IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NOS.46518 OF 2017 (GM-CPC) AND 49120 OF 2017 BETWEEN:
SRI.C.K.NARAYANAPPA S/O LATE KAMBAIAH AGED ABOUT 65 YEARS NATIVE OF CHIGANI PALYA KOTHAGERE HOBLI KUNIGAL TALUK RESIDING AT NO.313 1ST MAIN ROAD BEHIND AMBHA MAHESWARI TEMPLE KAMAKSHIPALYA BANGALORE ... PETITIONER (BY SRI.LOHITASWA BANAKAR, ADVOCATE FOR SRI.SHIVAKUMAR N., ADVOCATE) AND:
SRI.B.SRINIVASA @ SIDDAPPA S/O BOREGOWDA R/AT NO.OLD NO.1, NEW NO.7/8 YERAMMA B. LAKSHMAMMA KALYANA MANTAPA OPP: SRIRAMA BAJANA MANDIRA VENKATARAMANAPPA GARDEN 60 FT. ROAD, MOHAN KUMARA NAGARA YESHVANTHAPURA BANGALORE – 560 022 ... RESPONDENT (BY SRI.M.KRISHNA MURTHY, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE IMPUGNED ORDERS IN O.S.NO.209/2012 ON I.A.9 AND I.A.10 DATED 11.9.2017 FILED UNDER ORDER 26 RULE 10(A) R/W SEC. 151 OF CPC AND I.A.10 FILED UNDER ORDER 6 RULE 17 R/W SEC. 151 OF CPC RESPECTIVELY PASSED BY THE LEARNED PRL. CIVIL JUDGE, JMFC, KUNIGAL, AT ANNEXURE-G, ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER These writ petitions are filed against the order dated 11.9.2017 passed on I.A.Nos.9 and 10 made in O.S.No.209/2012, rejecting the applications filed by the plaintiff, under 26 Rule 10(A) read with Section 151 of the Code of Civil Procedure and the application under Order 6 Rule 17 of the Code of Civil Procedure.
2. The present petitioner, who is the plaintiff before the Trial Court, filed the suit for a declaration that the alleged forged registered sale deed dated 24.11.2001 executed by the plaintiff in favour of the defendant is null and void and the same is not binding on the plaintiff holding that the suit schedule property is a joint family property of the plaintiff, contending that the suit schedule property is the ancestral property of the plaintiff and his family members and the same fell to the share of the plaintiff under the panchayath palupatti dated 10.1.1981, between the plaintiff and his brothers. The defendant has is no way concerned to the plaintiff and the suit schedule property. By playing fraud and by way of misrepresentation the defendant has created a forged sale deed dated 24.11.2001, in respect of the suit property in his favour in collusion with the attesting witnesses and the scribe etc.
3. The defendant filed the written statement, denied the entire plaint averments and contended that the defendant has purchased the suit property from the plaintiff for a valuable consideration of `80,000/- under a registered sale deed dated 24.11.2001 and the defendant was put in actual possession on the date of sale and the revenue records stand in his name. The plaintiff has sold the suit property for the benefit of his family and the defendant is a bona fide purchaser. The suit filed by the plaintiff is frivolous and not maintainable and sought for dismissal of the suit.
4. After completion of evidence on both sides, when the matter was posted for arguments, at that stage, the plaintiff filed an application under Order 26 Rule 10(A) read with Section 151 of the Code of Civil Procedure, to refer the disputed signature and thumb impression of the defendant in the registered sale deed dated 24.11.2001 and admitted signature of the plaintiff and also thump impression of the plaintiff taken by the Trial Court in open Court to the Forensic Science Laboratory, that is, the hand writing and thumb impression expert to compare the said thumb impressions and signatures and to submit the report.
5. The plaintiff also filed another application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure to amend the plaint by inserting paragraph 8(a) with regard to impersonation of forged signature and thumb impression of the plaintiff on the alleged sale deed, contending that the defendant, who is in no way concerned with the plaintiff, has created the document, reiterating the averments made in the plaint. The said applications were resisted by the defendant by filing objections.
6. The Trial Court after considering the applications and objections, by the impugned order, rejected both the applications filed by the plaintiff. Hence, the present writ petitions are filed.
7. I have heard the learned counsel for the parties to the lis.
8. Sri.Lohitaswa Banakar, the learned counsel appearing for Sri.Shivakumar N., the learned counsel for the petitioner contended that the impugned order passed by the Trial Court rejecting the applications is erroneous and contrary to the material on record. He would further contend that the Trial Court has failed to appreciate the fact that the plaintiff/petitioner has filed the application under Order 26 Rule 10(A) read with Section 151 of the Code of Civil Procedure to refer the disputed signature and thumb impression of the plaintiff for proper adjudication of the matter. The Trial Court has not exercised its discretion as contemplated under Order 26 Rule 10(A) of the Code of Civil Procedure. He further contended that at any stage of the proceedings, the parties to the suit can amend the pleadings, as held by the Hon’ble Supreme Court unless it does not prejudice the case of the other side. Mere allowing the facts in addition to the pleadings, already pleaded in the plaint, only by inserting the word impersonation and mere elaboration of the pleadings of the plaint, no way prejudices the case of the defendant and ultimately, it is for the plaintiff to establish his case based on the oral and documentary evidence. The Trial Court ought to have allowed the application for amendment, as well as the application for referring the signatures and thumb impressions to the hand writing expert. The same has not been done in the present case. Therefore, he sought to quash the impugned order passed by the Trial Court by allowing the present writ petitions.
9. Per contra, Sri.M.Krishna Murthy, the learned counsel appearing for the defendant/respondent sought to justify the impugned order and contended that the application filed to refer the signatures and thumb impressions to the hand writing expert is not permissible, since it is the case of the plaintiff that though summon was issued to the attesting witnesses and the scribe, they are not supporting the case of the plaintiff. In fact, the complaint lodged by the plaintiff against the defendant, witnesses and scribe ended in filing of ‘C’ report. Therefore, the Trial Court was justified in rejecting the application for handwriting expert. He would further contend that the application for amendment was filed when the matter was posted for arguments, which is impermissible in view of the provisio to Order 6 Rule 17 of the Code of Civil Procedure. Therefore, he sought for dismissal of the writ petitions.
10. Having heard the learned counsel for the parties, it is the specific case of the plaintiff that the defendant without any manner of right, title or interest has created and forged the registered sale deed dated 24.11.2001, in collusion with the witnesses and scribe. Therefore, he sought to declare the sale deed dated 24.11.2001, as null and void and not binding on the plaintiff. The same is specifically disputed by the defendant by filing written statement and contended that the sale deed was executed by the plaintiff himself for a valuable consideration and the same is a registered document. The present suit filed is totally with mala fide intention. Therefore, he sought to dismiss the suit. The Trial Court considering the application filed under Order 26 Rule 10A read with Section 151 of the Code of Civil Procedure and objections recorded a specific finding that the manner in which the defendant has played fraud or misrepresented is not specifically pleaded in the plaint. Thus, it is clear that before sending the document for handwriting expert, it is necessary to examine the attesting witnesses and scribe of the document. The dispute is with respect to the sale deed, which is duly registered before the Sub-Registrar. The plaintiff has examined himself as PW1 and other two witnesses. The defendant has examined himself as DW1. Both the plaintiff and defendant have failed to summon the attesting witnesses and scribe of the document. The plaintiff has failed to assign reasons for non-summoning of the attesting witnesses of the document to examine in the case. In the absence of averments as to whether the attesting witnesses who are direct witnesses to the execution of sale deed are available or not, the plaintiff cannot seek for an expert opinion.
11. It is stated that by the learned counsel for the parties at the Bar that a private complaint was made by the plaintiff against the defendant, witnesses and the scribe in PCR No.50/2012 under the provisions of Section 200 of the Criminal Procedure Code read with Section 420 of Indian Penal code. The learned Senior Civil Judge, Kunigal has referred the matter under Section 156(3) of the Criminal Procedure Code for investigation to the C.P.I. of Kunigal. After investigation of the matter, the PSI has submitted ‘C’ report on 29.10.2014. Till today, either the concerned police or the present petitioner have not taken any further steps.
12. In view of the categorical finding recorded by the Trial Court that the petitioner has not taken any steps to summon either the attesting witnesses or the scribe of the document and in the absence of any averments whether the attesting witnesses, who are direct witnesses to the execution of the sale deed, are available or not, the Trial Court is of the opinion that the application filed by the plaintiff under Order 26 Rule 10A of the Code of Civil Procedure cannot be allowed and accordingly, rejected the application. The same is in accordance with law. This Court cannot interfere exercising its supervisory jurisdiction under Article 227 of the Constitution of India. However, it is needless to observe that the admitted signatures and the disputed signatures can very well be compared by the learned Judge, while disposing of the suit on merits, by exercising power under Section 73 of the Indian Evidence Act. With the above observations, W.P. No.46518/2017 is disposed of.
13. Insofar as the rejection of the application for amendment of the plaint is concerned, as already stated above, the suit is filed for declaration. The same is denied by the defendant. The amendment sought is only to insert paragraph 8(a) for narration of collusion between the defendant and witnesses and impersonation. The same has been already pleaded in the original plaint. The plaintiff wants to add as to how the defendant by way of impersonation forged the signature and thumb impression on the alleged document. Mere allowing of such amendment will in no way prejudice the case of the defendant. Mere allowing the amendment does not amount to granting relief sought in the suit. Ultimately, it is for the plaintiff to prove that the allegations made in the plaint as well as in the amended plaint based on the oral and documentary evidence.
14. It is well settled that at any stage of the proceedings, amendment can be allowed, unless it prejudice the case of the other side. Admittedly, in the present case, the Trial Court proceeded only on the ground that there is no averment with regard to the impersonation made by the defendant in the original plaint. It is specifically contended that the defendant in collusion with the witnesses has created the document by playing fraud on the plaintiff and the Trial Court rejected the application mainly on the ground that the plaintiff is not diligent in filing the application for amendment. That is not a ground to reject the application for amendment. The application for amendment of the plaint is mere elaboration of the averments made in the plaint, which is imperative, proper and effective adjudication of the case. When the application filed is a bona fide, refusing the amendment would lead to injustice and lead to multiple litigations. The amendment sought will not constitutionally or fundamentally change the nature, character of the case and it will not introduce a new cause of action or prejudice the case of the defendant. Ultimately, it is for the plaintiff to prove the case based on oral and documentary evidence. Therefore, the learned Judge was not justified in rejecting the application.
15. For the reasons stated above, W.P.No.49120/2017 is allowed. The impugned order dated 11.9.2017, only insofar as it relates order passed on I.A.No.10 filed under Order 6 Rule 17 of the Code of Civil Procedure, is quashed. I.A.No.10 filed by the plaintiff is allowed with cost of `6,000/- (Rupees six thousand only), payable by the plaintiff to the defendant on the next date of hearing. In view of allowing the amendment, it is open for the defendant to file additional written statement if any.
16. Since the suit is of the year 2012 and we are in December 2017, the Trial Court is directed to expedite the suit itself, subject to co-operation of both the parties.
Sd/- JUDGE AHB