IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.3991/2018 C/W WRIT PETITION No.1639/2018(GM-CPC) IN WP No.3991/2018 BETWEEN:
M C PONNAPPA AGED 56 YEARS, S/O M. KARIYAPPA, OFFICE AT NO.29, 3RD CROSS, SARASWATHIPURAM, MYSORE-570002 R/AT PLOT NO.3C, SANKALPA SAFAR, 5TH CROSS, V.V.MOHALLA, MYSORE-570002 (BY SRI ANANTHA NARAYANA B.N., ADVOCATE) AND:
... PETITIONER 1. SRI. CHANDRODAYA VIVIDODDESHA TRUST, REP BY ITS PRESIDENT, CHANDRU B, S/O BOREGOWDA, AGED 41 YEARS, R/O TELECOM EXTENSION, BOGADI, MYSORE-570016.
2. C. VENKATESH S/O CHOWDAIAH, AGED ABOUT 52 YEARS, R/O NO.53, 3RD CROSS, 2ND MAIN, JAYANAGAR, MYSORE-570014 3. NINGAIAH PRESIDENT, MYSORE & CHAMARAJANAGAR DISTRICT TREASURY EMPLOYEES, HOUSING CO-OP SOCIETY LTD., NO.361, 1ST CROSS, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSORE-570024.
(BY SRI R.S. RAVI, ADVOCATE FOR C/R1; SRI SHIVARAMU, H.C., ADVOCATE FOR R2;
... RESPONDENTS VIDE ORDER DATED 29.03.2019 NOTICE ON R3 IS DISPENSED WITH) … THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 15-11-2017 PASSED ON I.A.NO.XXXXII IN O.S.NO.240/2009 PENDING ON THE FILE OF THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE & CJM, MYSORE AS PER ANNEXURE-J TO THE WRIT PETITION AND THE SAID APPLICATION BE ORDERED TO BE DISMISSED;
IN WP No.1639/2018 BETWEEN:
C. VENKATSH AGED ABOUT 52 YEARS, S/O CHOWDAIAH RESIDING AT DOOR NO.55, 3RD CROSS, 2ND MAIN JAYANAGAR MYSORE 570014.
... PETITIONER (BY SRI SHIVARAMU H. C., ADVOCATE) AND:
1. CHANDRODAYA VIVIDODESH TRUST, REPRESENTED BY ITS PRESIDENT CHANDRU S/O BOREGOWDA AGED ABOUT YEARS, RESIDING AT TEECOM EXTENSION BHOGADI, MYSORE 2. M C PONNAPPA AGED ABOUT YEARS, S/O M KARIAPPA OFFICE NO.29, 3RD CROSS, SARASWATHIPURAM, MYSORE RESIDING AT PLOT NO.3C, SANKALPA SAFAR, 5TH CROSS, V V MOHALLA , MYSORE 3. NINGAIAH THE PRESIDENT MYSORE & CHAMARAJANAGAR DISTRICT TREASURY EMPLOYEES HOUSING CO OPERATIVE SOCIETY, NO.361, 1ST CROSS, D. SUBBAIAH ROAD CHAMARAJA MOHALLA, MYSORE. ... RESPONDENTS (BY SRI R.S. RAVI, ADVOCATE FOR R1;
SRI B. N. ANANTHA NARAYANA, ADVOCATE FOR R2; SRI R.C. NAGARAJ, ADVOCATE FOR R3) **** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 15.11.2017 PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT MYSORE IN OS NO.240/2009 ON IA NO.XXXXII AT ANNEXURE-J;
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER These two writ petitions are filed by defendant Nos.1 and 2 respectively against the order dated 15.11.2017 passed on I.A.42 filed made in O.S.No.240/2009 allowing the application filed under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure by the plaintiff for amendment of plaint.
2. The 1st respondent, who is the plaintiff filed O.S.No.240/2009 against the original defendant M.C. Ponnappa to enforce the specific performance of Contract dated 17.12.2008 and to direct the defendant to execute the Sale Deed in his favour in respect of the suit schedule property after receiving the balance sale consideration of Rs.23,75,000/- within the time fixed by the Court mainly contending that the defendant had entered into an Agreement of Sale in favour of the plaintiff on 17.6.2008 agreeing to sell the suit schedule property for a sale consideration of Rs.2,03,75,000/-
i.e., Rs.10,00,000/- per acre and totally 20 acres 15 guntas of land. It is further contended that on the date of agreement, the defendant had received a sum of Rs.1,75,00,000/- in cash and also a sum of Rs.5,00,000/- through cheque and as such, in total the defendant had received a sum of Rs.1,80,00,000/- from the plaintiff as an advance amount towards the sale consideration. Inspite of the repeated request, the defendant had not executed the sale deed. Therefore, he filed a suit.
3. The original defendant filed his written statement denying the entire averments made in the plaint and contended that there is no cause of action to file the suit and hence, sought for dismissal of the suit. Defendant No.2 filed written statement denying the plaint averments and contended that he got the Release Deeds dated 31.10.2008 and 16.1.2009 executed in favour of defendant No.1 and sought for dismissal of the suit. The 3rd defendant filed written statement denying the averments and contended that he is the owner of the property in question in pursuance of the registered Sale Deed dated 23.7.2013.
4. When the matter was posted for defendants’ evidence, at that stage, the plaintiff filed an application – I.A.XXXXII under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure for amendment to amend the averments made in para-3 at line No.8 of the plaint after the words ‘has received’ by adding ‘a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) in cash and earlier the 1st defendant has already received a sum of Rs.1,65,00,000/- (Rupees One Crore Sixty Five Lakhs Only) through cheques. Hence, the 1st defendant has totally received”. Further at para-3 at line No.9 of the plaint to delete the word ‘in cash’ and also certain facts in para-2 at line No.4 and para-6 of the plaint to the effect that after filing of the suit the 2nd defendant is included and filed his written statement stating that item Nos.2, 3, 5, 6 and 7 was jointly purchased by Sale Deed dated 26.9.2007 and subsequently the 1st defendant executed Release Deeds dated 31.10.208 and 16.1.2009. Hence the 2nd defendant has not paid any sale consideration in respect of item Nos.2, 3, 5, 6 and 7 of the plaint schedule property, etc., and sought to add in the cause title at the name of 3rd defendant after the word society to add as “new name Karnataka State Treasury Employees House Building Co-operative Society Ltd.’ and at para-18 at prayer (a) column at Line No.5 after the word under Law to mention as (a i) to direct defendants No.2 & 3 also to join with the 1st defendant to execute the registered Sale Deed in respect of the schedule property and also to declare, declaring that alleged Release Deeds dated 31.10.2008 and 16.1.2009 of the 2nd defendant and Sale Deed dated 23.7.2013 of 3rd defendant are null and void and is not binding on the plaintiff. The said application was accompanied by the affidavit of the plaintiff. The defendants resisted the said application by filing objections.
5. The trial Court considering the application and objections by the impugned order dated 15th November, 2017 allowed I.A.XXXXII filed under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure for amendment. Hence, the present writ petitions are filed by 1st and 3rd defendants.
6. I have heard the learned Counsel for the parties to the lis.
7. Sri B.N. Ananthanarayana, learned Counsel for the petitioner in W.P.No.3991/2018 contended that the impugned order passed by the trial Court allowing the application for amendment after commencement of trial is not permissible. He would further contend that the plaintiff filed original suit only against defendant No.1 and subsequently defendant Nos. 2 and 3 were impleaded. The plaintiff amended the plaint on two occasions; for the first time by impleading 2nd defendant and thereafter, the 3rd defendant was impleaded for the second time. The plaintiff led evidence in support of his case on 25.8.2009 and also was cross-examined by the defendants. After conclusion of evidence, the plaintiff filed an application for the third time on 28.7.2017 seeking additions and alterations to the plaint averments totally contradicting the earlier contentions and the stand taken by the plaintiff. Therefore, he contended that the same is impermissible.
8. The learned Counsel would further contend that the trial Court failed to notice the prayer by way of amendment is also barred by limitation as the prayer sought for declaration was evidently filed after three years from the date of filing of the suit. The suit was filed on 5.4.2009 and the application for amendment was filed on 28.7.2017 after a lapse of 8 years by way of amendment which is patently barred by limitation. Therefore, he sought to allow the writ petitions.
9. Sri H.C. Shivaramu, learned Counsel for the petitioner in W.P.No.1639/2018 contended that the impugned order passed by the trial Court allowing the application for amendment is erroneous and contrary to the material on record. He would further contend that initially the burden is on the plaintiff to prove his case. The impugned application for amendment was allowed without reference to either of the Release Deeds dated 31.10.2008 and 16.1.2009 or the Sale Deed dated 23.7.2013 executed in favour of the 3rd defendant and absolutely there is no consideration with reference to the objection raised and the learned Judge has proceeded to allow the application mainly on the ground that these are the subsequent events and will not cause prejudice to the case of the other side.
10. Per contra, Sri R.S. Ravi, learned Counsel for the respondents in all the writ petitions sought to justify the impugned order passed by the trial Court in allowing the application and contended with vehemence that the trial Court considering that the 3rd defendant, who is purchaser of the property in question under a registered Sale Deed dated 23.7.2013 during the pendency of the suit is hit by Section 52 of the Transfer of Property Act. If the very transaction is hit by Section 52 of the Transfer of Property Act, question of considering limitation as alleged would not arise. He would further contend that in view of the subsequent developments after filing of the suit, the plaintiff was interested in impleading the 2nd and 3rd defendants and hence was forced to file an application for amendment by bringing it to the notice of the Court the subsequent developments and impleadment after impleadment of defendant Nos. 2 and 3. The proposed amendments sought by the plaintiff is only adding payments in cash and the proposed amendment will not change either the cause of action or nature of the suit. The proposed amendment is imperative for proper and effective adjudication of the controversy between the parties. He would further contend that at any stage of the proceedings, the application for amendment can be allowed, unless and until it changes or alters the nature of the suit or prejudice the case of the either side. By mere allowing the amendment as sought for by the plaintiff to declare the Release Deeds in favour of defendant No.2 and the Sale Deed executed in favour of the 3rd defendant on 23.7.2013 during the pendency of the suit does not amount to decreeing the suit and ultimately the Court can raise an issue with regard to objection raised by the defendants about limitation and the same can be considered along with the main. Therefore, he sought to dismiss the writ petitions.
11. Having heard the learned Counsel for the parties, it is an undisputed fact that the plaintiff filed a suit for specifc performance of agreement of Sale Deed dated 17.12.2008 said to have been executed by the defendant for a total Sale consideration of Rs.2,03,75,000/- the defendant has received a sum of Rs.1,80,00,000/- as advance. Defendant No.1 seems to have executed a Release Deed in favour of defendant No.2 and subsequently the 3rd defendant came to purchase the property from the 2nd defendant on 23.7.2013 and therefore, the plaintiff was forced to file an application for impleading of both defendant Nos. 2 and 3. After filing of the written statement by both 2nd and 3rd defendants on 24.2.2010 and 19.6.2014, an amendment application came to be filed on 28.7.2017 to add certain facts and to delete the words in ‘cash’ and to substitute the word ‘cheques’ about receipt of amount of Rs.1,80,00,000/- by defendant No.1 and to direct defendant Nos.2 and 3 also to join with defendant No.1 to execute the registered Sale Deed in respect of the schedule property and to declare the alleged Release Deeds dated 31.10.2008 and 16.1.2009 of the 2nd defendant and Sale Deed dated 23.7.2013 of 3rd defendant are null and void and not binding on the plaintiff.
12. The fact of alleged Sale of Agreement dated 17.6.2008 is denied by defendant No.1. It also not in dispute that the 3rd defendant purchased the property in question on 23.7.2013 during the pendency of the suit is always hit by the provisions of Section 52 of the Transfer of Property Act, but the fact remains that when the plaintiff filed an application to declare the Release Deeds dated 31.10.2008 and 16.1.2009 of the 2nd defendant and the Sale Deed dated 23.7.2013 of 3rd defendant and the said application was opposed by the defendants by filing detailed objections. The learned Judge while passing the impugned order except stating that there are some developments and improvements after impleadment of defendant Nos. 2 and 3, the objections raised by the defendants with regard to amendment of Release Deeds and Sale Deed has not been considered. Though the Sale Deed came to be in existence during the pendency of the suit, the same has to be considered by the learned Judge as to whether the proposed amendment of declaring the Sale Deed and Release Deeds are null and void and not binding on the plaintiff, whether it affect and prejudice the case of the defendants or alters or change the nature of the suit. The learned Judge has not considered in the entire impugned order about the Release Deeds and the Sale Deed and the contentions raised thereon by the defendants.
13. Though the learned Counsel for the plaintiff tried to persuade this Court with regard to limitation that it is always a mixed question of fact and law and it can be decided along with main suit, it is true that if there is dispute with regard to law of limitation, it can be decided at the time of adjudication of the main suit but the fact remains that the learned Judge has not considered the said aspect also in the present impugned order. In the absence of any specific finding on the Release Deeds and alleged Sale Deed purchased by the 3rd defendant during the pendency of the suit and the same has not been discussed , the impugned order cannot be sustained and the matter requires reconsideration by the learned Judge taking into consideration the objections filed by defendant Nos.2 and 3 and the law laid down by the Hon’ble Supreme Court when the plea of limitation is raised as to whether it can be considered separately or along with main suit has to be reconsidered.
14. For the reasons stated above, writ petitions are allowed. The impugned order dated 15.11.2017 passed on the application in O.S.No.240/2009 by the learned Principal Senior Civil Judge and CJM, Mysore in both writ petitions is hereby quashed. The matter is remitted to the trial Court to reconsider the application filed under Order VI Rule 17 r/w 151 of the Code of Civil Procedure after taking into consideration the objections and pass appropriate orders in accordance with law.
15. However, the learned Judge shall not be influenced by any of the observations made by the trial Court and this Court while considering I.A.42 and shall proceed to consider the application afresh strictly in accordance with law.
Sd/- Judge Nsu/-