amendment application filed when the suit was at the stage of cross-examination of PW1 would not be maintainable and further he submits that plaintiff and defendant No.1 could not have partially compromised the suit claim, leaving out defendant No.2.
8. On hearing the learned senior counsel appearing for parties and on perusal of the writ petition papers, I am of the considered view that the Trial Court is justified in allowing I.A.No.19 for amendment insofar as challenge to the release deed dated 26.07.2019 and rectification deed dated 31.10.2019, but committed an error permitting amendment to include challenge insofar as gift deed dated 17.10.2019 executed by petitioner in favour of her mother.
9. Order VI Rule 17 of CPC provides for amendment of pleadings. In terms of the said provision 9 the Court may at any stage of the proceedings allow either of the parties to alter or amend pleadings in such manner and on such terms, as may be just and necessary for the purpose of determining real questions in controversy between the parties. But the proviso to Rule 17 puts restriction on the Court, while considering amendment application after commencement of trial. If the amendment sought is after commencement of trial, unless the Court is satisfied with regard to due diligence, that the party could not have raised the matter before commencement of trial, the Court would not get jurisdiction to allow such application.
10. The Hon'ble Apex in the case of RAJESH KUMAR AGARWAL AND OTHERS v/s K.K.MODI AND OTHERS2 was considering a case of amendment under Order VI Rule-17 of CPC and at paragraphs 15, 18 and 19 has held as follows:
2
(2006) 4 SCC 385 10 "15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to subserve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of 11 amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."
11. The Hon'ble Apex Court in STATE OF MADHYA PRADESH V/S. UNION OF INDIA3 has held that amendment cannot be claimed as a matter of right and the Courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule and normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 3 (2011) 12 SCC 268) 12
12. In GANESH PRASAD (supra), the Hon'ble Apex Court was considering an appeal arising from an order passed on an application filed under Order VI Rule 17 of CPC and it is held that all amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the suit, provided that the proposed amendment does not alter or substitute a new cause of action. Relevant paragraphs 37 and 38 reads as follows:
"37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the 13 suit provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.
38. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings."
13. In the case on hand, the respondent No.1/plaintiff filed suit originally for partition and to allot 1/3rd share and to furnish accounts in respect of rents collected. Admittedly when the suit was at the stage of PW1's cross-examination, respondent No.1/plaintiff and defendant No.1/petitioner herein entered into compromise and in turn, plaintiff executed registered release deed dated 26.07.2019 releasing her right over the suit schedule property agreeing to receive a sum of Rs.3.5 Crores, out of which the plaintiff said to have 14 received Rs.30 Lakhs and as a guarantee to the balance amount, five sites given by defendant No.1 described in 'A' schedule to the release deed dated 26.07.2019. Thereafter, plaintiff is said to have executed registered gift deed dated 17.10.2019 in favour of her mother gifting the said five sites said to have been received by her under release deed dated 26.07.2019. It is the case of the plaintiff that the defendant No.1/petitioner herein has not honoured the commitment under release deed and five sites given are non-existent sites.
14. I.A.No.19 was filed when the suit was at the stage of cross-examination of PW1 to add additional averment with regard to out of Court settlement and execution of registered release deed dated 26.07.2019 and also to add additional prayer to declare the registered release deed dated 26.07.2019, registered rectification deed dated 31.10.2019 and registered gift deed dated 17.10.2019 as void and unenforceable. The 15 proposed amendment insofar as to include additional prayer reads as follows:
"D(1). To declare that the documents obtained by the 1st defendant in the name of Release Deed dated 26.07.2019 which is registered at the office of Sub-Registrar Rajajinagar (Yashwanthpur), Bangalore in vide document No.YPR-1-02030/2019-20 at Book I, stored in CD No.YPRD352, dated 26.07.2019 and Rectification Deed dated 31.10.2019, which is also registered at the office of Sub-Registrar Rajajinagar (Yashwanthpur), Bangalore in vide document No.YPR-1-03528/2019-20 at Book 1, stored in CD No.YPRD420, are all void documents, created and obtained by the Sub- Registrar Rajajinagar (Yashwanthpur), Bangalore in vide document No.YPR-1-02030/2019-20 at Book 1, stored in CD No. 1PRD352, dated 26.07.2019 by producing false and frivolous documents and those documents are executed by the Sub-Registrar Rajajinagar (Yashwanthpur), Bangalore in vide document 16 no. YPR-1-02030/2019-20 at Book 1, stored in CD No. YPRD352, dated 26.07.2019 only with an intention to escape from his liabilities and to grab the share of this plaintiff and therefore, there is no any legal sanctity for those documents as those documents are only for non- existing properties. Hence, same are not coming in the way of claiming 1/3 share of this plaintiff on the suit schedule properties. Consequently, the Gift Deed dated 17.10.2019 is also became void and unenforceable."
15. The proposed amendment to include additional prayer to declare the registered release deed dated 26.07.2019 and rectification deed dated 31.10.2019 would be in continuation of relief of partition. Release deed by way of compromise was out of Court settlement. The registered release deed dated 26.07.2019 was executed by plaintiff/respondent No.1 herein relinquishing all her rights upon the properties mentioned in the 'B' schedule to the registered release 17 deed i.e., 1/3rd share. Further, the plaintiff had also agreed to withdraw the suit O.S.No.5335/2014. Therefore, allowing of additional prayer for declaration of registered release deed dated 26.07.2019 and rectification deed dated 31.10.2019 are void and unenforceable, would not change the nature of suit nor would it be on different cause of action. It relates to the partition of properties among parties to the suit. Apart from the above, instead of allowing the plaintiff to file one more suit which plaintiff is not prevented from filing, permitting amendment, would prevent multiplicity of proceedings among the parties. The main object and purpose of providing amendment of pleadings is to prevent multiple litigation. The real controversy between the parties in the present case is partition and the release deed in question relates to partition. Therefore to the said extent, the Trial Court is justified in allowing amendment application.
18
16. The Trial Court committed an error in allowing amendment insofar as challenge to registered gift deed dated 17.10.2019 executed by plaintiff in favour of her mother in respect of five sites received by plaintiff under registered release deed 26.07.2019. To a Court question to learned senior counsel Sri.D.L.Jagadeesh as to how the plaintiff could seek such an amendment that too, document executed by the plaintiff herself, learned senior counsel had no answer.
17. For the reasons recorded above, the following:
ORDER
1) Writ petition is allowed in part.
2) Impugned order dated 03.06.2023 on I.A.No.19 in O.S.No.5335/2014 on the file of the XII Additional City Civil and Sessions Judge (CCH-27), Bengaluru 19 allowing amendment insofar as additional averments and prayer with regard to declaration to declare registered release deed 26.07.2019 and rectification deed dated 31.10.2019 as void and unenforceable, is confirmed.
Insofar as allowing amendment to
challenge registered gift deed dated
17.10.2019 executed by plaintiff in
favour of her mother is set aside.
SD/-
JUDGE
NC.
CT:bms