IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.No.46830/2018 (GM-CPC) BETWEEN:
1. Carol Rodrigues, W/o.Dhiren Rodrigues, Aged 37 years 2. Dhiren Rodrigues S/o.Everest Rodrigues, Aged 43 years, Both are residing at No.1604 A, Eternia, Hiranandani Gardens, Powai, Mumbai-400 076 Rep. by their GPA Holder, Evarist Rodrigues, S/o. Late Casmir Rodrigues, R/at Flat No.201, Maurishka Towers, Mallikatta, Mangalore – 575 002 (By Sri.B.V.Krishna, Advocate) …Petitioners AND:
1. K.M.Manohar Kumar S/o. Late K.J.Bhandary, Aged 70 years, R/at “Mandara”, 1st Floor, 15-7-399, Arya Samaj Road, Mangalore – 575 003 2. Smt.Usha Manohar W/o. K.M.Manohar Kumar, Aged 61 years, R/at.”Mandara”
Ground Floor, Arya Samaj Road, Mangalore – 575 003 (By Sri.M.Sudhakar Pai, Advocate for R1; R2 is served but unrepresented) …Respondents This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order dated 07.07.2018 passed on I.A.No.XI in O.S.No.862/2010 which application was filed under Order VI Rule 17 of CPC., 1908 passed by the Hon’ble Civil Judge and JMFC., Mangalore, D.K.District, produced as Annexure – A as null, void and illegal and etc., This Writ Petition coming on for Orders, this day, the Court made the following:
O R D E R The defendant Nos.2 and 3 filed the present writ petition against the order dated 07.07.2018 on I.A.No.11 made in O.S.No.862/2010 allowing the application filed by the plaintiff under Order VI Rule 17 read with Section 151 of Code of Civil Procedure.
2. The plaintiff filed a suit for declaration that settlement deed dated 15.03.1978 is sham and concocted documents which pertains to immovable property bearing Sy.No.76/P1 measuring 27 cents in Alape Village, Mangalore Taluk, D.K.District and for consequential reliefs.
3. The suit filed for declaration that the settlement deed dated 15.03.1978, purported to have been executed in favour of the defendants is sham, bogus, concocted document and does not bind right, title and interest of the plaintiff qua “A” schedule property and for permanent prohibitory injunction restraining the defendants from alienating, transferring, mortgaging “A” schedule property in favour of any third party or creating any third party interest in the “A” schedule property, merely contending that the “A” schedule property originally belonged to the mother of the plaintiff i.e., Smt.Leela J.Bhandary, who had executed registered Moolageni Chit dated 07.07.1970 qua “A” schedule property in favour of the plaintiff and handed over the possession of the schedule property subject to certain conditions enumerated in the said Moolageni Chit.
4. It is further contended that when the matter stood thus, on 17.09.2010 when the plaintiff had noticed some of the unidentified persons surveying the schedule property, the plaintiff was shocked and enquired with them and was informed defendant No.1 claiming herself as Moolageni Holder and she has already entered into an agreement for sale with other defendants. The other defendants also revealed to the plaintiff that the defendant No.1 is claiming her right on the basis of the registered transfer deed dated 15.03.1978 alleged to have been executed by the plaintiff in her favour and etc., 5. The defendant Nos.2 and 3 filed the Written Statement denying the plaint averments and contended that the defendant No.1 is in possession and enjoyment of the suit schedule property under the settlement deed dated 15.03.1978 and defendant Nos.2 and 3 purchased the suit schedule property from the defendant No.1 for valuable consideration as per the registered sale deed dated 28.08.2010 and they are in possession and enjoyment of the suit schedule property and sought for dismissal of the suit.
6. When the matter was posted for evidence, at that stage, the plaintiff filed an application for amendment of the plaint on 07.06.2018, i.e., for amendment in the plaint schedule to insert the extent from ‘0-15’ to ‘0.27’ cents and delete the boundaries and insert the property more fully described in the settlement deed dated 15.03.1978, contending that the suit is filed for declaration that the purported settlement deed dated 15.03.1978 is sham, bogus and concocted document. It shows an extent of 27 cents in Sy.No.76/1P1. However, due to inadvertence the extent in the plaint schedule was shown as 0- 15 acres instead of 0-27 acres. Again previously the boundaries given were in respect of 15 cents and not of 27 cents and therefore, the said application was filed for amendment. The same was resisted by the defendants contending that the application filed is nothing but introducing altogether new cause which is not permissible and sought for dismissal of the suit. The trial court considering the application and objections, by the impugned order dated 07.08.2018 allowed the amendment application filed by the plaintiff to incorporate the schedule and the extent. Hence the present writ petition.
7. I have heard the learned counsel for the parties to the lis.
8. Sri B.V. Krishna, learned counsel for the petitioners- defendants contended with vehemence that the impugned order passed by the trial court allowing the application for amendment is erroneous and contrary to the material placed on record. He would further contend that in the application filed for amendment, the applicants shall mention as to what prevented the applicant from narrating the proper facts and also that they could not do it inspite of their due diligence which clearly indicates that application is liable to be rejected for want of required law. He further contends that suit is filed in the year 2010 and after eight years application for amendment came to be filed. He would further contend that pleadings of the plaintiff done in the year 2010, which is now sought to be modified or amended, has clearly given the advantage to the defendants and if the amendment is now allowed, which goes back to the date of the suit itself, by virtue of the said order, takes away the advantage enjoyed by defendants 2 and 3. which goes back to the date itself by virtue of the said order, takes away the advantage by the defendants 2 and 3 who have acquired the rights by bar of limitation, the same sought to be taken away by way of amendment, the very purpose of filing the application under Order VI Rule 17 of Code of Civil Procedure would be defeated. Therefore, he sought to allow the writ petition.
9. Per contra, Sri. Sudhakar Pai, learned counsel appearing the respondent No.1 sought to justify the impugned order and contended that in the application/plaint, it was specifically pleaded that the alleged settlement deed dated 15.03.1978 purported to have been executed in favour of the first defendant herein is sham, bogus and concocted document and sought for declaration that the said settlement deed dated 15.03.1978 is not binding on the right, title and interest of the plaintiff in respect of the ‘A’ schedule property. By mistake and in inadvertence, instead of mentioning 0-27 cents it has been wrongly mentioned as 0-15 cents and the boundaries was given for 0-15 scents and not of 0-27 cents. However, he would contend that at any stage, the amendment can be allowed if it does not alter or change the nature of the suit. Mere allowing the amendment application will not prejudice the case of the defendants. Therefore, he sought to dismiss the writ petition.
10. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiff filed the suit for declaration that the settlement deed dated 15.03.1978 said to have been excluded in favour of the first defendant is sham, bogus concocted document and does not bind the right, title and interest of the plaintiff qua ‘A’ schedule property and for permanent prohibitory injunction restraining the first defendant from alienating, transferring, mortgaging the plaint schedule property. The defendants 2 and 3 filed Written Statement contending that they set up ownership on the basis of the registered sale deeds over the suit schedule property and sought for dismissal of the suit.
11. In the application for amendment, it is only sought to amend the plaint schedule to the extent from 0-15 cents to 0-27 cents and boundaries to the extent of 0-27 cents in terms of the settlement deed dated 15.03.1978. The Trial Court considering the application and objections has recorded a finding that it is needless to mention that the suit is one filed for settlement or relief of declaration that the purported settlement deed dated 15.03.1978 has been executed in favour of the defendant is sham, bogus and concocted document and it is not binding on the right title and interest of the plaintiff in respect of ‘A’ schedule property. Hence, in such an event, the extent of property which was involved in the settlement deed will become the subject matter of the suit. When such being the case, the claim made by the plaintiff that due to inadvertence the extent was wrongly mentioned has to be believed. Since the subject matter of the suit involves whole the extent of property mentioned in the settlement deed, this application has to be considered. Moreover, as per amendment to Order VI Rule 17 of CPC, the application for amendment has to be considered liberally before the commencement of trial. If an application has been filed to rectify the extent and boundaries in terms of the settlement deed dated 15.03.1978, ultimately that is the subject matter of the suit and therefore the trial court allowed the application.
12. Though, Sri B V Krishna, learned counsel tried to persuade this Court that the amendment application cannot be allowed at a belated stage for changing the extent of the land relying upon the judgment dated 17.04.2018 in case of DR. JOSEPH RABINDRANATH PAIS VS. MR. DEREK ALOYSIUS SUNIL KMAR PAIS PRABHU passed by this Court while considering the provisions of Article 59 of the Schedule in the Limitation Act, 1963, was of the opinion that the respondents therein clearly enunciate that whether the parties acquire a right under the law of limitation and if the same is sought to be taken away by amending the pleading, such an application in such circumstances should be refused.
13. In the facts and circumstances of the case, the judgment relied upon by the learned counsel for the petitioner has no application to the facts of in this case. The relief sought in the present suit is to declare that the purported settlement deed dated 15.03.1978 which was executed in favour of the first defendant is sham, bogus and concocted one and the trial court ultimately based on the oral and documentary evidence has to decide whether the alleged settlement deed dated 15.03.1978 is genuine or not.
14. The amendment sought in the present application is to modify the extent mentioned in the settlement deed as 0-27 cents instead of 0-15 cents and if they are mentioned in the said document mere allowing the amendment, no prejudice will be caused to the defendants and while allowing the application the trial court ought to have permitted the defendants to file Additional Written Statement if any, taking the ground of limitation if any. Mere incorporating the larger extent and boundaries in terms of the settlement deed dated 15.03.1978 which is the subject matter of the suit and no prejudice will be caused to the case of the defendants 2 and 3 and refusing the said amendment may lead to injustice and multiple litigations and the proposed amendment will not change character and nature of the suit.
15. In view of the above, the impugned order passed by the trial court is just and proper. Petitioners have not made out any good ground to interfere with the same in exercise of power under Article 227 of Constitution of India. Accordingly, petition stands dismissed.
16. However, it is needless to observe that if any Additional Written Statement is filed and if the defendants have taken the ground of limitation in their defence, then the same has to be considered by the learned trial judge at the time of the adjudication of the suit on merits in accordance with law.
Sd/- JUDGE KPS/Bsv