Karnataka High Court
Smt. T R Meera vs Sri Mare Gowda on 8 February, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NOS.53486-53489 OF 2016
Between:
1. Smt. T.R.Meera
W/o Late M. Kumar
Aged 58 years,
R/at No.54,
Near Krishna Temple,
Kadugondanahalli,
Bengaluru-560045
2. Dr. G.T.Gopal
S/o G. Thimmaiah,
Aged 56 years,
Presently residing at
No.93, Surabhi,
Ramaswamy Reddy Layout,
Near Khivaraj Motors,
Horamavu Service Road,
Horamavu,
Kalyananagar Post,
Bengaluru-560043. ... Petitioners
(By Sri M.Aswathnarayana Reddy, Adv.,)
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And:
1. Sri Mare Gowda,
S/o Late Muniswamappa,
Aged 47 years,
2. Sri Nagaraja
S/o Late Muniswamappa,
Aged 43 years,
3. Sri Muniraja,
S/o Late Muniswamappa,
Aged 40 years,
4. Sri Ramesha,
S/o Late Muniswamappa,
Aged 38 years,
5. Sri Ravi,
S/o Late Muniswamappa,
Aged 36 years,
6. Sri Janardana
S/o Late Muniswamappa,
Aged 34 years,
7. Sri Rama,
S/o Late Muniswamappa,
Aged 32 years,
8. Sri lakshmana,
S/o Late Muniswamappa,
Aged 30 years,
All are residing at
Rachenahalli village,
K.R.Puram hobli,
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Bengaluru East Taluk,
PIN-560045 ... Respondents
(By Sri S.Rajendra, Adv., for R-2 and R-3 to R-8)
(Vide Order Dated 10/01/2017 it is unnecessary to bring
LR's or deceased R-1)
These Writ Petitions are filed under Article 227 of the
Constitution of India praying to call for records and quash
the impugned orders dated 22.09.2016 on IA Nos.11 to 14
in O.S.No.8890/2006 by the XXXIX Additional City Civil
and Sessions Judge, Bengaluru vide Annexure-'T' & 'U'
respectively.
These writ petitions coming on for preliminary
hearing this day, the court made the following:
ORDER
The plaintiff Nos.6 and 15 have filed these writ petitions against the order dated 22.09.2016 made in OS No.8890/2006 on the file of the XXXIX Additional City Civil and Sessions Judge, Bengaluru rejecting I.A.No.11 and 12 filed by the plaintiff No.6 to re-open the case and under Order VI Rule 17 of CPC for amendment of the plaint; I.A.Nos.13 and 14 filed by the plaintiff No.15 to re-open the case and under Order VI Rule 17 of CPC for amendment of the plaint;
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2. The plaintiffs filed suit in O.S.No.8890/2006 initially for permanent injunction contending that Sy.No.78/1 measuring 2 acres 22 guntas inclusive of 01 gunta kharab land situated at Rachenahalli village, K.R.Puram Hobli, Bengaluru South Taluk, belonged to Sri Muniswamappa, father of defendants who purchased the same under a registered sale deed dated 19.06.1961. The said Muniswamappa along with his children had executed irrevocable General Power of Attorney dated 16.06.1993, Affidavit dated 16.06.1993 and Full Settlement Agreement dated 16.06.1993 as per annexure-A, B and C. Therefore, plaintiffs filed a suit for injunction.
3. The defendants filed written statement and denied the plaint averments and contended that they had never executed any General Power of Attorney dated 16.06.1993, Affidavit and Full Settlement Agreement as alleged by the plaintiffs. Therefore, they sought for dismissal of the suit.
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4. After completion of evidence of both the sides, the matter was posted for arguments on the main suit. At that stage, the plaintiff No.6 filed IA No.11 under Section 151 of CPC to re-open the case for the purpose of considering the I.A.No.12 filed under Order VI Rule 17 of CPC for amendment of plaint and the plaintiff No.15 filed IA No.13 under Section 151 of CPC to re-open the case for the purpose of considering the I.A.No.14 filed under Order VI Rule 17 of CPC for amendment of plaint contending that the other plaintiffs have colluded with the defendants and filed a memo for withdrawal, contrary to the pleadings, evidence and documents alleging that the property in question is an agricultural land and no layout has been formed or sites have been carved out and further alleged that they are not in possession of the property in question, thereby requested the court to dismiss the suit and the said memo for withdrawal is not binding on the plaintiff Nos.6 and 15 and they have contended that in view of the dictum of Hon'ble Supreme Court in the case of Suraj Lamp and -6- Industries Pvt. Ltd. (2) through Director vs. State of Haryana and another reported in (2012) 1 Supreme Court Cases 656, (for short 'Suraj Lamp's case') wherein it is held that the Sale Agreement, General Power of Attorney and Will transaction are to be treated as existing agreement of sale and further held that nothing prevents the affected parties from getting registered deeds of conveyance to complete their title on the basis of the aforesaid documents and also to defend possession under section 53-A of Transfer of Property Act and also contended that the defendants have deliberately denied the execution of the documents even though the said documents contained their signatures and also Left Thumb impression of late Muniswamappa, the father of defendants in the present case. Under these circumstances, the plaintiff Nos. 6 and 15 have filed applications to re-open the case and consider the applications for amendment. The proposed amendment sought to the effect that late Muniswamappa, the father of defendants and defendants executed the General Power of -7- Attorney dated 16.06.1993, Affidavit dated 16.06.1993 and Full Settlement Agreement dated 16.06.1993 in favour of plaintiff No.6 in respect of item No.7 of the suit schedule property bearing Site No.6 measuring East to West 40 feet and North to South 30 feet, which is the part and parcel of the property covered under Ex.P.33 and 34 respectively and that the said Muniswamappa had already received full sale consideration amount of Rs.20,000/- and on the same day, the plaintiff No.6 was put in possession and also contended that the recitals of the said document amply prove that they have received entire sale consideration and put the plaintiff No.6 in possession of the said property. Therefore, the said General Power of Attorney dated 16.06.1993, Affidavit and Full Settlement Agreement dated 16.06.1993 are to be treated as existing agreements of sale and plaintiff No.6 and 15 got right to enforce the said transaction for Specific Performance of Contract, because they have already performed their part of contract and paid entire sale consideration etc. -8-
5. The said applications were resisted by the defendants by filing objections. The defendants specifically contended in the objections to the said applications that the very applications filed by the plaintiffs are highly belated and the applications filed when the matter was posted for arguments are not maintainable and are liable to be dismissed and also contended by reiterating the averments made in the written statement that neither they, nor Late Muniswamappa had executed any General Power of Attorney dated 16.06.1993, Affidavit and Full Settlement Agreement and further contended that the very suit for injunction is not maintainable and when the matter was posted for arguments, plaintiffs want to amend the relief of Specific Performance which is not maintainable in view of Article 54 of the Limitation Act and therefore sought for dismissal of the applications.
6. The learned Trial Judge, after considering the entire materials on record, by the impugned order dated -9- 22.09.2016, dismissed IA Nos.11, 12, 13 and 14. Hence, the present writ petitions are filed.
7. I have heard the learned counsel for the parties to the lis.
8. Sri M.Ashwathanarayana Reddy, learned counsel for the petitioners contended that, initially though the injunction suit was filed, in view of the dictum of the Hon'ble Supreme Court in the case of Suraj Lamp and Industries Pvt. Ltd. (2) through Director vs. State of Haryana and another reported in (2012) 1 Supreme Court Cases 656, Agreements, General Power of Attorney's, Affidavit and Full Settlement Agreement shall be treated as agreement of sale and can be enforceable. In view of the same, the present applications were filed for amendment and also to re-open the case of the plaintiffs. The Trial Court has not considered the said applications in the light of the judgment relied upon by the learned counsel for the plaintiffs, except making a reference and absolutely no
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discussion was made upon the judgment relied upon by the learned counsel for the petitioners that the amendment application could be filed, even when the matter was posted for arguments.
9. Learned Counsel further contended that the trial court while deciding the applications has gone to the extent of recording a finding with regard to the merits of the case that, suit is not maintainable, even the applications are filed after lapse of more than 10 years and the time limit to file a suit for specific performance is three years. The said findings of the trial court is contrary to the dictum of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and others vs. K.K.Modi and others reported in (2006) 4 Supreme Court Cases 385 to the effect that, while considering the application, whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case while considering the amendment and the court should not
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record any finding on the merits of the amendment sought and the merits of the amendment sought to be incorporated by way of amendment are not be adjudged at the stage of allowing the prayer for amendment. Said principle has not been followed. He further contended that, relying upon the unreported judgment of this court in RSA No.1961/2008 dated 11th July, 2013, relying upon the judgment of the Hon'ble Supreme Court in the case of Suraj Lamp and Industries Pvt. Ltd., (2) Through Director vs. State of Haryana and Another reported in (2012) 1 Supreme Court Cases 656, held that, Ex.P.1 Power of Attorney, Ex.P.2 Affidavit and Ex.P.3 Declaration could be treated as "deeds of transfer of title/conveyance" or they have to be treated as agreement of sale enforceable against the executant.
10. Learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court in the case of Maya Devi vs. Lalta Prasad reported in AIR 2014 Supreme Court 1356, wherein relying upon the judgment
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in Suraj Lamp's case at para 7 and 8, recorded the ratio laid down in the said case, while treating the sale agreement, General Power of Attorney, Will transactions as sale agreements. Therefore, he sought to set aside the impugned order passed by the trial court.
11. Per contra Sri Rajendra S, learned counsel for the respondents/defendants sought to justify the impugned order passed by the trial court and strenuously contended that the very applications filed by the plaintiff Nos.6 and 15 for amendment after lapse of more than 10 years that too when the matter was posted for further arguments, are not maintainable and the same are liable to be dismissed. The alleged agreement relied upon by the plaintiffs is dated 16.06.1993 and the present applications are filed in the year 2016, after lapse of more than 10 years. Therefore, the applications are not maintainable and he further fairly submitted that the trial court has not discussed the law laid down by the Hon'ble Supreme Court in Suraj Lamp's
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Case and also submitted that though he also relied upon so many judgments of the Hon'ble Supreme Court, in support of his case to reject the applications, unfortunately the learned trail judge has not considered the said judgments also.
12. In support of his contentions, the learned counsel for the respondents sought to rely on the dictum of the Hon'ble Supreme Court in the case of Shiv Gopal Sah @ Shiv Gopal Sahu vs. Sita Ram Saraugi & Ors., reported in AIR 2007 Supreme Court 1478 to the effect that the claim of the plaintiff is barred by limitation. To allow the amendment application, there is no explanation for substantial delay of more than 10 years in filing the amendment application. Therefore plaintiffs are not entitled to amend the plaint and the applications are liable to be dismissed.
13. He also relied upon the judgment of the Hon'ble Supreme Court reported in AIR 2015 Supreme Court
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3364 between L.C.Hanumanthappa (Since dead) represented by his legal representatives vs. H.B.Shivakumar, particularly relied upon Para 29 of the said judgment to the effect that, when the suit filed was barred by time, the application for amendment should not have been allowed and the application filed is to be rejected as barred by limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away.
14. He further contended that when the suit was filed in the year 2006 and the application for amendment is filed in the year 2016 and at this belated stage, if the applications are allowed the plaintiff would further drag the proceedings. Therefore, he sought for dismissal of the writ petitions.
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15. In view of the rival contentions urged by the learned counsel for the parties the only point that arises for consideration in these writ petitions, is:
"Whether the Trial Court is justified in rejecting the applications IA Nos.11, 12, 13 and 14 to re-open the case and amendment of pleadings under order VI Rule 17 of CPC in the facts and circumstances of the present case?"
16. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
17. It is undisputed fact that the plaintiffs filed O.S.No.8890/2006 for bare injunction on the basis of the General Power of Attorney dated 16.06.1993, Affidavit and Full Settlement Agreement and the defendants filed written statement denying the very execution of the documents alleged by the plaintiffs. It is also not in dispute that when the matter was posted for final arguments, the present
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applications were filed, in view of the dictum of the Hon'ble Supreme Court in Suraj Lamp's case as stated supra.
18. It is also undisputed fact that the amendment sought is to the effect that the General Power of Attorney, Affidavit and Full Settlement Agreement alleged to have been executed by Muniswamappa and defendants are to be treated as agreement of sale in view of the dictum of the Hon'ble Supreme Court and therefore the suit for specific performance to enforce the same and considering them as agreements. It is also undisputed fact that the defendants have denied the same, by filing objections and contended that there was delay of 10 years in filing the applications.
19. The trial court while discussing the pleadings and applications for amendment has recorded a finding that the suit is filed based on the alleged interference. Even in the suit, nowhere the plaintiffs have sought to reserve right to file separate suit for specific performance. The plaintiffs should have filed the applications within
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three years from the date of filing of written statement by the defendants. But the applications are filed after lapse of 9 years from the date of filing of written statement. The reason given for delay in filing these applications is that, the plaintiffs were not aware of legal proceedings and legal points and also their right to claim the property. Learned Trial Judge also observed that "party may not be aware of the legal proceedings, but the advocate being a legal practitioner was aware of the legal points" and further observed that after lapse of more than 10 years, the present applications are filed from the date of filing the written statement, hence the present applications are not maintainable.
20. The amendment application is filed on the basis of the dictum of the Hon'ble Supreme Court in the case of Suraj Lamp and Industries Pvt. Ltd. (2) through Director vs. State of Haryana and another reported in (2012) 1 Supreme Court Cases 656. At para 11 of the impugned
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order, the learned judge extracted only Head Note-A and has not discussed about the law laid down by the Hon'ble Supreme Court, especially at para 26 which reads as under:
26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/Will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances.
They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GAP/will transactions" may also be used to obtain specific performance or to defend possession under Section 53-A of the T.P.Act. If they are entered before this day, they may be relied upon to apply for regularization or allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/will transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need
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not be disturbed, merely on account of this decision.
21. It is not in dispute that the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and others vs. K.K.Modi and others reported in (2006) 4 Supreme Court Cases 385, while considering the amendment, has held as under:
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 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..
22. Though all these judgments were relied upon by the plaintiffs before the trial court, the trail court has not considered the law laid down by the Hon'ble Supreme
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Court with regard to the proposed amendment of the plaintiffs to treat the General Power of Attorney, Affidavit and Full Settlement Agreement as agreement of Sale to enforce the same.
23. It is also not in dispute that the learned counsel for the defendants relied upon various judgments viz., i. AIR 2007 Supreme Court 1478-Shiv Gopal Sah @ Shiv Gopal Sahu vx. Sita Ram Saraugi & Ors., ii. AIR 2009 Supreme Court 1177-South Konkan Distilleries & Anr vs. Prabhakar Gajanan Naik & Ors.
iii. AIR 2009 Supreme Court 1433-Vidyabai & Ors. Vs. Padmalatha & Anr.
iv. AIR 2015 Supreme Court 3364- L.C.Hanumanthappa (Since dead) represented by his legal representatives vs. H.B.Shivakumar
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v. 2013(5) KAR.L.J. 301-Channaibhairayya vs. The Commissioner, Bengaluru Development Authority, Bengaluru and others vi. (2012) 1 SCR 295-J.Samuel and others Vs. Gattu Mahesh and others vii. Matters under Article 227 No.3781/2015 dated 29.10.2015-Mahajan Sahkari Awas Samiti Ltd., Vs. Resham Singh and 8 others Except quoting the judgments, absolutely no discussion is made by the learned Trial Judge while passing the impugned order. In the absence of any discussion with regard to Suraj Lamp's case, the impugned order passed by the Trial Court is contrary to the dictum of the Hon'ble Supreme Court stated supra. When the very applications for amendment was filed on the basis of the Suraj Lamp's Case to enforce the General Power of Attorney, Affidavit and Full Settlement Agreement as agreements of Sale, the learned Trial Judge ought to have discussed the law laid down by the Hon'ble Supreme Court in the said case. But, the same has not been done. On that short ground alone
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the impugned order passed by the trial court cannot be sustained.
24. In view of the aforesaid reasons, the impugned order passed by the Trial Court dated 22.09.2016 on IA Nos.11, 12, 13 and 14 made in O.S.No.8890/2006 is quashed. The matter is remanded to the Trial court for re- consideration of the IA's No.11, 12, 13 and 14 with reference to the law laid down by the Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Ltd. (2) through Director vs. State of Haryana and another in (2012) 1 Supreme Court Cases 656 and in accordance with law.
With the above observations, the Writ Petitions are disposed of.
SD/-
JUDGE KMV*