IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JUNE, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No. 25892/2017(GM-CPC) BETWEEN:
SRI H. A. SRINIVAS, S/O LATE M. C. ANJANAPPA, AGED ABOUT 36 YEARS, R/O HAGADUR VILLAGE, IMMADIHALLI POST, K. R. PURA HOBLI, BENGALURU EAST TALUK-560036. ... PETITIONER (BY SRI M. S. NAGARAJA, ADVOCATE) AND:
SRI H. Y. KRISHNAPPA, S/O LATE VENKATAPPA, 1. SMT. THIMMAKKA, W/O LATE H. Y. KRISHNAPPA, AGED ABOUT 75 YEARS, 2. SRI SURESH, S/O LATE H. Y. KRISHNAPPA, AGED ABOUT 48 YEARS, 3. SRI MUNIRAJU, S/O LATE H. Y. KRISHNAPPA, AGED ABOUT 45 YEARS 4. SRI SUBRAMANYA, S/O LATE H. Y. KRISHNAPPA, AGED ABOUT 42 YEARS, 5. SRI CHANDRU, S/O LATE H. Y. KRISHNAPPA, AGED ABOUT 35 YEARS 6. SMT. NANJAMMA, D/O LATE H. Y. KRISHNAPPA, AGED ABOUT 32 YEARS 7. SMT. BABY, D/O LATE H. Y. KRISHNAPPA, AGED ABOUT 30 YEARS, 8. SMT. MUNIRATHNA, D/O LATE H. Y. KRISHNAPPA, AGED ABOUT 28 YEARS, 9. SMT. NEELAMMA, D/O LATE H. Y. KRISHNAPPA, AGED ABOUT 26 YEARS, 10. SRI H. K. RAMESH, S/O LATE H. Y. KRISHNAPPA, AGED ABOUT 56 YEARS, THE RESPONDENTS 1 TO 10 ARE RESIDENTS OF DANAMANDE VINASYAKA NAGARA, HAGADURU VILLAGE, WHITEFIELD POST, BENGALURU EAST TALUK-560066. ... RESPONDENTS (BY SRI SUDHIR B. S., ADVOCATE FOR C/R10) … THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU ON I.A. FILED UNDER ORDER VI RULE 17 READ WITH SECTION 151 OF CPC IN O.S.NO.864/2004 DATED 29.5.2017 VIDE ANNEXURE-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff has filed the present writ petition against the order dated 29.5.2017 made in O.S. No. 864/2004 on I.A. filed by the plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, dismissing the application for amendment.
2. The plaintiff had filed a suit for specific performance against the defendants to enforce the agreement dated 18.4.1997 said to have been executed by the original defendant for a sale consideration of Rs.90,000/- in respect of the suit schedule property. In spite of the repeated request made by the plaintiff, original defendant (defendant No.1) had not executed the registered sale deed. Therefore, the plaintiff had issued legal notice and has subsequently filed a suit for the relief sought for.
3. The original defendant filed the written statement denying the entire plaint averments and contended that he never executed the agreement. Therefore, he sought for dismissal of the suit.
4. When the matter was posted for cross- examination of defendant No.2, the present application was filed by the plaintiff under Order VI Rule 17 r/w Section 151 of the Code of Civil Procedure narrating the facts that subsequent to the legal notice dated 23.6.2004, defendant No.1 executed a registered Gift Deed, dated 25.6.2004 in favour of defendant No.2 and the said fact was not disclosed by defendant No.1 either in his reply notice or written statement, but had been disclosed only at the time of adducing his evidence before this Court. Therefore, he filed an application for narration of facts to add para No.7(a) after para 7 and para (b)(i) after prayer column para (b) declaring that the Gift Deed, dated 25.6.2004 executed by defendant No.1 in favour of defendant No.2 is not binding on the plaintiff. The said application was resisted by defendant Nos. 1(a) to 1(i) and defendant No.2 contending that their father never executed the agreement in favour of the plaintiff and they have denied the fact that the 1st defendant executed Gift Deed in favour of defendant No.2 on 25.6.2004 and sought for dismissal of the application.
5. The trial Court considering the application and objections, by the impugned order dated 29th May, 2017 rejected the application. Hence, the present writ petition is filed.
6. I have heard the learned Counsel for the parties to the lis and perused the entire material on record carefully.
7. Sri M.S. Nagaraja, learned Counsel for the petitioner vehemently contended that the impugned order passed by the trial Court rejecting the amendment solely on the ground of maintainability after commencement of trial is highly unsustainable and the same is liable to be set aside. He further contended that the amendment sought is only narration of facts and that he came to know the subsequent development only at the time of evidence of the defendant that defendant No.1 had executed a Gift Deed in favour of 2nd defendant and in view of the judgement of the Hon’ble Supreme Court in the case of Chakreshwari Constructions Pvt. Ltd. –vs- Manohar Lal reported in 2017(5) SCC 212 amendment of plaint can be allowed only when mere narration of facts by amendment of pleadings in the plaint will not in any way prejudice the case of the defendants nor will not change the nature of the suit. Therefore, he sought to set aside the impugned order passed by the trial Court by allowing the writ petition.
8. Per contra, Sri Sudhir B.S., learned Counsel for the caveator/respondent No.10 -defendant No.2 sought to justify the impugned order passed by the trial Court contending that the application filed by the plaintiff for amendment of plaint is after commencement of the trial and the same is not permissible in view of the provisions of Order 6 Rule 17 of the Code of Civil Procedure Amendment Act. Therefore, he sought to dismiss the writ petition.
9. Having heard the learned Counsel for the parties to the lis, it is clear that it is not in dispute that the plaintiff filed original suit for specific performance against the original defendant to enforce the agreement dated 18.4.1997. The defendants have denied the very execution of agreement and when the matter was posted for cross-examination of D.W.2 and during the cross- examination of D.W.2, present application is filed mainly on the ground that he came to know for the first time when D.W.2 in his cross-examination had deposed that defendant No.1 had executed a registered Gift Deed in his favour on 25.6.2004. It is also not in dispute that the said fact was not averred by the original defendant either in the written statement or in the reply notice. Therefore, the plaintiff was prompted to file an application for amendment. The amendment sought is only narration of facts with regard to Gift Deed and that the proposed amendment is bonafide, relevant and necessary for deciding the rights of the parties. Mere allowing the application for amendment will not prejudice the case of the defendants, since they have taken the specific defence in the written statement. It is ultimate for the plaintiff to prove that the original defendant executed the agreement in his favour.
10. So far as the contention of the learned Counsel for the respondents/defendants that the amendment cannot be allowed after commencement of the trial, the same cannot be accepted since it is now well settled that in any stage of the proceedings, an amendment application can be filed and the same can be allowed, if the same does not alter the nature of the suit and in any way seriously prejudice the rights of the parties in view of the dictum of the Hon’ble Supreme Court in the case of Chakreshwari Constructions Pvt. Ltd., -vs- Manohar Lal reported in 2017(5) SCC 212 wherein at para 3, it has been held as under:
“3. The short question, which arises for consideration in this appeal, is whether the Rent Tribunal and the High Court were justified in rejecting the two applications filed by the appellant in their pending main eviction petition viz. one filed under Order 6 Rule 17 of the Code read with Section 21 of the Act (Annexure P-6) seeking to amend their eviction petition and other field under Order 7 Rule 14(3) of the Code read with Section 21 of the Act seeking permission to file some additional documents in support of the amendment sought?”
11. Admittedly in the present case, mere allowing the present application will not in any way prejudice the case of the defendants and ultimately, the plaintiff has to prove his case based on the agreement for specific performance and the trial Court has to decide the suit for specific performance based on the oral and documentary evidence to be adduced and produced by the respective parties.
12. For the reasons stated above, the trial Court is not justified in passing the impugned order. The plaintiff has made out a case for interference and hence the same is liable to be quashed.
13. Accordingly, writ petition is allowed. The impugned order dated 29.5.2017 made in O.S.No.864/2004 by the II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru is quashed and the application filed under Order VI Rule 17 read with Section 151 of Code of Civil Procedure is allowed.
All the contentions raised by both the parties are left open.
Sd/- Judge Nsu/-