Karnataka High Court
Smt Rathnamma vs Smt Venkatamma on 25 July, 2018
Author: Krishna S Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.46607 OF 2013 (GM-CPC)
BETWEEN:
SMT RATHNAMMA
W/O P.MUNIRAJU,
AGED ABOUT 56 YEARS,
R/AT NO.12, PRARTHANA
BASAVARAJ LAYOUT,
J.P.NAGAR,
BENGALURU - 78.
REP. BY POWER OF ATTORNEY
HOLDER SRI.P.MUNIRAJU
... PETITIONER
(BY SRI. A MADHUSUDHANA RAO, ADVOCATE)
AND:
SMT VENKATAMMA
W/O VENKATASWAMAPPA,
SINCE DEAD BY HIS LRS
1. SRI.JAIPAL
S/O LATE VENKATASWAMAPPA,
AGED ABOUT 70 YEARS,
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2. SRI.V.PRABHAKAR
S/O LATE VENKATASWAMAPPA,
AGED ABOUT 65 YEARS,
BOTH ARE R/AT NO.572,
9TH CROSS, 8TH MAIN, 2ND STAGE,
KUMARASWAMY LAYOUT,
JP NAGAR POST,
BENGALURU-78.
3. SRI.SHIVARAM
S/O LATE VENKATASWAMAPPA,
AGED ABOUT 55 YEARS,
R/AT NO.142, 3RD CROSS,
BALAJI NAGAR,
GUDDADHAHALLI
MYSORE ROAD,
BENGALURU.
4. SRI KRISHNA
S/O LATE VENKATASWAMAPPA,
AGED ABOUT 38 YEARS,
5. SRI.V.RAJA
S/O LATE VENKATASWAMAPPA,
AGED ABOUT 35 YEARS,
6. SMT. RUKMINI
W/O GOVINDARAJU,
D/O LATE VENKATASWAMAPPA,
AGED ABOUT 45 YEARS,
RESPONDENT NO. 4 TO 6 ARE
R/AT NO.572, 9TH CROSS, 8TH MAIN 2ND STAGE, KUMARASWAMY LAYOUT, JP NAGAR POST, BENGALURU-78.
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7. SMT.SUMITHRA D/O LATE VENKATASWAMAPPA, AGED ABOUT 48 YEARS, HMT COLONY, JALAHALLI POST, BENGALURU - 560013.
8. ANNADORAI S/O SRI.A.GOPAL, MAJOR, R/AT NO.683, 24TH MAIN, JAYANAGAR, 9TH BLOCK, CORPORATION COLONY, BENGALURU - 69.
(R8- DELETED V.C.O DATED 21.01.2014)
9. BANGALORE DEVELOPMENT AUTHORITY REP. BY ITS COMMISSIONER, OFFICE OF BANGALORE DEVELOPMENT AUTHORITY, BENGALURU.
10. SRI.B.SURESH S/O SRI BOREGOWDA, AGED ABOUT 41 YEARS, R/AT NO.20, 8TH CROSS 3RD MAIN ROAD, VINAYAKANAGAR BENGALURU-560 050.
11. SMT.R.NAGARATHNA W/O LATE SRI.T.RAMAIAH AGED ABOUT 50 YEARS, R/AT NO.1010, 16TH MAIN ROAD, SRINAGAR BENGALURU-560050
12. SMT.C.KAVITHA W/O SRI.POORNA PRAGNA AGED ABOUT 25 YEARS, R/AT NO.698, 3RD MAIN ROAD ISRO LAYOUT BENGALURU-560 078.
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13. SRI.V.NARAYANASWAMY S/O LATE SRI.VENKATARAMAIAH AGED ABOUT 53 YEARS, R/AT NO.77/75, 2ND CROSS, KATTRIGUPPE EAST, BANASHANKARI 3RD STAGE, BENGALURU-560 085.
... RESPONDENTS (BY SRI. I G GACHCHINAMATH, FOR R9 S. VASANTH MADHAV, K. BALAKRISHNA & JAMADAGNI.P.S., ADVOCATES FOR R11 & 13) THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER FOUND AT ANNX-G DATED 07.09.2013 PASSED XXV ADDL CITY CIVIL JUDGE, AT BENGALURU (CCH-25) IN O.S.NO.1925/2000 ON I.A.NO.17.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDERS The petitioner/plaintiff has filed this Writ Petition challenging the judgment and order dated 07.09.2013 made by learned XV Addl. City Civil Judge, Bengaluru (CCH No.23), whereby, his application for amendment of plaint has been dismissed mainly on two grounds viz, (a) 5 no amendment is permissible, after trial has commenced and (b) the amendment sought is highly belated, with no explanation for the delay brooked.
2. After service of notice, the respondents have entered appearance through their counsels and have filed a Statement of Objections resisting the writ petition.
3. A very brief facts of the case are:-
(i) Petitioner's suit in O.S.No.1925/2000 seeks a judgment and decree inter alia for Specific Performance of an Agreement to Sell, entered into between himself and the defendant No.1. The said Agreement had comprised a particular house site and later, the allotment of the said site came to be cancelled and in lieu thereof, at long last, the suit site came to be allotted by the respondent-
Bengaluru Development Authority (hereafter 'BDA').
(ii) The respondent-BDA which was originally defendant No.3 in the suit, had not filed the Written Statement for several years and therefore, it filed an application dated 08.12.2006 seeking permission of the 6 court to file the Written Statement and accordingly, the one came to be filed. It is only thereafter, the petitioner came to know of the execution and registration of the sale deed dated 27.08.2003 and other developments as well, he filed the application for impleadment which came to be allowed on 03.11.2012.
(iii) Because of the availability of the information relating to registration and execution of the sale deed by the BDA in favour of the defendant No.1 who had sold the property in favour of defendant No.3 who in turn had sold it to others, the petitioner filed the application under Order VI Rule 17 of CPC in June 2013 seeking permission of the court to amend the plaint. The said amendment was opposed by the contesting defendants by filing objections. The court below vide impugned order denied permission to amend the pleadings.
4. The learned counsel for the petitioner/plaintiff firstly contends that the impugned order denying permission to amend the plaint on the ground that no amendment is 7 permissible after the trial has begun is legally erroneous inasmuch as the Proviso to Order VI Rule 17 of CPC which the Court below has acted upon came to be introduced by the Parliament by Act 22 of 2002 with prospective effect from 01.07.2002 and therefore, the suit filed prior to the said amendment is governed by the provisions of Pre- amendment provisions. Secondly, the counsel submits that there was sufficient material on record as to the developments that had happened subsequent to filing of the suit and that such developments were the basis of the impleading applications that came to be allowed by the court below in November 2012, the learned Judge of the court below fell in error in dismissing the amendment application on the ground that it is belated and the delay is not explained.
5. The counsel for the petitioner further submits that once the application for impleadment is allowed, half of the battle for amendment of the pleadings is won inasmuch as the intention of impleadment is to have the adjudication of the lis not only between the original parties thereto, but 8 also, the newly added parties in the altered scenario and therefore, denying permission to amend the pleadings militates against the very intent of the order whereby, impleadment was allowed. In other words, he submits, the purpose for which the impleadment of additional defendants is allowed, stands illogically defeated when the application for amendment of the pleadings is rejected. Lastly, he submits that the Triple Test in deciding amendment application has been lost sight of by the court below and that had it been adverted, the amendment application would have been allowed.
6. The learned counsel for the respondents/defendants, per contra vehemently submits that the amendment application apart from being highly belated, suffers from the lack of bonafide; the said application is filed only to harass the bonafide purchasers of the property who have already put up a building thereon and that the justice of the case warranted denial of permission to the plaintiff to amend his pleadings. He strenuously contends that enormous injustice and hardship would be occasioned to 9 the contesting defendants, should this court reverse the impugned judgment and order and thereby, allow the amendment application.
7. The learned counsel for the respondent further submits that the amendment to procedural laws is always with retrospective effect, going by the standard text books dealing with interpretation of statutes like the one of Maxwell, and therefore this principle having been lost sight of by rulings of the co-ordinate Bench of this Court, the same should be treated as per incuriam and therefore a path different from the beaten one can be tread.
8. I have heard the learned counsel for the petitioner and the learned counsel for the defendants. I have perused the copies of the Lower Court Records which the Bar had made available.
9. The suit is admittedly of the year 2000; the relief sought for in the suit are inter alia for a decree of Specific Performance of the Agreement to Sell in the year 1980; admittedly, there has been an order of Temporary 10 Injunction restraining alienation of the property; despite restraint order, the property has changed hands; the court below has allowed the impleadment of contesting defendants after considering their objections for such impleadment. In fact, the respondent-BDA had not filed the Written Statement for years despite service of court notice and it filed the one only on 08.12.2006 that too, with the permission of the court. Added to this, despite the order of the court, the BDA did not produce the documents relating to the sale of site in favour of defendant No.1. The plaintiff has made all reasonable efforts to procure the information and the necessary documents as narrated in the application itself. In these circumstances, the court below is not justified in holding that the application for impleadment was belated and there was no explanation for the delay so brooked.
10. As rightly contended by the learned counsel for the petitioner/plaintiff, the reason assigned by the court below for denying permission to amend the plaint fits into 2002 Amendment of CPC whereby, the rider to amendment of 11 the pleadings came to be introduced with prospective effect. The Apex Court in the case of State Bank of Hyderabad vs. Town Municipal Council, (2007) 1 SCC 765 has already ruled that the amendment in question is prospective in operation. A Co-ordinate Bench of this Court after referring to the said decision of the Apex Court, has in the case of Vinayaka House Building Co- operative Society V/s Sri. Chikkathimmaiah and others, reported in ILR 2015 KAR 4596 at Para 14 stated as under:
"14. In view of the said legal propositions, I am of the view that proviso to order 6 Rule 17 is not applicable to the present case since the suit was instituted on 26.02.1998, much earlier to the amendment Act 22 of 2002."
11. The contention of the learned counsel for the respondent that amendment to the procedural law is retrospective in operation, unless there is an intention to the contrary and therefore the decision of the co-ordinate Bench of this Court should be treated as per incuriam, may not come to his aid since the Co-ordinate Bench has only followed the law laid down by the Apex Court ie., AIR 12 2007(1) SCC 765. It is a settled principle of law of precedent, that certain aspects of the matter have not been adverted to, does not rob off the precedential value of the judgment of the Apex Court. This constitutes a complete answer to the said contention.
12. There is a lot of force in the submission for the learned counsel for the petitioner that in considering the application for amendment of pleadings, only three aspects are to be primarily looked into viz, (a) whether the amendment sought for is necessary in determining the real controversy of dispute between the parties, - (b) whether the application for amendment is bonafide - (c) whether the amendment sought for, if allowed, causes prejudice to the other side which cannot be compensated adequately in terms of money. This Triple Test has not been adverted to by the court below and therefore, the impugned order is vulnerable. Going by the very same Test, the amendment application needs to be allowed, of course subject to cost inasmuch as there is no legal injury that cannot be compensated in terms of money.
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12. For all the reasons stated above, the writ petition succeeds.
(i) The impugned judgment and order dated 07.09.2013 at Annexure - G to the Writ Petition denying permission to the petitioner/plaintiff to amend the plaint are quashed;
(ii) The petitioner's application dated 05.06.2013 filed under Order VI Rule 17 of CPC, 1908 at Annexure - E to the writ petition, seeking permission to amend the plaint is hereby allowed subject to the payment of cost of Rs.10,000/- to the defendant No.7 Sri.V. Narayanaswamy on the next date of hearing of the suit.
(iii) The petitioner/plaintiff shall file the Amendment Plaint within two weeks from today; the defendants in the suit shall be entitled to file the Additional Written Statement/s to the Amended Plaint in contemplation. 14
Lastly, since the suit is about 18 years old, the Trial Judge is requested to try and dispose of the same within a period of one year.
Sd/-
JUDGE cbc/