IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION Nos.12591-12592/2015 (GM-CPC) Between:
Sri Chandrashekar, S/o. late Ashwathnarayan, Aged about 46 years, R/at: Anneshwara Vilage, Kasaba Hobli, Devanahalli Taluk – 562 110, Bengaluru Rural District.
. … Petitioner (By Sri G.A. Srikante Gowda, Adv.) And:
H.K. Kejariwal Foundation & Registered Charitable Trust, Having its registered office at 2nd Floor, Industry House, No.45, Race Course Road, Bengaluru – 560 001.
Rep. by its Chairman & Founder Trustee H.K. Kejariwal.
... Respondent (By Sri Chandan, Adv.) *** These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to call for records and process of the case, set aside the order dated 11.07.2013 passed by the Senior Civil Judge and JMFC in O.S.No.477/2009 at Devanahalli on I.A.No.VII and XI, Annexure-G and order dated 02.02.2015 vide Annexure-L.
These Writ Petitions coming on for Orders this day, the court made the following:
ORDER These two writ petitions are filed by the plaintiff against the impugned orders dated 11.07.2013 and 02.02.2015 passed on I.A.No.VII and XI made in O.S.No.477/2009 on the file of the Senior Civil Judge and JMFC at Devanahalli rejecting the two applications filed by plaintiff under Order 6 Rule 17 R/w Section 151 of Code of Civil Procedure and under Order 3 Rule 2 R/w Section 151 of Code of Civil Procedure for amendment to delete the boundary of “Kere” on western boundary of the plaint schedule and add “Defendant’s Property” in its place and second application to amend the plaint schedule East by substituting ‘land Sy.No.125’ in place of land Sy.No.143/1 and west by substituting land Sy.No.143/1’ in place of ‘kere’.
2. The plaintiff filed suit for declaration of title, mandatory injunction and permanent injunction in respect of suit schedule property morefully described in the schedule to the plaint. i.e., property bearing Sy. No.143/2 measuring 1 acre 2 guntas of Bettenahalli village and contended that the plaintiff is the owner in possession and enjoyment of the suit schedule property and the same was acquired under registered sale deed dated 21.02.2008 from his previous owner. The revenue entries also entered in his name. He further contended that the defendant is the owner in possession of Sy.No.143/1. Both survey nos.143/1 and 143/2 are adjacent lands. The defendant encroached the south-west corner side of the suit schedule property and put up construction on the southern side property. The plaintiff filed an application before the Taluk Surveyor to fix the boundary. The Taluk Surveyor issued notice to both plaintiff and defendant’s vendor, because at the time of surveyors spot inspection, RTC stands in the name of defendant’s vendor by name Ramakrishna and when he came to the spot on 16.02.2009 to measure the suit schedule property, then only the plaintiff came to know the illegal construction of the defendant in the southern side of suit schedule property. Therefore, he filed suit for the relief sought for.
3. Defendant filed written statement denying the plaint averments and contended that he is the owner of Sy.No.143/1 measuring 6 acres 32 guntas. He would further contend that the boundaries mentioned in the schedule as well as in the sale deed are incorrect. He further contended that the plaintiff in fact earlier filed suit for mandatory injunction against the vendor in O.S.No.151/2009 which came to be withdrawn and sought for dismissal of the suit.
When the matter was posted for cross-examination of D.W.-1, the plaintiff also filed I.A. under Order 39 Rules 1 and 2 R/w Section 151 of Code of Civil Procedure for temporary injunction restraining the defendant from putting up any construction in the suit schedule property. After contest, the trial Court granted temporary injunction on 04.06.2010.
4. Aggrieved by the said order, the defendant filed MFA No.7009/2010 before this Court. This Court considering the material on record by the order dated 20.04.2011 appointed the ADLR, Bengaluru Rural District to measure the land on which the school building which is stated to be constructed in Sy.No.143/1 and also by encroaching into the adjacent land in Sy.No.143/2 and to ascertain whether there is any encroachment in Sy.No.143/2 while putting up construction of the said school building on Sy.No.143/1. If so, what is the extent of encroachment in Sy.No.143/2 and also to state what is the extent of vacant land available in Sy.No.143/1 belonging to appellant foundation. The entire extent in Sy.Nos.143/1 and 143/2 is required to be measured and a report in that behalf should be submitted to this Court. The said order reached its finality.
5. Thereafter, the ADLR submitted the report as per Annexure-D before this Court on 06.09.2011. According to the said report, the defendant has encroached 6 ½ guntas and 15 ½ guntas in total 22 guntas of land and also produced sketch which clearly depicts the encroachment portion. Ultimately, this Court by the order dated 20.06.2012 while disposing MFA No.7009/2010 has directed the trial Court to dispose of the appeal expeditiously and considering the submission made by learned counsel for the respondent with liberty file an application before the trial Court for clubbing O.S.No.484/2009.
6. When the matter was posted for cross- examination, at that stage, the plaintiff filed application for amendment under Order VI Rule 17 R/w Section 151 of Code of Civil Procedure to amend the plaint schedule to delete the boundary of ‘Kere’ on the west of the plaint schedule and add ‘defendant’s property’ in its place contending that at the time of filing the suit, by oversight or by mistake the boundary to the plaint schedule on the western side has been mentioned as ‘kere’ instead of ‘defendant’s property. When the said fact came to know the knowledge of the plaintiff, the plaintiff had approached his vendor to execute rectification deed in respect of the mistake done in the said sale deed dated 21.02.2008. The said fact came to his knowledge at the time of evidence. The application was resisted by the defendant by filing objections. The trial Court considering the application and objections, by the order dated 11.07.2013 dismissed the I.A. No.VII filed under Order 6 Rule 17 R/w Section 151 of CPC. Considering the report and sketch submitted by the Surveyor that the defendant has encroached the property of the plaintiff, interim order of injunction was granted restraining the defendant from putting up further construction.
7. It is the specific case of the plaintiff that he has obtained the rectification deed on 23.06.2014 (rectification of boundaries) of Sy.No.143/2 and thereafter, second application came to be filed on 11.07.2014 to amend the plaint schedule by substituting east by land Sy.No.125 in the place of land Sy.No.143/1 and west by land Sy.No.143/1 in the place of kere. The said application was also resisted by the defendant by filing objections. The trial Court considering the application and objections by the order dated 2.02.2015 dismissed the I.A.No.XI filed under Rule 17 R/w Section 151 of CPC. Hence the present writ petitions are filed.
8. I have heard the learned counsel for the parties to lis.
9. Sri G.A. Srikanth Gouda, learned counsel for the plaintiff/petitioner contended that the impugned orders passed by the trial Court rejecting the applications filed for amendment are erroneous and contrary to material on record. He further contended that the order passed by this Court appointing the ADLR to measure the property of the plaintiff and defendant dated 24.04.2011 has reached its finality. The report and the sketch produced by the ADLR clearly depicts that the defendant encroached the property of the plaintiff to an extent of 22 guntas. Therefore, the plaintiff filed an application for amendment. The trial Court at the first instance rejected the application for amendment only on the ground that it amounts to withdrawal of admission. Therefore, the plaintiff approached his vendor for rectification of the sale deed. After obtaining rectification deed, the present application was filed for amendment of plaint schedule.
10. He further contended that the two applications were filed separately by the plaintiff for amendment of the schedule. Mere allowing the boundary as the eastern or western side, no prejudice will cause to the defendant. Ultimately, it is for the plaintiff who came before the Court has to prove the case for declaration of title, permanent injunction and mandatory injunction based on oral and documentary evidence on record. Further contended that the order passed by the trial Court on the second application dated 02.02.2015 does not amount to res-judicata, as the earlier application filed and the order passed thereon has been challenged. The learned trial Judge has not considered the fact that mere allowing the boundary of the schedule in terms of the sale deed and how it affects the case of the defendant has not been considered. Therefore, he sought to allow the writ petitions.
11. In support of his contentions, learned counsel for the petitioner has relied upon the following Judgments of the Hon’ble Supreme Court:
(i) Rameshkumar Agarwal V/s. Rajmala Exports Private Limited and Others reported in (2012) 5 SCC 337 at paragraph 20.
(ii) Ramachandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (D) and Others reported in AIR 2007 Supreme Court 2577 at paragraphs 11 and 14.
(iii) Satyadhyan Ghosal and Others Vs. Smt. Deorjin Debi and another reported in AIR 1960 Supreme Court 941 at paragraphs 7, 8, 9, 10, 13 and 21.
Therefore, sought to allow the present writ petitions.
12. Per contra Sri Chandan, learned counsel for defendant sought to justify the impugned orders of the trial Court. He quickly contended that the first application filed for amendment is nothing to withdrawal of admissions made by PW.1/plaintiff in the cross-examination. Referring to para 12 of the first order, he submits that it is well settled law that no amendment could be permitted if the proposed amendment takes away the admission made in favour of defendant. If the proposed amendment is allowed, it takes away the admission made in favour of the defendant. More so, the plaintiff was very well aware of the said mistake in the year 2003 itself, but he has not raised the amendment before commencement trial.
13. He further contended that the first order passed by the trial Court dated 11.07.2013 was not challenged when the second order was passed by the trial Court on 02.02.2015, now the writ petitions are filed challenging both orders which is only after thought and cannot be encouraged. He further contended that in view of the earlier order passed by the trial Court, second application seeking similar amendment filed is not acceptable. Therefore, the trial Court has rightly rejected the applications filed by plaintiff which amounts to res-judicata. He further contended that both the first and the second applications filed for amendment are highly belated and cannot be entertained. Hence they are liable to be rejected. He further contended that the alleged rectification sale deed obtained by the plaintiff through GPA is not permissible. Whether the said GPA is still exists or not, it is not known. Therefore he sought to dismiss the writ petitions.
14. Having heard learned counsel for the parties, it is undisputed fact that the plaintiff filed suit for declaration, mandatory injunction and permanent injunction in respect of suit schedule property in Sy.No.143/2 measuring 1 acre 2 guntas situated at Bettenahalli Village, Kundana Hobli, Devanahalli Taluk. It is the specific case of the plaintiff that the defendant encroached the south- west corner side of the suit schedule property and put up illegal construction in the south-west corner side of the suit schedule property. The defendant filed written statement denying the plaint averments and contended that he is the owner of the property No.143/1 measuring 6 acres 32 guntas. It is also not in dispute that the earlier application filed by the plaintiff for temporary injunction restraining the defendant from putting up construction was allowed by the trial Court granting temporary injunction on 04.06.2010 which was the subject matter of MFA No.7009/2010. At the instance of the defendant, this Court by the order dated 20.04.2011 appointed the ADLR as Court Commissioner to measure the property of the plaintiff and defendant and submit report. The said order passed by this Court has reached finality.
15. Based on the order of this Court, the ADLR submitted the report along with sketch as per Annexures-D and E which clearly depicts that the defendant encroached to an extent of 22 guntas. Ultimately this Court disposed of MFA on 20.06.2012 on the submission made by the parties that the appeal may be disposed of by restraining the defendant/appellant from putting up any further construction in the suit schedule property till the disposal of the suit. Admittedly the said report and sketch filed is not at all challenged by the defendant.
16. Thereafter on the basis of the report and the sketch submitted by the ADLR before this Court in MFA 7009/2010, plaintiff filed an application for amendment to delete the boundary of kere on the west of the plaint schedule and add defendants property in its place. The trial Court considering the application and objections was proceeded to dismiss the application on the ground that in para 21 of cross-examination of P.W.-1, he has elicited that the western boundary to the suit schedule property is wrong. Towards western side of suit schedule property, the defendants property is situated thereafter, kere comes. He has also admitted in his cross examination that in the year 2003, he came to know the western boundary is defendant’s property.
17. It is the specific case of the plaintiff that on the western boundary it is wrongly mentioned as kere instead of defendant’s property. In the cross examination he only stated that western boundary to the suit schedule is wrong, towards western side of suit schedule property, the defendant’s property has to be added to the schedule to the plaint that cannot be admission. It is also recorded a finding that it is settled principle of law that no amendment which takes away the admission can be allowed. Instead of mentioning kere if the defendant’s property is added on western side how it will be admission is not known. Ultimately, it is for the plaintiff to prove his case for declaration, mandatory injunction and permanent injunction based on the oral and documentary evidence on record. Mere amendment of the schedule/particular boundary with reference to the documentary evidence will no way prejudice the case of the defendant. The trial Court has erred in holding that the amendment will take away the admission of the plaintiff. It is not the case of the defendant that by way of amendment, his property will be included in the suit schedule property and it is all along the defendant’s case who is the owner of Sy.No.143/2 measuring 6 acres 32 guntas. Both Sy.Nos.143/1 and 143/2 are adjacent lands.
18. It is also not in dispute that in view of the order passed by this Court in MFA No.7009/2010 and the report and sketch submitted by the ADLR and order passed by trial Court on 11.07.2013, the plaintiff has obtained rectification deed/sale deed dated 23.06.2014 during the pendency of the suit from his vendor and filed second application to amend the schedule of the plaint by substituting land Sy.No.125 in place of land Sy.No.143/1 and land Sy.No.143/1 in place of kere based on the rectification sale deed. The trial Court considering the application and objections by the impugned order dated 02.02.2015 dismissed the said application mainly on the ground that the plaintiff sought to amend the eastern boundary instead of Sy.No.143/1 add Sy.No.125 and towards western boundary, in the place of Kere substitute as land Sy.No.143/1. The earlier application for amendment was dismissed. Subsequently, the plaintiff got rectification deed in respect of the said boundary from the vendor. Therefore, he cannot have proposed amendment before commencement of trial. Since the defendant disputed the boundary of the plaint and the earlier application filed came to be rejected on 11.07.2013 and the said order is not challenged so far. If the amendment is allowed, it takes away the admission made in favour of the defendant.
19. The learned Judge failed to notice while passing both impugned orders that the first application filed came to be filed by the plaintiff based on the order passed by this Court in MFA No.7009/2010 at the instance of the parties and on the basis of the report and sketch submitted by the ADLR. Ultimately, the order passed by this Court in MFA 7009/2010 and report submitted thereon by the ADLR has reached its finality. Unless and until the said order is challenged the trial Court cannot found fault with the plaintiff to rectify the eastern and western boundary based on the report submitted by the ADLR and based on the rectification deed. Admittedly in the present case, the defendant has not filed any counter claim in respect of Sy.No.143/2. It is the specific case of the plaintiff that the defendant encroached the plaintiff’s property. The defendant denied and contended that the plaintiff has given wrong boundary in the sale deed as well as in the schedule to the plaint.
20. It is for the parties to adjudicate the disputed facts in the trial and ultimately the plaintiff who came to Court for declaration, permanent injunction and mandatory injunction has to prove his case based on oral and documentary evidence. Mere allowing the applications will no way prejudice the case of the defendant. It is for the defendant to file additional written statement and take appropriate contentions and can cross-examine the P.W.-1. Mere amending the schedule boundary will not take away the admissions and will not prejudice the case of the defendant and not amounts to any admission in favour of the defendant as recorded by the trial Court.
21. The Hon’ble Supreme Court considering the provisions of Order 6 Rule 17 of Code of Civil Procedure in the case of Ramesh Kumar Agarwal Vs. Rajmala Exports Private Limited and Others reported in (2012) 5 SCC 337 at paragraph 13, 21 and 23 held as under:-
“13. Though the appellant herein, Defendant 1 therein, contended that the proposed amendment altered the cause of action, after perusal of the entire averments, we are of the view that it merely introduced facts/evidence in support of the contention already pleaded viz., that the entire consideration under the agreement has been paid. In the original plaint, the details of payment of consideration have not been stated and by the present amendment, the plaintiff wants to explain how the money was paid. Accordingly, there is no inconsistency in the case of the plaintiff. The claim that the present amendment being barred by limitation is also rightly rejected by the Courts below. In fact, the learned Single Judge allowed the chamber summons only to the extent of Prayers (a) and (b) subject to the clarification made in para 14 of his order.
21. It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hypertechnical approach.
Liberal approach should be the general rule, particularly in cases where the other side can be compensation with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.
23. By the present amendment, the plaintiff furnished more details about the mode of payment of consideration. Accordingly, we hold that there is no inconsistency and the amendment sought for is not barred by limitation. We fully agree with the conclusion arrived at by the learned Single Judge and the Division Bench of the High Court.”
22. The Hon’ble Supreme Court while considering the provisions of Order 6 Rule 17 of Code of Civil Procedure in the appeal for declaration of title in the case of Ramachandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (D) and Others reported in AIR 2007 SC 2577 paragraph 11 and 14 held as under:-
“11.The question, therefore, is whether the plaintiff had established his title to the suit property. The plaintiff, though somewhat belatedly, attempted to amend the plaint to make his claim more precise so as to enable the Court to adjudicate upon it more satisfactorily. We see force in the contention of leaned senior counsel for the appellant that the trial Court ought to have allowed the amendment so as to enable it to decide the dispute in a more satisfactory manner. The appellate Court, it appears to us, was also not justified in harping upon the so-called absence of the bona fides on the part of the plaintiff in approaching the Court. What was called for, was an independent appraisal of the various documents produced by the plaintiff in the light of the pleadings and the oral evidence available, to come to a conclusion whether the plaintiff had established his title or not. In that context, the appellate Court ought to have seen that the trial Court was in error in refusing the amendment of the plaint which would have enabled the Court to render a decision in a more satisfactory manner.
14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”
23. In so far as the contention of the learned counsel for the respondent that the second application filed is liable to be rejected and also findings recorded by the trial Court that the earlier application filed by the plaintiff came to be rejected is not challenged so far. Therefore, the second application is not maintainable cannot be accepted for the simple reason that the earlier order passed by the trial Court rejecting the application for amendment of western boundary dated 11.07.2013 is also subject matter of the present writ petitions and not reached finality. The present application filed which culminated into the final order on 02.02.2015 is to amend eastern and western boundary based on rectification deed. In view of the peculiar facts and circumstances of the case and in view of the order passed by this Court in M.F.A.No.7009/2010 and based on the said report submitted by the ADLR, the plaintiff was forced to file the application to amend eastern and western boundary and two applications filed are for two separate reliefs. Therefore, Section 11 of Code of Civil Procedure is not applicable to the facts and circumstance of the present case.
24. The Hon’ble Supreme Court while considering the provisions of Section 11 of Code of Civil Procedure in the case of Satyadhyan Ghosal and Others Vs. Smt.Deorjin Debi and Another reported in AIR 1960 SCC 941 at paragraph 7 and 8 held as under:-
“7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a respondent is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, when a matter – whether on a question of fact or a question of law – has been decided between two parties in one suit or proceedings and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S.11 of the Code of Civil Procedure; but even where S.11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.
8. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again?
Therefore, the contention of the defendant that the second filed is barred by res-judicata cannot be accepted.
25. It is well settled law that the amendment of the pleadings can be amended at any stage unless the amendment sought introduced altogether new case, alter the nature of the suit or prejudice the case of the other side. Admittedly, in the present case the amendment sought is only western and eastern boundary and will no way prejudice the case of the defendant. The amendment sought is necessitated by the order passed by this Court dated 20.04.2011 made in M.F.A. No.7009/2010 and on the basis of the report submitted by the ADLR and based on the rectification deed obtained by the plaintiff on 23.06.2014. Therefore, the amendment sought for will not prejudice the case of the other side.
26. My view is fortified by the Supreme Court in the case of Chakreshwari Construction (P) Ltd., Vs. Manohar Lal reported in (2017) 5 SCC 212. Paragraph 13,16 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 Vs. Narayanaswamy & Sons, 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 basis 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.”
27. In view of the aforesaid reasons, the writ petitions are hereby allowed, the impugned orders passed by the trial dated 11.07.2013 on I.A.No.VII and the order dated 02.02.2015 on I.A.No.XI in O.S.No.477/2009 on the file of the Senior Civil Judge and JMFC., Devanahalli, are hereby quashed, I.A.No.7 and 11 filed by the plaintiff for amendment of the schedule to the plaint are hereby allowed subject to cost of Rs.10,000 (Rs.5,000 each to the applications) payable by the plaintiff to the defendant on the next date of hearing before the trial Court.
28. In view of the allowing the application for amendment, the defendant is permitted to file additional written statement if any within a period of 15 days from the date of receipt of this order and the trial Court shall proceed with the suit as expeditiously as possible, taking into consideration that the suit was filed in the year 2009 and we are in 2019 subject to co-operation of both the parties.
29. Any observations made by this Court while considering the applications for amendment of the schedule shall not come in the way of either of the parties to establish their case before the trial Court based on the oral and documentary evidence to be adduced and produced by both the parties in accordance with law.
Ordered accordingly.
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Sd/- JUDGE