IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.37093/2018 (GM – CPC) BETWEEN:
Mr. Ismail Khan S/o Ahmed Khan Aged about 36 years R/at No.3, 2nd Floor 4th Cross, Rahat Ali Layout Mattekar Lane Near Al-Hameed Welfare Association Mashan Road, Arabic College Post Bengaluru – 560 045.
(By Sri Raghunath M.D., Advocate) AND:
Mrs. M. Margaret W/o Mr. Muthu Peter A Aged about 61 years R/at No.C-9, B&C Colony Berlice Street, Nanjappa Circle Shanthi Nagar Bengaluru – 560 025.
...Petitioner ... Respondent This Petition is filed under Article 227 of the Constitution of India, praying to quash the orders of I.A.No.2 passed by the XXVI Additional City Civil & Sessions CCH-20, Mayo Hall, Bengaluru in O.S.No.27300/2012 dated 30.07.2018 vide Annexure-E and etc.
This Petition coming on for preliminary hearing, this day, the Court made the following:
O R D E R Petitioner-defendant has filed the present writ petition against the order dated 30.07.2018 allowing I.A.No.2 under Order VI Rule 17 of CPC made in O.S.No. 27300/2012 on the file of the XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru.
2. Respondent-plaintiff has filed O.S.No.27300/2012 for the relief of mandatory injunction and permanent injunction in respect of suit schedule property. In the plaint it is contended that defendant was the absolute owner of the suit schedule property and he sold the same in favour of plaintiff under a registered sale deed dated 28.01.2010 and ever since the date of purchase, the plaintiff is in peaceful possession and enjoyment of the said property. But the defendant has occupied the suit schedule property prior to the sale and he did not handed over the vacant possession of the same to the plaintiff inspite of its sale being completed as per law. Inspite of several requests made to the defendant to hand over the vacant possession of the suit schedule property, defendant did not heed to the same. Hence, plaintiff filed the suit.
3. Defendant has filed written statement denying the plaint averments and contended that the suit filed by the plaintiff for the relief of mandatory injunction is not maintainable and further contended that plaintiff has no cause of action to file the suit and the Court Fee paid is insufficient. Plaintiff is neither owner nor in physical possession of the suit schedule property. Hence, sought to dismiss the suit.
4. When the matter was posted for plaintiff’s evidence, plaintiff has filed application under Order VI Rule 17 of CPC, for amendment of the plaint to incorporate the prayer for declaration and injunction in the place of mandatory injunction. The said application was resisted by the defendant by filing objections. The trial Court by considering the application and objections, by the impugned order dated 30.07.2018 allowed I.A.No.2 and permitted the plaintiff to amend the plaint and to file the amended plaint along with fresh valuation slip and requisite additional Court Fee within 14 days from the date of the said order. Hence, the present petition is filed by the petitioner-defendant.
5. I have heard the learned Counsel for the petitioner.
6. Learned counsel for petitioner-defendant contended that the impugned order passed by the trial Court allowing I.A.No.2 for amendment is erroneous and contrary to law. He further contended that suit is of the year 2012 and the amendment is filed in the year 2015, which is hopelessly barred by limitation and as such trial Court ought to have dismissed the application on the ground of delay and latches. He further contended that plaintiff claims his title under the registered sale deed dated 28.01.2010 and suit is filed in the year 2012 and the application is filed in the year 2015, on that ground alone, the application is liable to be dismissed as suit is barred by limitation. He further contended that trial Court has erred in coming to the conclusion without considering the material on record and therefore sought for allowing the writ petition.
7. Having heard the learned counsel for the petitioner, it is not in dispute that plaintiff has filed original suit for mandatory injunction on the basis of registered sale deed dated 28.01.2010 said to have been executed by the defendant in favour of plaintiff. Inspite of several requests, defendant did not deliver possession of the suit schedule property. The defendant has filed written statement denying the averments made in the plaint and contended that suit for mandatory injunction is not maintainable.
8. Before commencement of evidence of the parties, plaintiff has filed an application for amendment praying to incorporate the prayer for declaration and injunction in the place of mandatory injunction. The trial Court after considering the application and objections has recorded the finding that defendant has filed the written statement on 14.08.2013 wherein he has denied the title of the plaintiff over the schedule property. Whereas, plaintiff has filed this application on 08.03.2015. Even though defendant has raised the dispute regarding the point of limitation, an issue can be raised in that connection. At this juncture, though defendant has denied the title of the plaintiff over the suit schedule property, plaintiff has to be allowed to amend the plaint as sought for otherwise, it would lead to multiplicity of proceedings. Moreover, amendment sought will not in any way alter or change the nature of the suit or cause any prejudice to the defendant. Accordingly, application came to be allowed.
9. Learned counsel for petitioner contended that original suit is of the year 2012 and amendment sought in the year 2015, which is barred by limitation. The issue on limitation is mixed question of law and facts, which has to be adjudicated only at the time of trial. My view is fortified by the judgment of the Hon’ble Apex Court in the case of Vaish Aggarwal Panchayat vs. Inder Kumar and others reported in AIR 2015 SC 3357, wherein the Hon’ble Supreme Court has held at paragraphs No.16 and 17 as under:
“16. After so stating, the Division Bench opined that in the facts of the said case, the suit could not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a missed question of fact and law and on ex facie reading of the plaint it could not be held that the suit was barred by time.
17. Coming to the case at hand we find that the allegations in the plaint are absolutely different. There is an asseveration of fraud and collusion. There is an assertion that in the earlier suit a decree came to be passed because of fraud and collusion. In such a fact situation, in our considered opinion, the High Court has fallen into error by expressing the view that the plea of res judicata was obvious from the plaint. In fact, a finding has been recorded by the High Court accepting the plea taken in the written statement. In our view, in the obtaining factual matrix there should have been a trial with regard to all the issues framed.”
10. Therefore, the contention of the counsel for the petitioner stated supra cannot be accepted. It is also not in dispute that the earlier prayer sought is for mandatory injunction on the basis of registered sale deed said to have been executed by the defendant. Since, the defendant denied the title of the plaintiff in his written statement, plaintiff was forced to file application for amendment for declaration and injunction. The amendment sought is imperative for proper adjudication of the case and bonafide. The amendment will not cause prejudice to the case of the defendant. The refusal of amendment will cause injustice and lead to multiple litigation and the proposed amendment sought will not change the constitutionally or fundamentally the nature or character of the case.
In view of the above, the order passed by the trial Court is just and proper. Petitioner-defendant has not made out any ground to interfere with the same in exercise of power under Article 227 of Constitution of India. Accordingly, petition is dismissed.
However, it is made clear that the issue with regard to limitation is always mixed question of law and facts, which can be urged along with the main suit.
All the contentions are left open to the parties. Ordered accordingly.
Sd/-
JUDGE SN