Karnataka High Court
Mangalore Education Foundation vs Mr. Chandrahas Sirian on 24 July, 2024
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NC: 2024:KHC:29088
WP No. 27544 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 27544 OF 2018 (GM-CPC)
BETWEEN:
1. MANGALORE EDUCATION FOUNDATION
A REGISTERED TRUST,
HAVING ITS REGISTERED OFFICE AT
MANGALORE TOWERS,
ASHOKNAGARA, MANGALORE-575006
REPRESENTED BY ITS PRESIDENT
DR. RAJNEESH SORAKE,
S/O DR. AMARNATH SORAKE,
AGED ABOUT 42 YEARS,
R/A SHIVABAGH, KADRI.
...PETITIONER
(BY SRI M.R.RAJAGOPAL, SENIOR ADVOCATE FOR
SRI SACHIN B. S.,ADVOCATE)
Digitally AND:
signed by
YAMUNA K L 1. MR. CHANDRAHAS SIRIAN,
Location: S/O LATE VENKATESH,
High Court of AGED ABOUT 50 YEARS,
Karnataka R/A SULTHAN BATHERI,
URWAKALLAPUR, HOIGE BAIL,
ASHOKNAGAR POST, URWA MARIGUDI,
MANGALORE-575006,
...RESPONDENT
(BY SRI UDAYA PRAKASH MULIYA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 13.6.2018 MADE IN IA NO.2/2018 FILED UNDER
ORDER VI RULE 17 READ WITH SECTION 151 OF CODE OF
CIVIL PROCEDURE IN O.S.NO.1143/2016 PASSED BY THE
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WP No. 27544 of 2018
COURT OF THE PRINCIPAL CIVIL JUDGE AND JMFC,
MANGALORE, DAKSHINA KANNADA AND CONSEQUENTLY
ALLOW THE IA NO.2/2018 IN O.S.NO.1143/2016 ON THE FILE
FO THE PRINCIPAL CIVIL JUDGE AND JMFC, MANGALORE,
DAKSHINA KANNADA [ANNEXURE-A] AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
(PER: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI) Aggrieved by the order passed on I.A.No.2 in O.S.No.1143/2016 dated 13.06.2018 by the Principal Civil Judge and JMFC, Mangaluru, the present writ petition is filed by the petitioner.
2. The petitioner is the plaintiff in the suit. The plaintiff had filed a suit seeking a mandatory injunction directing the defendant to remove the gate fixed at "XY" across the "PPP"
road leading to the plaint schedule property and for a consequential permanent prohibitory injunction restraining the defendant from fixing the gate across the "PPP" roadway at any point leading from the plaint schedule property to the main -3- NC: 2024:KHC:29088 WP No. 27544 of 2018 road and also sought a permanent prohibitory injunction restraining the defendant from blocking the pathway. The suit is filed in the year 2016. When the matter had come up for the reply arguments of the plaintiff, the application came to be filed under Order VI Rule 17 read with Section 151 of CPC. The plaintiff has sought for the following amendment:
1. In Para III(c), Page 2 first line and second line of the Plaint delete the word "and the "PPP" road".
2. In Para III(c), Page 2 Eighth Line and Ninth Line of the Plaint delete the work "as well as the right to make use of "PPP" road".
3. In Para III(c), Page 2 tenth Line after the words Plaintiff and add the words "Karnataka Educational and Charitable trust had acquired the right to make use of the 20 feet width PPP road by virtue of a Sale Deed dated 30.03.2005 Registered as Document No.6860 of 2004-05, executed by Mizar Sadananda Pai and Mizar Shivananda Pai."
3. In support of the I.A., it is stated that the petitioner came to know that an error has crept in the narration of the facts pleaded in the plaint while the plaint was instituted before the Court below. They filed the suit hurriedly as they were seeking an injunction against the defendant who had obstructed the road approaching to the property. In the -4- NC: 2024:KHC:29088 WP No. 27544 of 2018 pleadings, they have failed to narrate about the documents, i.e., the Sale Deed dated 30.03.2005, which their vendor has acquired in respect of the road. Though the said document is marked, no pleadings were taken in the plaint as they are not going to introduce any new case and the amendment that is sought will provide value and support to the evidence that has been placed and the Trial Court can appreciate the facts put-
forth by the parties.
4. The Trial Court had dismissed the said application by the order impugned, wherein the Trial Court below has observed that when an application is filed under Order XXXIX Rules 1 and 2 of CPC, both parties have fought at the initial stage and at that time also, the same pleadings were urged by the plaintiff while putting forth his case. Later, both parties have led in evidence and the plaintiff has also cross-examined DW.1 at length. It was observed that nowhere the Court finds a due diligence which was exercised by the plaintiff in filing this application. Amended provision is harmoniously interpreted with the facts of this case, it is incumbent on the part of the plaintiff to show due diligence. In this case, the Trial Court has found that there is no due diligence on the part of the plaintiff.
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5. The Court also observed that the proposed amendment should not alter or substitute cause of action, on the basis of which the original lis was filed. The whole suit is based on the Settlement Deed executed by one Sri Krishna Moily and at the fag end of the proceedings, the plaintiff cannot plead an inconsistent plea, which varies from the previously urged pleadings and also it is the basic principle of law that the amendment application must not take away the rights that were already accrued on the defendant during the course of evidence. The Court has also taken note of the fact that already Ex.P5 is on record as contended by the plaintiff. It was observed that the arguments do not hold any water for the reasons that in respect of the plea, there is inconsistency in the deposition elicited by DW.1 during the course of cross-
examination and at the fag end, they cannot take an inconsistent plea and accordingly, the Court has dismissed the petition. Further, the Court has also observed that this amendment would cause a lot of prejudice and hardship to the defendant.
6. Aggrieved thereby, the plaintiff is before this Court.
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7. Learned Senior Counsel appearing for the plaintiff submits that just because the application is filed after the trial has commenced and at the time of reply arguments, that cannot be a ground to dismiss the petition. It is submitted that, by virtue of this amendment, there will not be any inclusion of a new plea or new case, but infact, if this amendment is allowed, the Court would be able to decide the dispute between the parties. It is submitted that Ex.P5 i.e., the document by which the vendor has acquired the right to the said road portion which is already on record and in support of that, they have only taken a plea which does not provide any further evidence to let in and even after this amendment is allowed, they can still go ahead with the matter and no prejudice would be caused to the defendant. Learned Senior Counsel submits that the observation of the Court that there is no due diligence on the part of the plaintiff is not correct.
8. He submits that the Court has failed to understand the aspect of factum of due diligence. He had relied on the judgment of the Apex Court in the case of CHANDER KANTA -7- NC: 2024:KHC:29088 WP No. 27544 of 2018 BANSAL v. RAJINDER SINGH ANAND1, which reads as under:
"B. Civil Procedure Code, 1908 "due diligence"
- Interpretation of Held: Or. 6 R. 17 proviso "Diligence", The words "due diligence" have not been defined in the Code of Civil Procedure, 1908. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."
1(2008) 5 Supreme Court Cases 117 -8- NC: 2024:KHC:29088 WP No. 27544 of 2018
9. It is submitted that when all the material is placed before the Court, there were no pleadings and as such, by virtue of this amendment, they sought to place their pleadings on record. He had also relied on the judgment of the Apex Court in the case of PANDIT ISHWARDAS v. STATE OF MADHYA PRADESH2 wherein paragraph 4 read as under:
"(4) WE are unable to see any substance in any of the submissions. The learned Counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the Court. There is not legal basis for this assumption. There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted.
Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the Appellate stage, the reason why it was not sought in the trial Court. If he 2 (1979) 4 SCC 163 -9- NC: 2024:KHC:29088 WP No. 27544 of 2018 necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court."
Placing reliance on this judgment, the learned Senior Counsel submits that if necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise and there is no prohibition permitting an amendment even at the appellate stage merely because the necessary material is already before the Court.
10. The learned Senior Counsel also relied on the judgment of the Apex Court in the case of SURENDER KUMAR SHARMA v. MAKHAN SINGH3 wherein paragraphs 7 and 8 read as under:
"7. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is 3 2009 AIR (SCW) 6131
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NC: 2024:KHC:29088 WP No. 27544 of 2018 concerned Le the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved, li is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amendment. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise.
[See B.K. N. Pillai Vs. P. Pillai and another [AIR 2000 SC 614 at Page 616). Accordingly, we do not find any reason to hold that only because
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NC: 2024:KHC:29088 WP No. 27544 of 2018 there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
8. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and charmeter of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed."
and another judgment of the Apex Court in the case of REVAJEETU BUILDERS AND DEVELOPERS v.
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NC: 2024:KHC:29088 WP No. 27544 of 2018 NARAYANASWAMY AND SONS AND OTHERS4 which reads as under:
"59. Setting aside the orders refusing amendment, this Court stated:
"The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."4
2009 (10) SCC 84
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60. In Suraj Prakash Bhasin v. Raj Rani Bhasin & Others, 22 (1981) 3652, this Court held that liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for anther and that the subject matter of the suit should not be changed by amendment.
WHETHER AMENDMENT IS NECESSARY TO DECIDE EAL ONTROVERSY: 61. The first condition which must be
satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts discretion in grant or refusal of the amendment.
NO PREJUDICE OR INJUSTICE TO OTHER
PARTY:
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62. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.
63. The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.
64. In Ganga Bai's case (supra), this Court has rightly observed:
"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."
COSTS:
65. The Courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts
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NC: 2024:KHC:29088 WP No. 27544 of 2018 deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive.
(i) At what stage the amendment was sought?
(ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre- trial or post-trial stage,
(iii) The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly.
(iv) The imposition of costs should not be symbolic but realistic;
(v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs.
(vi) In case of appeal to higher courts, the victim of amendment is compelled to bear considerable additional costs. All these aspects must be carefully taken into considera- tion while awarding the costs.
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66. The purpose of imposing costs is to:
(a) Discourage malafide amendments designed to delay the legal proceedings;
(b) Compensate the other party for the de- lay and the inconvenience caused;
c) Compensate the other party for avoid-able expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and
d) To send a clear message that the parties have to be careful while drafting the original pleadings.
FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS
67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or malafide?
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NC: 2024:KHC:29088 WP No. 27544 of 2018 (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money:
(4) Refusing amendment would in fact lead to injustice or lead to multi- ple litigation; (5) Whether the proposed amendment con-
stitutionally or fundamentally changes the nature and character of the case and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.
70. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.
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71. When we apply these parameters to the present case, then the application for amendment deserves to be dismissed with costs of Rs.1,00,000/- (Rupees One Lakh) because the respondents were compelled to oppose the amendment application before different Courts. This appeal being devoid of any merit is accordingly dismissed with COSTS"
11. It is submitted that if the Court comes to the conclusion that the amendment sought is a belated one the same can be compensated of by imposing cost. Just because the application is filed at the belated stage, the application cannot be dismissed which is crucial for adjudication of the dispute between the parties and prays that the writ petition has to be allowed.
12. Learned counsel appearing for the defendant submits that the suit is filed in the year 2016 and in the entire proceedings they have not whispered anything about the document dated 30.03.2005 marked as Ex.P5. It is submitted that without a pleading, any amount of evidence that is led in, is of no consequence, and the Court cannot consider the same. He submits that after complete full fledge trial which both
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NC: 2024:KHC:29088 WP No. 27544 of 2018 parties have advanced their arguments and while the plaintiff was advancing reply arguments, at that stage, this application has been filed. It is submitted that in the whole pleadings, they were referring to the road i.e., "PPP" portion, by virtue of this amendment, even that "PPP" portion is mentioned and basing on that, he got an injunction also now they want to amend the said pleadings and introduce the new pleadings with the document dated 30.03.2005. It is submitted that the party cannot be permitted to amend the pleadings at that stage, which would definitely cause prejudice to the defendant and the Court had rightly dismissed the application filed for amendment of pleadings.
13. Having heard the counsels on either side, perused the entire material on record. In the pleadings, the plaintiff has consistently referred to the plaint "PPP" road approach which is being used as the road approach to the plaint schedule property by the plaintiff's predecessors in title who conveyed the right in respect of the property along with the right to make use of the "PPP" road to the plaintiff's. According to the plaintiff that "PPP" road originally was owned by one Krishna Moily and the said Krishna Moily executed the Settlement Deed and
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NC: 2024:KHC:29088 WP No. 27544 of 2018 conveyed the same to one Smt.Puttamma, Sri Damodar G., Sri B.Nimiraj and Sri B.Rohithaksha jointly as per the Deed of Settlement dated 17.04.2004, registered in the office of the Sub-Registrar of Mangalore City. Subsequently, Smt.Puttamma and three others sold the property as well as the right to make use of the "PPP" road to the Karnataka Education and Charitable Trust, a sister concern of the plaintiff and subsequently, the said right in the plaint schedule property as well as the right to make use of the "PPP" road was sold to plaintiff and it is stated in the plaint that the defendant was also using "PPP" roadway for access to the property and recently, he has installed a gate across roadway to the west of the plaint schedule property, at a point beyond the western boundary of the plaint schedule property, which has become practically impossible for the plaintiff to make use of the said roadway.
14. On the basis of these pleadings, the Court had granted an interim injunction now by virtue of the amendment, which is extracted in the preceding paragraphs in entire III(c). Wherever the "PPP" road is mentioned, the plaintiff wants delete the same and he wants to add that the Karnataka
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NC: 2024:KHC:29088 WP No. 27544 of 2018 Educational and Charitable Trust had acquired the right to make use of the 20 feet width "PPP" road by virtue of a sale deed dated 30.03.2005, registered as document No.6860/2004-05 executed by Mizar Sadananda Pai and Mizar Shivananda Pai. Now, it is the argument of the learned Senior counsel that this particular document is marked as Ex.P5 and the same is on record. Now by taking a plea by virtue of this amendment they are only stating what is already on record, but they are only raising a pleading in that regard. The nature of the suit will not alter and the Court is not right in observing that there is no due diligence on the part of the plaintiff.
15. This Court is not able to appreciate the submission made by the learned Senior Counsel. When the suit is filed in the year 2016 when the whole thrust of the plaintiff is with regard to "PPP" road and according to him his vendor was only using that road, now by this amendment he wants to delete the said admission and basing on which they have been enjoying the injunction all through and wants to submit that their vendor has acquired this road not from the vendor's vendor of plaintiff, but from one Mizar Sadananda Pai and Mizar Shivananda Pai. Just because this document is on record, the Court by way of
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NC: 2024:KHC:29088 WP No. 27544 of 2018 amendment cannot permit these pleadings. The parties are governed by their pleadings and basing on the said pleadings, the Court framed the issues and evidence is led in and basing on the arguments, thereafter, the Court would decide the issue between the parties. Basing on the averments in the plaint, the defendant had filed a written statement and several issues are also framed. Now at this stage, this particular factum of purchasing the road by the plaintiff is a new pleading, that too after arguments of the defendant is completed. More or less to cover the latches in the case when the amendment is sought the Court cannot allow these kind of amendment which will definitely cause a lot of prejudice to the other side if the same can be compensated adequately in terms of money that is altogether a different case. In the considered opinion of this Court, this is not a case where an amendment can be allowed by imposing cost on the plaintiff. If these kinds of amendments are allowed after the trial is completed and after the arguments are concluded to cover the latches, the purport of Order VI Rule 17 of CPC itself would be defeated. This is a clear case where the plaintiff had failed to bring to the notice of the Court all these facts which were very much in his knowledge and it is a
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NC: 2024:KHC:29088 WP No. 27544 of 2018 clear case that there is no due diligence on the part of the plaintiff and in that view of the matter, this Court finds no reason to interfere with the well considered order passed by the Trial Court. Accordingly, the petition is dismissed.
All the IA's in this writ petition shall stand closed.
Sd/-
(LALITHA KANNEGANTI) JUDGE CPN