Karnataka High Court
Sri T V Gopalakrishna Shetty vs Smt. Papamma on 31 May, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.36715 OF 2015 (GM-CPC)
BETWEEN:
SRI T V GOPALAKRISHNA SHETTY
S/O VENKATARAMA SHETTY
AGED ABOUT 79 YEARS
AGRICULTURIST
R/O CHIKKATHIRUPATHI VILLAGE,
LAKKUR HOBLI, MALUR TALUK
DIED
1A) SMT. PAPACHAMMA,
W/O LATE T.V.GOPAL KRISHNA,
AGED ABOUT 75 YEARS,
R/AT CHIKKATHIRUPATHI VILLAGE,
LAKKUR HOBLI, MALUR TALUK
KOLAR DISTRICT.
(AMENDED AS PER COURT ORDER DTD: 13/07/2021)
...PETITIONER
(BY SRI.A MADHUSUDHANA RAO, ADVOCATE)
AND:
1. SMT. PAPAMMA
W/O MUNIVENKATAPPA
AGED ABOUT 63 YEARS
R/AT CHIKATHIRUPATHI VILLAGE,
LAKKUR HOBLI, MALUR TALUK
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2. SRI. KODANDA REDDY
S/O LATE ANNAIAH REDDY
AGED ABOUT 39 YEARS
R/AT DEVARABISANAHALLI VILLAGE
BELLANDUR POST, VARTHUR HOBLI,
BANGALORE EAST TALUK-560087
3. SMT. M. SUMITHAR
W/O SANTHOSH
AGED AOBUT 38 YEARS
R/AT NO.21, OPP. KODANADARAMA TEMPLE,
DODDA NEKKUNDARAMA VILLAGE & POST,
VARTHUR HOBLI,
BANGALORE EAST TALUK-560087
4. SRI. MUNIRAJU
S/O LATE NANJAPPA
AGED ABOUT 48 YEARS
5. SRI. KRISHNAPPA
S/O LATE NANJAPPA
AGED ABOUT 43 YEARS
RESPONDENT NOS.4 AND 5 ARE
R/AT ANCHEMUSKUR VILLAGE,
LAKKUR VILLAGE, MALUR TALUK-563130
...RESPONDENTS
(BY SRI.VEERANNA G TIGADI, ADVOCATE FOR R1, R4 & R5;
R3 SERVED; NOTICE TO R2 IS DISPENSED V/O DTD: 29/10/2015)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER FOUND AT ANNX-H PASSED BY THE LEARNED SENIOR
CIVIL JUDGE AND JMFC, MALUR ON I.A.NO.XXII IN
O.S.NO.60/2012 DT.24.8.2015 ALLOW THIS WRIT PETITION WITH
COSTS.
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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the plaintiff who is questioning the order of the learned Judge passed on I.A.No.23 filed under Order 6 Rule 17 read with Section 151 of CPC.
2. The petitioner has instituted a suit in O.S.No.60/2012 seeking relief of declaration of title and for consequential relief of permanent injunction. The subject matter of the suit is agricultural land bearing Sy.No.11/2 measuring 2 acres 16 guntas. The plaintiff claims that suit property was originally owned by his father namely Venkatarama Shetty and that he was in actual possession and enjoyment over the suit schedule property during his lifetime. The petitioner further contended that his father's name was duly mutated to the revenue records indicating his ownership and actual possession and enjoyment over the suit schedule 4 property. The petitioner also claimed that his father was paying land revenue and he died about 40 years back and after his death, the present petitioner/plaintiff being the only son has inherited to the suit schedule property and has become absolute owner. The plaintiff claimed that after the death of his father he is in actual possession and enjoyment over the suit schedule property.
3. The petitioner/plaintiff further contended that respondent/defendant is a stranger and she is no way concerned to the suit schedule property. The petitioner has also stressed upon the fact that the respondent/defendant belongs to Balajiga community whereas the petitioner/plaintiff belongs to Nagartha community. The plaintiff/plaintiff has further specifically pleaded that defendant is no way related to the family of the plaintiff. On these set of facts, the present suit is filed alleging that respondent/defendant without any semblance of right and title is falsely asserting and claiming right over the suit schedule property and the cause of action 5 indicated in the plaint is that respondent/defendant in collusion with the revenue authorities has managed to get her name mutated to the revenue records.
4. The respondent/defendant, on receipt of summons, tendered appearance filed written statement and stoutly denied the entire averments made in the plaint. At paras 9 and 10 of the written statement apart from specifically denying the pleadings made in the plaint, the respondent/defendant has specifically contended that the plaintiff is falsely asserting title over the suit schedule property by misinterpreting the registered document dated 16.09.1927. The respondent/defendant contended that the said document is a mortgaged document but, however, by portraying it is a registered sale deed, the father of the plaintiff has mislead the revenue authorities by stating that the registered document is a sale deed instead of mortgage deed and in collusion with the revenue authorities, the plaintiff got the revenue entries mutated in the name of plaintiff's father.
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5. The petitioner/plaintiff to substantiate his claim has let in ocular evidence and has also produced documentary evidence. To counter the claim of the petitioner/plaintiff, the respondent/defendant has also let in rebuttal ocular and documentary evidence. After conclusion of trial, the plaintiff has addressed his arguments and learned counsel appearing for the respondent/defendant also has concluded his arguments. When the matter was set in for reply, if any, the petitioner/plaintiff has come up with this application filed in I.A.No.23 seeking amendment of the plaint.
6. The learned Judge after hearing both the parties and having examined the rival contentions has proceeded to reject the application by holding that the present application is not at all maintainable since the proposed amendment would virtually introduce a new case and would change the nature of the suit itself. The learned Judge was also of the view that this application is moved by the petitioner/plaintiff at the fag end of the proceedings and therefore, the Court felt that the 7 proposed amendment cannot be allowed and therefore rejected the application.
7. Learned counsel for the petitioner/plaintiff reiterating the grounds urged in the plaint would submit to this Court that the petitioner/plaintiff has already let in documentary evidence which is in consonance with the proposed amendment sought in I.A.No.23. He would contend that the proposed amendment is only explanatory in nature and no inconsistent plea is sought to be raised in the plaint by way of proposed amendment.
8. To buttress his arguments, he has placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Abdul Rehman and Another vs. Mohd. Ruldu and Others1. Referring to the said judgment, he would take this Court through the relevant para 11 and would contend that having regard to the facts and circumstances of the case, this is a fit case where the Court ought to have taken a lenient 1 (2012) 11 SCC 341 8 view as the amendment would not cause any prejudice to the respondent/defendant. Referring to the said judgment, he would also point out that Court is vested with wide powers to allow amendment and therefore, he would contend that the learned Judge erred in not exercising discretion judiciously and the same has resulted in miscarriage of justice. He would also refer to Head note 'B' in support of the contention and would contend that the proposed amendment would not change the nature of the suit and therefore, ought to have allowed the proposed amendment.
9. Learned counsel would also place reliance on the judgment of the Hon'ble Apex Court in the case of Mahila Ramkali Devi and Others vs. Nandram (Dead) through legal representatives and Others2. Placing reliance on the said judgment, he would contend that the Courts are bound to take lenient view while considering amendment application unless the material on record indicates that the application is 2 (2015) 13 SCC 132 9 filed with malafide intention. He would contend that the material on record does not indicate any malafide intention on the part of the petitioner/plaintiff.
10. Per contra, learned counsel appearing for the respondents/defendants repelling the arguments canvassed by the learned counsel for the petitioner would submit to this Court that the proposed amendment would virtually introduce a new case. Referring to the pleadings in the plaint, he would contend that the plaintiff has specifically contended that his father was the absolute owner of the suit schedule property. The plaintiff never intended to assert his title on the basis of mortgage deed. Therefore, the proposed amendment if allowed would introduce a new case which would be inconsistent with the pleadings raised at the first instance and therefore, he would contend that the learned Judge was justified in rejecting the application. He would also bring to the notice of this Court that the petitioner/plaintiff has been relentlessly filing interlocutory applications time to time. 10 Referring to the statement of objections at para 7, he would bring to the notice of this Court that the petitioner/plaintiff sought for reopening of the evidence that was already let in and PW.1 was recalled and further evidence was led. He would also point out that the defendants have let in evidence and have examined 3 witnesses and documents are also marked. When the matter was set in for reply, a feeble attempt is made by the petitioner/plaintiff to seek amendment. He would submit to this Court that this application lacks bonafides and the same is filed to protract the hearing of the suit. On these set of defence, he would request this Court to dismiss the writ petition.
11. Heard learned counsel for the petitioner/plaintiff and learned counsel for the respondents/defendants. Perused the records. I have meticulously examined the pleadings of the parties and the averments made in the affidavit filed in support of the amendment application and also defence set up in the objections filed to the amendment application. I have 11 also given my anxious consideration to the reasons assigned by the learned Judge while rejecting the application.
12. Before this Court adverts to the reasons assigned by the learned Judge, it would be useful for this Court to refer to the pleadings of the respective parties. Paras 2 and 3 of the plaint would be relevant and useful for this Court to examine as to whether petitioner/plaintiff at the fag end of the proceedings can be permitted to take a totally contrary stand to what is stated at paras 2 and 3. Paras 2 and 3 are culled out and the same reads as under:
"2. The plaintiff most humbly submit that the suit schedule property bearing Sy.No.11/2 measuring 2 acres 16 guntas of Anchemuskur Village more fully described in the schedule originally belongs to Venkatarama Shetty, the father of the plaintiff. He was in actual possession and enjoyment of the suit schedule property, his name has been entered in the RTC extracts which clearly shows that he was the absolute owner and in actual possession and enjoyment of the suit schedule property in katha bearing No.39, he was also paying land revenue and 12 he who died more than 40 years back and after the death of Venkatarama Shetty the plaintiff is the only son i.e., who inherited the property and become the absolute owner and in actual possession and enjoyment of the suit schedule property by growing the dry crops in the land and even his name is also entered in column No.12/2 in the RTC extract since 1975-76.
3. The plaintiff most humbly submit that the defendant is a stranger and she is nothing to do with the suit schedule property and also family of the plaintiff. She belongs to Balajiga community and the plaintiff belongs to Nagartha community. The defendant is not related to the family of the plaintiff. Some how she manages to get mutation and katha transferred as if property belongs to one Muniramaiah S/o. Venkataravanappa and claims that he died issueless and defendant claiming that she is the daughter of sister of late Muniramaiah and she colluded with the revenue authorities and manages to get entered her name in the revenue documents and after came to know the same the plaintiff filed an appeal before Assistant Commissioner, Kolar in R.A.No.329/2010-11 and the learned Assistant Commissioner also ordered for status quo and the 13 matter is pending before Assistant Commissioner, Kolar."
13. If the averments made in paras 2 and 3 are meticulously examined, this Court would find that there is absolutely no ambiguity to the pleadings. The petitioner/plaintiff asserts that this property was owned by his father and he was the absolute owner and after his death, he has inherited the suit schedule property and therefore, claims relief of declaration of title. Para 3 would further strengthen his claim of title over the suit schedule property through his father. At para 3, he has specifically stated that defendant is no way related to the plaintiff. There is absolutely no whisper in regard to the transactions between the plaintiff's father and the original owners.
14. Now let me examine the averments made at paras 9 and 10 of the written statement filed by the defendants. At paras 9 and 10, the defendants have clearly narrated the facts 14 and a specific contention is taken that the present suit for declaration of title is misconceived. She has also specifically pleaded in the written statement that plaintiff has consciously sought relief of declaration by placing reliance on the revenue documents, wherein the mutation is effected by claiming title on the basis of sale deed and not mortgage deed.
15. If the pleadings at paras 2 and 3 of the plaint are conjointly read with the pleadings at paras 9 and 10 of the written statement, this Court would find that the plaintiff has never made a claim under the mortgage deed. The plaintiff claims that his father was the absolute owner of the suit schedule property and after his death, he being the sole class- I heir has inherited to the suit schedule property and on these set of pleadings, relief of declaration to declare him as the absolute owner is sought and consequential relief of injunction is sought by asserting that plaintiff is in possession. 15
16. The contention of the petitioner/plaintiff that due to inadvertence, the plaintiff has not referred to the mortgage transactions and therefore, by way of proposed amendment, he intends to bring in necessary amendment on the premise that the documents are already placed on record cannot be acceded to. The entire basis on which the title is asserted by the plaintiff is that his father was the absolute owner of the suit schedule property. Now by way of proposed amendment, after conclusion of trial, the petitioner/plaintiff intends to take a totally contrary and conflicting stand and also intends to assert source of title through a totally different document.
17. By the proposed amendment, this Court would find that the petitioner intends to introduce a totally new case. By the proposed amendment, the petitioner/plaintiff does not intend to incorporate fresh pleadings which are explanatory in nature. Though learned counsel for the petitioner repeatedly kept on submitting to this Court that the proposed amendment is only in the form of explanatory in nature but with great 16 respect, this Court would not accede to the said argument. The pleadings in the proposed amendment would in no way align with the existing pleadings in the plaint. The Hon'ble Apex Court in the judgment cited supra, was of the view that the amendment of the plaint is permissible where the proposed amendment is clear and explicit what was already implicit in the plaint. Such a situation is not found in the present case on hand. An inference may be drawn that plaintiff placing reliance on the revenue documents has come up with the present suit asserting title by contending that his father was the absolute owner of the suit schedule property. Now at the fag end of the proceedings, he cannot be permitted to take a totally contrary view and thereby contend that his father acquired right under the registered mortgage deed and therefore, the rights would emanate under the registered mortgage deed. Such a recourse cannot be entertained, more particularly when the defendant way back in 2002 has notified the plaintiff by taking a specific contention at paras 9 and 10 17 of the written statement. Therefore, I am of the view that the proposed amendment would cause immense prejudice to the defendants if allowed at this stage. In that view of the matter, I am of the view that the order under challenge is in accordance with law and would not warrant any interference at the hands of this Court.
18. This Court has no cavil to the propositions laid down in the judgments cited by the learned counsel for the petitioner/plaintiff. The judgment cited by the learned counsel for the petitioner/plaintiff would not come to the aid of the plaintiff in the present case on hand.
19. I do not find any error committed by the learned Judge. Accordingly, the writ petition is dismissed. Any observations made during the course of this order shall not influence the learned Judge while deciding the case on merits.
Sd/-
JUDGE CA