Karnataka High Court
Sri. Venkatappa vs Sri.Ponnuswamy Reddy on 20 June, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.5830/2017 (GM-CPC)
BETWEEN:
SRI. VENKATAPPA,
S/O LATE GANTAPPA NAIDU,
AGED ABOUT 64 YEARS,
NEAR ANJANEYASWAMY TEMPLE,
KERE KODI, KASABA HOBLI
BANGARPET TALUK-563115. ... PETITIONER
(BY SRI CHANDRA MOHAN J. G., ADVOCATE)
AND:
SRI.PONNUSWAMY REDDY,
S/O LATE NARAYANA REDDY,
AGED ABOUT 67 YEARS,
KERE KODI, KASABA HOBLI
BANGARPET TALUK-563115. ... RESPONDENT
(RESPONDENT IS SERVED)
...
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER OF CIVIL JUDGE (JR.DN) AND JMFC, BANGARPET IN
O.S.NO.217/2011, ON IA-5 FILED UNDER ORDER VI RULE 17
OF CPC, SEEKING FOR AMENDMENT OF PLAINT, DATED
25.11.2016 VIDE ANNEXURE-A TO THE PETITION.
2
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The defendant has filed this petition against the order dated 25.11.2016 made in O.S. No.217/2011 allowing I.A.5 filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure with costs of Rs.300/- on the file of the Principal Civil Judge (Jr. Dn.) & J.M.F.C., Bangarpet.
2. The respondent, who is the plaintiff before the trial Court, filed a suit - O.S.No. 217/2011 contending that the defendant is the tenant under the plaintiff in respect of schedule premises on a monthly rent of Rs.200/- commencing the tenancy from 1st of each month. He was a chronic defaulter in payment of rents of schedule premises to the 3 plaintiff and the defendant is due for arrears of rent from 1.6.2009 to 1.8.2011 for a period of 25 months at the rate of Rs.200/- per month totaling to Rs.5,000/- to the plaintiff which the defendant had withheld without any sufficient cause. Therefore, the plaintiff was constrained to issue legal notice dated 4.7.2011 to the defendant to pay arrears of rent, but the defendant has neither replied to the said legal notice nor paid the rent. Inspite of repeated request both oral and registered notice, the defendant has failed to pay the arrears of rent and has also failed to vacate the suit schedule property. Hence, he filed the suit.
3. The petitioner, who is defendant before the trial Court, filed the written statement and denied the plaint averments and specifically contended that the suit filed by the plaintiff is not maintainable and 4 is liable to be dismissed for lack of jurisdiction to try the matter both on the pecuniary jurisdiction as well as on the original side. It was specifically contended that the he had purchased the suit schedule property under a registered sale deed dated 13.12.2004 from one Muniyappa and since then, he has become the absolute owner and in physical possession and enjoyment of the suit schedule property measuring east to west 15 feet and north to south 10 feet. He further contended that till 13.12.2004, he was tenant under the said Muniyappa and after the execution of the registered Sale Deed dated 13.12.2004, the defendant's possession was enlarged to absolute owner and after purchase of the same, the katha was mutated in his name and all the Municipal records are now standing in his name. The plaintiff was neither the owner of the suit schedule property nor the 5 defendant was a tenant under the plaintiff at any time. There was no jural relationship with the plaintiff and therefore, sought for dismissal of the suit.
4. When the matter was posted for defendant's evidence, at that stage, the plaintiff filed an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of the pleadings at para-1A and the prayer column stating that originally the property belongs to his mother and after her death, the plaintiff being the only son, the schedule property devolved upon the plaintiff and thus the plaintiff has become the absolute owner of the schedule property and the katha was changed in the name of the plaintiff in respect of the schedule property and therefore, sought for declaration of title in respect of the suit schedule 6 property. The said application was resisted by the defendant by filing objections reiterating the averments made in the written statement.
5. The trial Court considering the entire material on record by the impugned order dated 25.11.2016 allowed the application with costs of Rs.300/-. Hence, the present writ petition is filed.
6. The respondent is served and unrepresented.
7. I have heard the learned Counsel for the petitioner.
8. Sri J.G. Chandra Mohan, learned Counsel for the petitioner vehemently contended that the application filed by the respondent-plaintiff under Order VI Rule 17 of the Code of Civil Procedure is at a belated stage i.e., after completion of the evidence 7 of the defendant which is not permissible in view of the proviso to Order VI Rule 17 of CPC. The trial Court has proceeded to pass the impugned order contrary to the material on record. He further contended that when the respondent-plaintiff at the beginning had filed a suit for ejectment claiming that he is the owner of the suit schedule property and when the defendant has filed the written statement denying the ownership relying upon the registered sale deed, then the plaintiff filing an application for amendment is an after thought which cannot be allowed at that belated stage. He further contended that the application for amendment filed after the lapse of four years cannot be allowed, when the proceedings are already in progress. Therefore, he sought to quash the impugned order passed by the trial Court by allowing the present writ petition. 8
9. I have given my anxious consideration to the arguments advanced by the learned Counsel for the petitioner and perused the entire material on record carefully.
10. It is an admitted fact that the respondent, who is the plaintiff has filed the suit for ejectment claiming that he is the owner of the suit schedule property and defendant is the tenant under him. When the matter was posted for defendant's evidence, the plaintiff has filed an application for amendment of the prayer column seeking ownership narrating the facts that after the death of his mother, he the only son has become the owner and hence, sought for declaration of title. It is for the plaintiff to establish his ownership by producing cogent evidence both oral and documentary after trial. Mere allowing to add para-1A and prayer 9 column (aa) for declaration does not amount to decreeing the suit and hence the plaintiff has to establish independently based on the oral and documentary evidence on record.
11. In so far as the contention of the learned Counsel for the petitioner that the application filed at a belated stage is not permissible, in view of the provisions of Order VI Rule 17 of the CPC, the same cannot be accepted. This Court and the Hon'ble Supreme Court time and again held that the provisions of Order VI Rule 17 of CPC is not mandatory and it is a directory, that at any stage of proceedings, amendment can be allowed only when the nature of the suit is not altered or does not cause any prejudice to the case of the defendant. Admittedly, in the present case, the petitioner has not shown how mere allowing to add the facts and 10 prayer would prejudice the case of the defendant. Since the defendant is relying upon the sale deed contending that he is the owner of the property, it is for the parties to establish independently after adducing and producing material documents. Then the trial Court has to decide the rights of the parties based on the oral and documentary evidence on record. Mere allowing the application, will no way prejudice the case of the defendant to establish his case independently.
12. The Hon'ble Supreme Court in the case of Sampath Kumar -vs- Ayyakkanu and Another reported in 2002(4) KCCR 2839 has held that the amendment can be allowed at any stage of proceedings unless the same does not alter the nature of suit. Admittedly the proposed amendment 11 sought will not change or alter the nature of the suit or cause of action.
12. Admittedly the proposed amendment sought will not change or alter the nature of the suit or cause of action. Mere addition of facts and insertion of prayer column will not amount to altering or changing the nature of the suit. The trial Court considering the entire material on record has recorded a finding that it is the established principle that the amendment applications have to be liberally dealt with and whenever it is made out that amendment is necessary to elucidate the matter in dispute and to avoid the multiplicity of proceedings, then such application has to be allowed.
13. Relying upon the judgments of the Hon'ble Supreme Court in the case of Baldev Singh and Others -vs- Manohar Singh and Another reported in 12 2006(3) CCC 573 and Surendra Kumar Sharma -vs- Makhan Singh reported in 2009 AIR SCW 6131, the trial Court has held that pleading-amendment-court should be extremely liberal in granting the prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. In the present case, it is the specific case of the plaintiff that the defendant has denied the plaintiffs title over the suit schedule property in his written statement. Hence, the plaintiff is seeking the relief of declaration. He has not proposed to delete any pleadings in his plaint, but he intends to insert some pleadings in respect of the proposed prayer. The proposed amendment sought by the plaintiff will not change the nature of the suit or cause of action and it will also not cause any serious injustice or substantial loss to the other side. 13 Accordingly, the trial Court allowed the application. The same is in accordance with law.
14. The petitioner has not made out any ground to interfere with the impugned order passed by the trial Court in exercise of writ jurisdiction under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
15. However, the Trial Court is directed to decide the suit based on the oral and documentary evidence without being influenced by any of the observations made by this Court as well as in the impugned order.
Sd/-
Judge Nsu/-