Karnataka High Court
K V Subramani vs Mohammed Siraj on 29 August, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
-1-
NC: 2023:KHC:30783
WP No. 18983 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 18983 OF 2016 (GM-CPC)
BETWEEN:
K V SUBRAMANI
S/O LATE VENKATARAMACHARY
AGED ABOUT 43 YEARS
MUTHYALPET
MULBAGAL TOWN.
...PETITIONER
(BY SRI. R.B. SADASHIVAPPA, ADVOCATE FOR
SRI. V VINOD REDDY.,ADVOCATE)
AND:
1. MOHAMMED SIRAJ
S/O MOHAMMED AKBAR
AGED ABOUT 46 YEARS
Digitally
signed by THATHIPALYA
NARASIMHA
MURTHY MULBAL TOWN.
VANAMALA
Location:
HIGH 2. Y SURENDRA
COURT OF S/O A.C.YADURAYA GOWDA
KARNATAKA
AGED ABOUT 49 YEARS
R/O 13TH CROSS, I MAIN
AECS LAYOUT, SANJAYNAGAR
BANGALORE-94.
3. R PAVITHRA
W/O Y SURENDRA
-2-
NC: 2023:KHC:30783
WP No. 18983 of 2016
AGED ABOUT 42 YEARS
R/O 13TH CROSS, 1ST MAIN
AECS LAYOUT
SANJAYNAGAR
BANGALORE-94.
...RESPONDENTS
(BY SRI.C.M. NAGABHUSHANA, AND
SRI. SRIHARI A.V., ADVOCATES FOR R1 TO R3)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 18.1.2016 PASSED IN O.S.NO.59 OF
2010 BY THE COURT OF THE II ADDL. SENIOR CIVIL
JUDGE KOLAR ITINERATING AT KOLAR ON I.A.NO.8 AT
ANNEX-E AND ALLOW I.A.NO.8 FILED BY THE
PETITIONER.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is by the plaintiff in O.S. No.59/2010 on the file of the II Additional Senior Civil Judge, Kolar, itinerating at Mulbagal - now a designated Court [for short, 'the civil Court']. The petitioner has impugned the civil Court's order dated 18.01.2016, and the civil Court by this impugned -3- NC: 2023:KHC:30783 WP No. 18983 of 2016 order has rejected the petitioner's application [I.A. No.8] under Order VI Rule 17 of the Code of Civil Procedure, 1908 [for short, 'the CPC'] for amendment of the plaint. The petitioner's application for amendment is rather elaborate, and before adverting to the amendments and the reasons assigned by the civil Court, this Court must concisely state the circumstances leading to filing of the application.
2. The petitioner originally has filed this suit as a suit for permanent injunction relying upon the Agreement to Sell dated 02.06.2006 [the Agreement], asserting that on different dates he has paid a total sum of Rs.4,00,000/- as advance in part performance and that the respondents must be restrained from entering into transaction for transfer of the two agricultural lands [Item No. 1 and 2 properties] mentioned in the plaint. When the trial is commenced, the petitioner has filed an application for amendment to include the prayer for specific -4- NC: 2023:KHC:30783 WP No. 18983 of 2016 performance of the Agreement for Item No.2 property. This application is allowed permitting the petitioner to carry out amendment, and consequentially, the plaint is returned to be presented before the competent Court. Thereafter, the suit is listed before the civil Court.
3. After the suit is re-presented before the civil Court, and before the evidence is commenced, the petitioner has filed the present application to bring in two sets of amendments apart from the amendments to correct certain typographical errors in the plaint as regards the advances paid. The first proposed amendment relates to the circumstances in which the plaint is re-presented before the civil Court and the circumstances in which there is an inter se sale deed amongst the respondents for the item No.2 property. The proposed pleadings in these regards are mentioned in the application as paragraph [g] -5- NC: 2023:KHC:30783 WP No. 18983 of 2016 without mentioning where this amendment has to be introduced in the plaint.
4. The second proposed amendment is as regards item No.1 property, and this is essentially to bring on record the plea that the first respondent, who is granted item No.1 property, could not have executed any transfer deed for this property until 25.12.2011 and this period having lapsed, the petitioner apprehends that there would be transfer inter se the respondents. In continuance of these amendments, the petitioner has also proposed amendment to include the prayer for specific performance of the Agreement even insofar as item No.1 property.
5. The civil Court has rejected this application observing that some of the amendments, such as correction of the amounts paid in certain paragraphs of the plaint, the change of the counsel with the re-presentation of the plaint and certain -6- NC: 2023:KHC:30783 WP No. 18983 of 2016 other typographical errors, would not be necessary. The civil Court, as regards the amendment relating to item No.2 property, has opined that it cannot be allowed as the petitioner has not indicated where it should be incorporated. The civil Court, as regards the amendment insofar as item No.1 property and the prayer for specific performance, has observed that if the concerned respondent's obligation to execute the sale deed for this property is on 25.12.2011, there would be a fresh accrual of cause of action and because the trial has already commenced, the amendment, which is filed three years from the date of re-presentation of the plaint, cannot be allowed.
6. Sri. R B Sadashivappa, the learned counsel for the petitioner, and Sri. C M Nagabhushana, the learned counsel for the respondents, are heard for final disposal. This Court, at the outset, must record that both the learned counsels submit that this Court may observe that -7- NC: 2023:KHC:30783 WP No. 18983 of 2016 insofar as the amendments to include the change in the learned counsel for the petitioner, the typographical errors in some paragraphs regarding the amounts paid as advance, the mentioning of such amounts in words would not be necessary. They also submit that if the civil Court can take note of the afore at the time of final adjudication, the petitioner cannot be prejudiced.
7. The learned counsels submit that the controversy would only be about the inclusion of the following paragraphs and the change in the prayer column to include the prayer for specific performance insofar as item No.1 property.
As regards Item No. 2 property:
"g. To add the sentences "But unfortunately after the plaint has been presented to this Hon'ble Jurisdictional court on 28.03.2010, as per the orders of the Civil Judge (Jr.Dn.) in O.S. .No.261/2006 a new number has been given as 0.S. No.59/2010 and the issue of suit summons to Agreement- vendor/defendant no.1 was made and -8- NC: 2023:KHC:30783 WP No. 18983 of 2016 when this suit and the litigation is under process with a malafide intention, the defendant no.1, as apprehended by the plaintiff sold out the suit schedule item No. 2 property to one Y.M. Surendra, and to his wife smt. K.Pavithra by way of executing a registered sale deed contrary to the Agreement to sale document dated 2-06- 2006. Hence having no option as the said sale Transaction took place between the defendant no.1 and defendants no. 2 and 3 is during pendency of this Lis, and as the defendant no.2 and 3 are not bonafide purchaser's the same is not binding upon the present plaintiff. On the other hand along with the Agreement vendor/defendant no.1, the defendants no.2 and 3 are also bound to come and execute the registered sale deed about the item no.2 of the suit schedule property. The said registered sale deed copy vide S.R. No.. 585/2010-11, dated 18-6-2010, the mutation and the R.T.C. extracts, the grant certificate of suit schedule item no.2 property are herewith furnished for kind perusal of this Hon'ble court."-9-
NC: 2023:KHC:30783 WP No. 18983 of 2016 As regards Item No. 1 property:
6(a) That, the plaintiff again submits that, now the suit schedule item no.1 property's non alienation clause or the condition is also completed on 25-12-2011, and as that of the item no.2, about the said item no.1 of the suit schedule property also the defendant no.1 is under hectic attempts to alienate to some others and encash the same by violating the terms and conditions of the sale Agreement. As such, against the item no.1 of the suit schedule property also the plaintiff is entitled to seek the relief of Specific performance contract. The grant certificate of item no.1 of the suit schedule property, the R.T.C. extracts and mutation extracts, are herewith furnished for kind perusal of this Hon'ble court", in the 4th line of page no.5 at para no.6 of the plaint, after the words schedule property and full stop, and further as pars no. 6(a) under para no.6.
8. Sri. R B Sadashivappa submits that this Court must interfere with the civil Court's order because the civil Court has failed to consider that the suit, which is initially filed as a suit for permanent
- 10 -
NC: 2023:KHC:30783 WP No. 18983 of 2016 injunction, is now amended to be a suit for specific performance and the present application is filed to enable complete and effective adjudication of the petitioner's claim for specific performance of the Agreement as regards the item No. 1 property before commencement of the evidence.
9. Sri C M Nagabhushana submits that both the proposed amendments as regards item Nos. 1 and 2 properties are time-barred and hence, the civil Court has rightly rejected the application for amendment. Sri. C M Nagabhushana contends that the legal notice is issued in the year 2009 and the application for amendment of the plaint to include the prayer for specific performance of the agreement for item No.2 property is allowed in the year 2010, but the petitioner has not taken any steps to bring on records the pleadings in support of such prayer until October 2013 when the present application is filed. These circumstances, Sri C M Nagabhushana argues,
- 11 -
NC: 2023:KHC:30783 WP No. 18983 of 2016 demonstrate that the claim for specific performance of the Agreement for sale of the item No. 2 property is barred by limitation.
10. Sri C M Nagabhushana, as regards the second set of amendments viz., to include the averments in support of the prayer for specific performance of the Agreement for sale of item No.1 property and the prayer, submits that the amendment would not be necessary because if the petitioner could really claim specific performance for item No.1 property, there would be fresh accrual of cause of action as observed by the civil Court, and in that event, a new suit could be filed. He argues that if the suit is so filed, the respondents would be entitled to take up all defenses, including the defense of limitation.
11. The rival case is considered in the backdrop of the circumstances referred to above. The petitioner may not have stated where the first
- 12 -
NC: 2023:KHC:30783 WP No. 18983 of 2016 amendment [relating to Item No. 1 property] should be incorporated in the plaint, but that cannot deter the merits of the application insofar as this amendment, especially with the petitioner being permitted to seek specific performance of the agreement insofar as this property way back in the year 2010 resulting in re- presentation of the plaint before the civil Court. This anomaly in not mentioning where this amendment should be incorporated in the plaint could have been corrected by the civil Court by directing the inclusion after a particular paragraph in the plaint.
12. Insofar as the pleadings about the item No. 2 property being time barred and 'due diligence', these aspects must necessarily be considered in view of the fact that the prayer for specific performance is already permitted, that after the amendment is allowed the suit is re-presented, and that the evidence is yet to be commenced. In these circumstances, this Court is of the considered
- 13 -
NC: 2023:KHC:30783 WP No. 18983 of 2016 opinion that the first amendment insofar as it relates to item No.2 property must be allowed without prejudice to the respondents to file additional written statement to contest the prayer for specific performance on all grounds, including the ground of limitation.
13. The suit as initially filed is for perpetual injunction contending that he has right to purchase even item No.1 and 2 properties. The petitioner, in the proposed amendment as regards item No. 1 property, asserts that the first respondent could not have sold this property until 25.12.2011 [i.e., until the expiry of the non-alienation period, which is part of the terms of the grant] and that he apprehends that there will be a sale deed even for this property amongst the respondents because the non-alienation period has expired.
14. The petitioner has presented the suit for perpetual injunction asserting a right to purchase the
- 14 -
NC: 2023:KHC:30783 WP No. 18983 of 2016 item No. 1 property. The amendments are proposed, after the lapse of the period of non-alienation, to include the pleadings and the prayer for specific performance. The immediate cause for the prayer of specific performance is the alleged apprehension that there would be sale of even this property inter se the respondents. These circumstances present a bundle of facts from which the prayer for specific performance must be decided. This Court is of the view that if the application for amendment as regards the Item No. 1 property is rejected there would be segregating facts for adjudication leading to multiplicity of proceedings and possible different opinions on similar set of facts.
15. It is settled that applications for amendments are entertained to avoid multiplicity of proceedings, and in the present case, the amendments as regards the item No. 1 property must be allowed to enable a complete adjudication without
- 15 -
NC: 2023:KHC:30783 WP No. 18983 of 2016 multiplicity of proceedings. This Court has already opined, while considering the merits of the first set of amendment, that the circumstances such as that evidence is not commenced after the suit is re- presented must have a role to play and the amendment cannot be kept out of consideration on the ground of lack of due diligence.
16. The respondents will not be put to irreparable injury if they can show that not only the prayer for specific performance for item No.2 property would be barred by limitation but also that there is an impermissible combining of causes of action. If the respondents take up such defense, the civil Court can decide on the merits of such evidence. Further, the amendment, in the absence of special circumstances, must relate to the date of the application and not to the date of suit and this will mitigate the difficulties to the respondents. The respondents therefore will not be put to irreparable
- 16 -
NC: 2023:KHC:30783 WP No. 18983 of 2016 injury if the application is allowed. The civil Court has not considered these material circumstances, and therefore, there must be interference. Hence the following:
ORDER [a] The petition is allowed, and the impugned order dated 18.01.2016 in O.S. No.59/2010 on the file of the II Additional Senior Civil Judge, Kolar, itinerating at Mulbagal is modified permitting the amendments of the plaint to include proposed paragraphs [g] and 6[a] as paragraphs 6[a] and 6[b] and the corresponding prayers as mentioned in the application.
[b] The civil Court must consider the merits of the petitioner's case despite certain obvious typographical errors in mentioning the details of the payment
- 17 -
NC: 2023:KHC:30783 WP No. 18983 of 2016 allegedly made by the petitioner to the concerned respondents, [c] The civil Court must examine whether the prayer for specific performance of the Agreement for item No. 1 and 2 properties is time-barred, from the date of the respective application by the petitioners.
[d] The respondents shall be at liberty to file additional written statement within such reasonable time as the civil Court may permit.
SD/-
JUDGE AN/-