IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF APRIL, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.48964/2016(GM-CPC) BETWEEN:
M/S JAMNALAL BAJAJ SEVA TRUST HAVING ITS OFFICE AT WARDHA & ALSO AT 2ND FLOOR "BAJAJ BHAVAN" NARIMAN POINT, MUMBAI REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, COL. BALA KUMAR NAIR, S/O COL. NGK NAIR, AGED ABOUT 58 YEARS, C/O VISWANEEDAM, MAGADI ROAD, BANGALORE-560 091.
... PETITIONER (BY SRI SHANKARANARAYANA BHAT N., ADVOCATE ) AND:
1. SMT. JAYALAKSHMAMMA AGED ABOUT 85 YEARS W/O C. CHENNAIAH, RESIDING AT THAMMAIAHNAPALYA, SHAMBUDEVANAHALLI VILLAGE, MADABAD HOBLI, MAGADI TALUK, BANGALORE RURAL DISTRICT-562120.
2. SMT. LAKSHMAMMA, MAJOR, W/O M. GIRIGOWDA, RESIDING AT GANGOTRI, HANUMANTHANAGAR, VISWANEEDAM POST BANGALORE-560 091.
... RESPONDENTS (BY SRI M. G. RAMAKRISHNAIAH, ADVOCATE FOR R1; R2 IS SERVED BUT UNREPRESENTED ) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE COURT OF THE XII ADDITIONAL CITY CIVIL JUDGE AT BANGALORE IN O.S.NO.2163/2011 ON IA XX DATED 15.3.2016 VIDE ANNEXURE-G IN THIS WRIT PETITION.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner filed this writ petition against the Order dated 15.03.2016 made in O.S.No.2163/2011 on the file of the XII Addl. City Civil Judge, Bengaluru, dismissing I.A.No.20 filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure.
2. The petitioner/plaintiff filed O.S.No.2163/2011 for declaration of title that the plaintiff-trust is the absolute owner in possession of the suit schedule property and to declare the sale deed dated 15.10.2007 is illegal, fraudulent, void and not binding nor affecting the legal rights, title and interests on the plaintiff Trust and for permanent injunction, contending that the plaintiff is the owner of the suit schedule property on the basis of the registered sale deed 22.02.1960 and revenue entries standing in the name of the plaintiff. The defendants have no manner of right, title and interest in interfering with the suit schedule property and further contended that the defendant No.2 is well aware of the fact that the sale deed dated 15.10.2007 is fraudulent sale deed and cannot be enforced in law etc., 3. The defendant No.1 filed written statement, denied the plaint averments and contended that the suit filed buy the plaintiff for declaration and injunction is not maintainable and there is no cause of action for the plaintiff to file the suit. It was contended that the first defendant has purchased the property in question in pursuance of the irrevocable general power of attorney dated 21.01.1981 along with affidavit and sought for dismissal of the suit. The second defendant filed written statement, denied the plaint averments and contended that the plaintiff executed the power of attorney in favour of first defendant on 21.01.1981 and the first defendant has alienated the same to the second defendant under registered sale deed dated 15.10.2007 and therefore, second defendant is the owner of the suit schedule property and suit is not maintainable and sought for dismissal of the suit.
4. After completion of the evidence of both sides, when the matter was posted for arguments, at that stage, plaintiff filed I.A.No.20 under Order VI Rule 17 of Code of Civil Procedure to amend the plaint by inserting an alternative prayer, as under:
“In the event that this Hon’ble Court comes to the conclusion that the defendant No.2 is in possession of any part of the suit schedule property, then direct her to deliver vacant physical possession of schedule property to the plaintiff.”
5. In the affidavit accompanying the application, it was contended that, “the defendant No.1 has filed her evidence affidavit through GPA Holder, stating that the defendant No.2 purchased the suit schedule property from the defendant No.1 and has constructed a building. The defendant No.2 has also filed her evidence affidavit through GPA holder stating that she has constructed a building in the suit schedule property after purchase of the property from the defendant no.1 and that she is in actual physical and exclusive possession and enjoyment of the said property. The defendant Nos.1 and 2 have reiterated the said fact in their cross-examination”. Therefore, sought to allow the application. The defendants opposed the application by filing statement of objections, contending that, the application for amendment is highly belated and cannot be entertained, when evidence has already commenced and the matter is posted for arguments. It is further contended that the plaintiff is not sure as to whether he is in possession or second defendant is in possession. The application is filed only to circumvent the law, and therefore, sought to dismiss the application. The Trial Court, considering the application and objection, by the impugned Order dated 15.03.2016, dismissed the application. Hence the present application is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Shankaranarayana Bhat, learned counsel for the petitioner/plaintiff contended that the impugned Order passed by the Trial Court dismissing the application for amendment filed by the plaintiff is erroneous and contrary to the material on record. He further contended that though the plaintiff filed suit for declaration and permanent injunction contending that he is in possession of the property in question, in view of the affidavit evidence filed by both defendant Nos.1 and 2, in case, if the Trial Court comes to conclusion that the second defendant is in possession, then, the alternative prayer sought through amendment application is essential for the purpose of proper assessment and conclusion and for giving relief to the parties. Therefore, the Trial Court, ought to have allowed the application in order to avoid multiplicity of proceedings. He further contended that the amendment sought will no way prejudice the case of the defendants or alter the nature of the suit. Ultimately, it is for the plaintiff who approached the Court for the relief of declaration, to establish that he is the owner of the property in question, then only, consequential relief of possession will follow. Therefore, sought to allow the writ petition.
8. Per contra, Sri Ramakrishnaiah, learned counsel for the first respondent/first defendant sought to justify the impugned Order and contended that the plaintiff in the plaint at paragraph 10 has categorically contended that the plaintiff-trust is in actual, physical, vacant and exclusive possession and enjoyment of the suit schedule property and no other person has any right, title or interest in respect of the same. Having stated that he is in possession, now plaintiff cannot turn round and file application for amendment seeking possession, without admitting possession of defendant No.2 in respect of suit schedule property. He further contended that the present application filed for alternative relief of possession is highly belated having been filed when the matter is posted for arguments on main and therefore, the same is not permissible. He further contended that the amendment application cannot be allowed to be filed by the parties after the commencement of the trial. Admittedly, matter is at the stage of arguments. Therefore, application is highly belated and cannot be entertained. He further contended that the Trial Court, considering the application and objections, has held that the Court has no jurisdiction to entertain the amendment application filed at the stage of arguments. The plaintiff has withheld the material facts and not come to the Court with clean hands and therefore, is not entitled to the relief sought for in the application which is contrary to the pleadings. Therefore, sought to dismiss the writ petition. In support of his contentions, learned counsel relied upon the judgment of the Hon’ble Supreme Court in the case of Vidyabai and others vs. Padmalatha and another reported in AIR 2009 SC 1433 it is held that filing of amendment application after commencement of the Trial is barred.
9. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed suit for declaration and permanent injunction in respect of the suit schedule property and also for declaration to declare that the sale deed dated 15.10.2007 executed by the defendant No.1 in favour of the defendant No.2 is not affecting the legal rights, title and interests of the plaintiff trust and for permanent injunction. Though in paragraph 10 of the plaint, it is contended that, the plaintiff-trust is in actual, physical, vacant and exclusive possession and enjoyment of the suit schedule property and no other person has any right, title or interest in respect of the same, in the application filed for amendment, it is specifically pleaded that in view of the written statement filed by the defendant Nos.1 and 2 and affidavit evidence of defendant Nos.1 and 2 that defendant No.2 has constructed the building in the suit schedule property after purchasing the property from defendant No.1 and therefore, is in exclusive possession of the property and the same was reiterated by the defendants in their cross examination and therefore, by abundant caution, plaintiff has filed the present application for amendment as stated above. Firstly, it is for the plaintiff to establish that he is the owner of the suit schedule property. Only after establishment of such title, consequently, relief of possession would arise. In case, the plaintiff fails to succeed in establishing the ownership, then proving possession would not arise at all. Ultimately, if the plaintiff is able to succeed in getting the relief of declaration of title and the Court comes to conclusion that defendant is in possession, then plaintiff has to file one more suit for possession, having obtained title from the Court. It is nothing but multiplicity of proceedings.
10. Though an application for amendment ought to have been filed before commencement of trial, the fact remains that where such amendment is sought and it prejudices the case of the defendant and alter the nature of the suit, ultimately, the Court has to do substantial justice based on oral and documentary evidence and cannot deprive the rights of the parties on technicality. When rights of the parties in respect of immovable property is involved and substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done on technicality. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
11. Though suit was filed in the year 2011 and application is filed on 22.03.2014 when the matter was posted for arguments, the Trial court ought to have allowed the application by imposing cost, because, the plaintiff has to prove his case based on pleadings, oral and documentary evidence. Mere allowing the amendment application to insert the additional prayer will not amount to decreeing the suit.
12. Though Sri Ramakrishnaiah, learned counsel for the first respondent relied upon the judgment of the Hon’ble Supreme Court in the case of Vidyabai (supra), to contend that the amendment of pleadings cannot be entertained, once the trial has commenced, cannot be accepted for the simple reasons that the amendment of pleadings can be allowed at any stage of the proceedings, unless it alters the nature of the suit or prejudices the case of the otherside. Therefore, the said judgment cannot be relied upon.
13. The Hon’ble Supreme Court, while considering the provisions of the Order VI Rule 17 of Code of Civil Procedure in the case of Chakreshwari Construction Private Limited vs. Manohal Lal reported in (2017) 5 SCC 212, at paragraph 13 and 16, held as under:
13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers v. Narayanaswamy & Sons (2009) 10 SCC 84: this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p. 102) “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.”
16. It is true that there was some delay on the part of the appellant in filing the applications but, in our opinion, the appellant had explained the delay. One cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the lis”.
14. The learned Judge, by the impugned Order, proceeded to dismiss the application for amendment filed by the plaintiff, mainly on the ground that the Court has no jurisdiction to entertain the amendment of plaint at the final stage of arguments. When the plaintiff has withheld the material facts and not come to Court with clean hands, he is not entitled to seek amendment particularly prayer regarding possession which is not only contrary, but also inconsistent to the pleadings which is not permissible at the final stage of arguments.
15. Mere amendment to insert additional prayer of possession based on same set of facts and evidence already adduced and produced, permitting the plaintiff to adduce alternative prayer without adducing evidence would not prejudice the case of the other side. Ultimately, it is for the plaintiff to establish his title. Then only consequential prayer of possession arises.
16. In view of the aforesaid reasons, the impugned Order passed by the Trial Court cannot be sustained. The writ petition is allowed. The impugned Order dated 15.03.2016 made in O.S.No.2163/2011 on the file of the XII Addl. City Civil Judge, Bengaluru, dismissing I.A.No.20 filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, is hereby set-aside. I.A.No.
20 filed before the Trial Court is allowed, subject to payment of cost of `15,000/- payable by the plaintiff to the defendants.
17. The plaintiff shall file the amended plaint on or before the next date of hearing and shall not proceed to seek any further time to lead further evidence on the proposed amendment and shall proceed with the case.
In view of the allowing of the application for amendment, the defendants are permitted to file additional written statement, if any. It is made clear that, any observations made by this Court while allowing the writ petition shall not come in the way of either of the parties in establishing the right, title and interest, based on oral and documentary evidence already adduced and produced before the Trial Court and the Trial Court is directed to dispose of the suit strictly in accordance with law.
Sd/- JUDGE kcm