IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9Th DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.4480 OF 2018 (GM-CPC) BETWEEN:
SMT.MANGAMMA W/O.LATE CHANNAPPA AGED ABOUT 74 YEARS R/AT NO.2, BABASABARA PALYA KENGERI POST & HOBLI BANGALORE SOUTH TALUK-560 060 … PETITIONER (BY SRI M.R.RAJAGOPAL, SENIOR COUNSEL FOR SRI DATTATRAYA M.JOSHI, ADVOCATE) AND:
1. SMT.JAYAMMA W/O.RANGAPPA @ MUDDAPPA AGED ABOUT 74 YEARS R/AT BABASABARA PALYA KENGERI POST AND HOBLI BANGALORE SOUTH TALUK-560 060 2. SMT.KEMPAMMA @ JAVARAMMA W/O.LATE PUTTASWAMY GOWDA AGED ABOUT 76 YEARS R/AT BEGUR VILLAGE CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 116 3. SRI V.P.CHANDRE GOWDA S/O.LATE PUTTASWAMY GOWDA AGED ABOUT 41 YEARS R/AT BEGUR VILLAGE CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 116 4. SRI K.R.RAMACHANDRA S/O. RAMAPPA AGED ABOUT 48 YEARS R/AT KODIPALYA KENGERI POST & HOBLI BANGALORE SOUTH TALUK-560 060 … RESPONDENTS (BY SRI JAYAKUMAR S.PATIL, SENIOR COUNSEL FOR SRI CHANDRASHEKARA REDDY M.V., ADVOCATE FOR R2 & R3;
SRI UDAYA HOLLA, ADVOCATE GENERAL FOR SRI NITYANAND V. NAIK, ADVOCATE FOR R4; R1 IS SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 05.01.2018 (ANNEXURE- A) PASSED BY THE COURT OF XXIX ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY IN OS.NO.6177/2012 BY ISSUING A WRIT IN THE NATURE OF CERTIORARI AND PLEASED TO ALLOW IA.NO.15 (ANNEXURE-H) AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri M.R.Rajagopal, learned Senior Counsel appearing for Sri Dattaraya M.Joshi, learned Counsel for the petitioner.
Sri Jayakumar S.Patil, learned Senior Counsel appearing for Sri Chandrashekara Reddy M.V., learned Counsel for respondent Nos.2 and 3.
Sri Udaya Holla, learned Advocate General appearing for Sri Nityanand V.Naik, learned Counsel for respondent No.4.
2. The petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner inter alia seeks to assail the validity of the order dated 05.01.2018 passed by the trial Court, by which the application for amendment of the plaint filed by the petitioner came to dismissed.
4. The facts giving rise to filing of this petition briefly stated are that on 06.11.1989, one Sri Channappa, the husband of the petitioner and other members of the joint family of the husband of the petitioner have sold the property bearing Survey No.161 of Kengeri Village, Kengeri Hobli, Bangalore South Taluk in favour of Smt.A.Lakshmi. Thereafter, one B.C.Muniraju, the son of the petitioner has filed a civil suit in OS.No.5823/2004 before the City Civil Court, Bengaluru seeking a relief of partition and separate possession and a declaration to declare that the alienation made by his father Channappa i.e. the husband of the petitioner is null and void and also other consequential reliefs. On 15.12.2007, Smt.A.Lakshmi sold the schedule property in favour of respondent Nos.2 to 4.
5. The petitioner initiated the proceedings before the Assistant Commissioner in which challenge was made to the mutation entries made in favour of respondent Nos.2 to 4. Thereafter, the petitioner has filed a suit in OS.No.6177/2012 before the City Civil Court, Bengaluru against the respondents seeking relief of bare injunction to restrain the respondents from interfering with her alleged possession of the schedule property. Defendant No.4 filed the written statement on 14.08.2014 whereas defendant No.3 filed the written statement on 09.03.2015.
6. After the trial of the suit was over and the case was fixed for arguments, the petitioner filed an application in IA.No.15 for amendment of the plaint to include the prayer for declaration that the sale deeds dated 06.11.1989 and 15.12.2007 are null and void. The respondents filed a detailed objections in which it was stated that the application for amendment is barred by limitation and there is lack of due diligence on the part of the petitioner, who is the plaintiff. The trial Court vide order dated 05.01.2018 has dismissed the application filed by the petitioner inter alia on the ground that the application for amendment has not been made with due diligence and the same is barred by limitation.
7. Learned Counsel for the petitioner at the outset fairly submitted that the affidavit filed in support of the application for amendment was silent with regard to exercise of due diligence. It is further submitted that the trial Court ought to have appreciated that the amendment of the plaint was necessitated on account of the evidence indicated by the defendants in their written statement filed in the year 2014 and 2015. It is further submitted that the trial Court ought to have stated that if the petitioner was in a position to file an independent suit, she could not have very well sought the aforesaid relief by seeking the amendment.
In support of the aforesaid submission, reliance has been placed on the decisions of the Hon’ble Supreme Court in the cases of ‘L.C.HANUMANTHAPPA v. H.B.SHIVAKUMAR’, (2016)1 SCC 332; ‘MOHINDER KUMAR MEHRA v. ROOP RANI MEHRA’, (2018)2 SCC 132; ‘SHIV GOPAL SAH v. SITA RAM SARAUGI’, (2007)14 SCC 120; and ‘PANKAJA v. YELLAPPA’, (2004)6 SCC 415.
8. On the other hand, the learned Senior Counsel for the respondents has submitted that the proposed amendment was barred by limitation. Therefore, the same has rightly been rejected and the plaintiff has failed to show the due diligence. In support of his submission, he has placed reliance on the decisions of the Supreme Court in the cases of ‘L.C.HANUMANTHAPPA v. H.B.SHIVAKUMAR’, (2016)1 SCC 332; ‘SRI B.S.PRAKASH Vs.
SRI T.GNANESHWAR RAO’, 2016(4) KCCR 2995; ‘SMT.SHOBHA SURENDAR & ANR. vs. SRI C.R.NAGARAJA SETTY & ORS.’, ILR 2011 KAR 4489; and ‘M.REVANNA v. ANJANAMMA’, (2019)4 SCC 332.
9. I have considered the submissions made by the learned Counsel for the parties and I have perused the records.
10. It is a well settled in law that if the proposed amendment is barred by limitation, the same cannot be allowed. In this connection, reference may be made to the decision of the Supreme Court in the case of ‘SOUTH KONKAN DISTILLERIES v. PRABHAKAR GAJANAN NAIK’, (2008)14 SCC 632.
11. The Supreme Court in L.C.Hanumanthappa’s case (supra) has held that if the proposed amendment is barred by limitation, the Court cannot allow such application. It is pertinent to mention here that Article 58 of the Limitation Act, 1963 specifies that the limitation for suit for declaration is three years and the time for reckoning the limitation begins to run when the “right to sue accrues”. In the instant case, the right accrues to the petitioner dealt beyond the period of three years for application of proposed amendment. Therefore, the proposed amendment was rightly held to be barred by limitation.
12. Admittedly, the petitioner has not complied with the requirements contained in proviso under Order VI Rule 17 of CPC. The Supreme Court in M.Revanna’s case (supra) has held as follows:
“Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. An amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.”
13. Thus, in view of the aforesaid enunciation of law, it is evident that the petitioner has admittedly not pleaded due diligence in the application for proposed amendment, when the suit was fixed for final arguments. The order passed by the trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record to warrant interference of this Court in exercising the power under Article 227 of the Constitution of India.
14. Even otherwise, it is a well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].
In view of the aforesaid enunciation of law, I am of the opinion that no case for interference with the order passed by the trial Court is made out. Hence, I do not find any merit in the petition. The same fails and is hereby dismissed.
In view of dismissal of the writ petition, IA.No.2/2019 does not survive for consideration and the same is accordingly disposed of.
Sd/- JUDGE LB