IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.11790/2018(GM-CPC) BETWEEN:
1. SMT. KRISHNAVENI, AGED ABOUT 69 YEARS, W/O LATE M. RAJU @ MUNIRAJU 2. SRI M GOPAL AGED ABOUT 44 YEARS, S/O LATE M. RAJU @ MUNIRAJU 3. SRI SOMASHEKAR AGED ABOUT 45 YEARS, S/O LATE M. RAJU @ MUNIRAJU 4. SRI RAGHUPATHI AGED ABOUT 46 YEARS, S/O LATE M RAJU @ MUNIRAJU PETITIONERS No.1 TO 4 ARE RESIDING AT NO.8 GOKULA NILYA BASAVANNA TEMPLE, BASAVANAGUDI STREET, ADUGODI, BENGALURU-560036.
5. SMT YASHODHA AGED ABOUT 49 YEARS D/O LATE M. RAJU @ MUNIRAJU RESIDING AT NO.11, THIPPAIAH LAYOIUT DEVASANDRA KRISHNANAGAR BENGALURU-560036.
... PETITIONERS (BY SRI A. NAGARAJA REDDY, ADVOCATE FOR SRI BHADRINATH R., ADVOCATE) AND:
1. SMT. R. SHANTHA AGED ABOUT 62 YEARS W/O LATE V. RANGANATHAN 2. SRI R THYAGARAJU AGED ABOUT 43EARS S/O LATE V RANGANATHAN 3. SRI R NETHAJI AGED ABOUT 30 YEARS S/O LATE V RANGANATHAN 4. SRI R VIJAYANANDA AGED ABOUT 29 YEARS S/O LATE V RANGANATHAN RESPONDENTS No.1 TO 4 ARE RESIDING AT NO.69, 3RD E CROSS, 2ND MAIN ROAD, NANJAPPA LAYOUT ADUGODI, BENGALURU-560030.
5. SRI M. ARDHANARI AGED ABOUT 66 YEARS, S/O LATE MUGHI CHETTIAR RESIDING AT NO.12 DODDALAKSHMAIAH HOUSE PATALAMMA STREET, ADUGODI BENGALURU-560030.
... RESPONDENTS (BY SRI P.T. MURALIDHARA, ADVOCATE FOR SRI RAMACHANDRA A., ADV., FOR C/R2, & R3 TO R5) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 20.1.2018 IN O.S.NO.5957 OF 2014 PASSED BY THE XXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BEGALURU ON INTERIM APPLICATION [I.A.NO.7] UNDER ORDER VI RULE 17 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE AS FOUND AT ANNEXURE-A AND CONSEQUENTLY TO ALLOW THE INTERIM APPLICATION [I.A.NO.7] FILED BY THE PETITIONERS/PLAINTIFFS UNDER ORDER VI RULE 17 READ WITH SECTION 151 OF CODE OF CIVIL PROCEDURE IN O.S.NO.5957/2014 PASSED BY THE XXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BEGALURU.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiffs filed the present writ petition against the Order dated 20.01.2018 made in O.S.No.5957/2014 on the file of the XXIX Addl. City Civil and Sessions Judge, Bengaluru, dismissing I.A.No.7 filed by the plaintiffs under Order VI Rule 17 of Code of Civil Procedure.
2. The plaintiffs filed O.S.No.5957/2014 for the relief of declaration and permanent injunction in respect of the suit schedule property contending that the plaintiffs are the owners of the property in question under registered sale deed dated 16.01.1963 and they are in possession and enjoyment of the same and the defendants have no manner of right, title and interest over the suit schedule property. The defendants filed written statement, denied the plaint averments and contended that the they are the owners in possession of the suit schedule property. An earlier suit filed by the defendants in respect of the very property came to be decreed and the appeal filed by the plaintiffs challenging the said judgment and decree came to be dismissed. Therefore, sought to dismiss the suit.
3. When the matter was posted for cross- examination of D.W.1, at that stage, plaintiffs filed an application for amendment of the plaint, to delete the letters ‘39 feet’ and to incorporate ‘30 feet’ in line No.5 of the para-3; to add ‘bearing site No.2, Corporation No.’ after the word ‘property’ in the first line of the schedule; to add ‘Corporation Division No.46, PID No. 67-89-3’ after the word ‘property bearing No.3’ in the first line; to delete the words ‘5th’ and incorporate in its place ‘1st’ in line No.2; and to add the words ‘Adugodi, Bangalore- 560 030’ after the word ‘Layout’ in line No.3.
4. The defendants filed objections to the said application.
5. The Trial Court, considering the application and objections, by the impugned order dated 20.01.2018, dismissed the application, mainly on the ground that, ‘the suit was filed in the year 2014, cross-examination of P.W.1 was completed on 08.08.2017. In the cross- examination also defence is taken in respect of identification of schedule property. Even in the chief- examination of DW-1 he has specified the description of schedule property. The application for amendment is filed after three adjournment given for cross-
examination of DW-1. If the application is allowed, it changes the description of the property as well as it affects the evidence already recorded’. Hence the present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Nagaraja Reddy, learned counsel for Sri Bhadrinath, learned counsel for petitioners contended that the impugned order passed by the Trial Court dismissing the application for amendment is erroneous and contrary to the very pleadings. After three adjournments given for cross-examination of D.W.1, application for amendment came to be filed. It does not change the nature of the suit. In paragraph 10 of the affidavit accompanying the application, it is specifically stated that, by way of amendment, the nature and character of the suit will not change and it does not introduce any new case. The amendment sought is only to incorporate the old property number. The descriptions are already stated in paragraph 3 of the plaint and documents are produced. As per the provisions of Order VI Rule 17 of Code of Civil Procedure, an application for amendment can be filed at any stage of the proceeding and the Court can allow or alter the pleadings for the purpose of determination of real question or controversy between the parties. The Trial Court erroneously dismissed the application without any reasons. Therefore, he sought to allow the writ petition.
8. Per contra, Sri Muralidhara, learned counsel for the respondents/defendants sought to justify the impugned order and contended that though the suit was filed in the year 2014 for the relief of declaration and injunction, and examination of P.W.1 was completed, the present application is filed at a belated stage when the matter was posted for cross-examination of D.W.1. The trial has already commenced. Therefore, application for amendment is not maintainable and therefore, sought for dismissal of the writ petition.
9. Having heard the learned counsel for the parties, it is undisputed fact that the plaintiffs filed suit for the relief of declaration and permanent injunction. The plaintiffs in categorical terms, at paragraph-3 of the plaint, have stated as under:
“3. The property bearing Site No.2, Corporation No.3 and Corporation Division No.46, PID No.67-89-3 situated at Neelasandra Thayappa Block, Adugodi, Bangalore-560 030, presently called as 1st Cross, Patel Balappa Layout, measuring East to West 40 feet and North to South 39 feet, which is morefully described in the schedule referred to as the schedule property.”
10. When the matter was posted for cross- examination of D.W.1, an application for amendment came to be filed by the plaintiffs. The Trial Court, though recorded a finding that, ‘Even in the chief- examination of D.W.1 the description of the schedule property has been specified. The application is filed after three adjournments given for cross-examination of D.W.1. So if the amendment application is considered, it changes the description of the property as well as it effects the evidence already recorded. It also takes away the right accrued to the defendant’.
11. The Trial Court failed to notice that at any stage of the proceeding, the amendment can be allowed, unless it changes the nature and character of the suit. Mere allowing the amendment of the schedule to the plaint on par with the pleadings as clearly stated in paragraph-3 of the plaint, will not affect the case of the other side. The Trial Court ought to have allowed the application instead of dismissing on technicality. My view is fortified by the dictum of the Apex Court in the case of Chakreshwari Construction Private Limited vs. Manohar Lal reported in (2017)5 SCC 212, wherein, at paragraphs 13 and 15, it is 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[Revajeetu Builders and Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37] , 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.”
15. It is for the reasons that firstly, the amendment proposed did not change the nature of the case originally set up by the appellant in the eviction petition; secondly, the amendment did not introduce any fresh cause of action; thirdly, the amendment was relevant for deciding the question of subletting and availability of alternative accommodation with the respondent;
fourthly, the facts proposed in the amendment not being in the personal knowledge of the appellant and having obtained from the State Department concerned recently, the same could be allowed to be brought on record for its consideration; fifthly, no prejudice was likely to be caused to the respondent, if the applications had been allowed because the respondent in such eventuality would have got an opportunity to make consequential amendment in his written statement and file additional documents in rebuttal; and lastly, in order to prove the case, the amendment proposed and permission to file documents should have been granted.
12. In view of the aforesaid reasons, the impugned order cannot be sustained and the application for amendment filed by the plaintiffs has to be allowed, subject to payment of cost.
13. In view of the above, writ petition is allowed. The impugned Order dated 20.01.2018 made in O.S.No. 5957/2014 on the file of the XXIX Addl. City Civil and Sessions Judge, Bengaluru, is hereby set-aside.
I.A.No.7 filed by the plaintiffs under Order VI Rule 17 of Code of Civil Procedure, is allowed, subject to payment of cost of `3,000/- payable by plaintiffs to the defendants, on the next date of hearing. The defendants are at liberty to file written statement, if any, to the amended plaint, within fifteen days from the date of receipt of certified copy of this Order.
14. Taking into consideration the fact that the suit is filed in the year 2014 and we are in 2019, the Trial Court is directed to expedite the suit itself, subject to cooperation by both the parties to the lis.
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JUDGE kcm