IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.18875/2014(GM-CPC) BETWEEN:
1. SRI KRISHNAIAH, SINCE DECEASED BY HIS LRS, SRI RAMANUJAIAH, S/O LATE KRISHNAIAH, AGED ABOUT 48 YEARS, R/AT TURUGANURU VILLAGE, YADIYOORU HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT.
2. SRI VENKATESHAIAH, S/O VENKATARAMANAIAH MAJOR, R/AT MADIKEKANNASANDRA, TURUGANURU VILLAGE, YADIYOORU HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT.
... PETITIONERS (BY SRI T. P. RAJENDRA KUMAR SUNGAY, ADVOCATE) AND:
1. SRI RAGHAVAIAH, S/O LATE VENKATARAMANAIAH, MAJOR, R/AT HOUSE NO. 187, TEMPLE STREET, YADIYOORU, KUNIGAL TALUK, TUMKUR DISTRICT.
2. SRI PUTTASWAMY @ LAKSHMIPATHI, S/O LATE VENKATARAMANAIAH, MAJOR, R/AT NO. 104/A, 34, 4TH CROSS, LAKSHMI LAYOUT, MUNIKOLALU, MARATHAHALLI, BANGALORE.
3. SRI RAJASHEKAR, S/O LATE VENKATARAMANAIAH MAJOR, R/AT BAGENAHALLI POST, KOTHAGERE HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT.
4. SRI JAYARAMAIAH, S/O LATE VENKATARAMAIAH, MAJOR, R/O TURUGANURU VILLAGE, YADIYOORU HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT.
5. SRI VENKATESHAIAH, S/O LATE SRINIVASAIAH, MAJOR, R/O TURUGANURU VILLAGE, YADIYOORU HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT.
6. SRI SUNDAREGOWDA, S/O LATE BORAIAH, MAJOR, R/AT NO. 54, “ANUGRAHA”
3RD CROSS, GAVIPURAM EXTENSION, BANGALORE-560019.
... RESPONDENTS (BY SRI P.B. AJIT, ADVOCATE FOR R1 TO R4 AND R6; VIDE ORDER DATED 23.03.2016 PETITION AGAINST R5 IS ABATED) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.1.2014 PASSED IN O.S. NO.3/1996 BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, KUNIGAL ON I.A. XXV VIDE ANNEXURE-E AND ALLOW THE SAID I.A. FILED BY THE PETITIONERS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The plaintiff Nos.1(a) & 3 filed the present writ petition against the order dated 18.1.2014 on I.A. No.25 made in O.S. No.3/1996 rejecting the application filed by the plaintiffs under Order 6 Rule 17 r/w Section 151 of Code of Civil Procedure.
2. The plaintiffs filed O.S. No.3/1996 for declaration that they are the owners of B,C and D schedule properties, morefully described in the schedule to the plaint by holding that the sale deed is not binding on the said properties of the plaintiffs and for restraining the defendants from interfering with the plaintiffs’ peaceful possession and enjoyment of the B,C and D schedule properties. It is the case of the plaintiffs that they are the owners of the suit schedule properties and are in possession and enjoyment of the same and the defendants have no manner of right, title and interest in respect of the suit schedule properties. Therefore filed the suit for the reliefs sought for.
3. The defendants filed the written statement denying the plaint averments and contended that the land in question i.e., Sy.No.54 measuring 9 acres 26 guntas and Sy.No.20 measuring 3 acres 4 guntas situated at Madike Kannasandra village, Kothagere, Kunigal taluk was an inam land and they are in possession and enjoyment of the suit schedule properties and the plaintiffs have no manner of right, title and interest in respect of the suit schedule properties and therefore suit filed by the plaintiffs is not maintainable and sought for dismissal of the suit.
4. After completion of evidence, when the matter was posted for arguments, at that stage, the petitioners – plaintiff Nos.1(a) and 3 filed an application under order 6 Rule 17 r/w Section 151 of Code of Civil Procedure seeking permission to amend the prayer column in the plaint by mentioning the dates of sale deeds. It is the case of the plaintiffs that they filed O.S. No.3/1996 for the relief of declaration and Permanent Injunction. Plaintiff No.1(a) has been examined as PW.1 and defendant Nos.1 and 6 were also examined in the proceedings. Then the plaintiffs came to know that the defendant Nos.1 to 5 have created the forged sale deeds dated 7.10.1995 and 5.7.1997 in the name of defendant No.6 without their knowledge and without any consideration in respect of the suit schedule properties. After knowing the alleged sale deed dated 7.10.1995, the plaintiffs filed the suit for declaration that the plaintiffs are the owners of B,C and D schedule properties by holding that the alleged sale deed is not binding on B,C and D schedule properties. Insofar as the sale deed dated 5.7.1997 is concerned, the defendants have created said sale deed after filing of the suit. The said document is hit by law of lis pendens. Therefore the plaintiffs sought for amendment of the plaint prayer column.
5. The defendants filed objections to the said application contending that the very application for amendment is highly belated. The application is filed after commencement of the evidence, which is impermissible and the same is filed only to protract the proceedings and therefore sought for dismissal of the suit.
6. The trial Court considering the application and the objections by the impugned order dated 18.1.2014 rejected the application for amendment. Hence the present writ petition.
7. I have heard the learned counsel for the parties to the lis.
8. Sri T.P. Rajendra Kumar Sungay, learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the application filed by the plaintiffs to amend the plaint prayer 1(a) by incorporating the dates of sale deeds will no way prejudice the case of the defendants. He further contended that in the plaint averments when it is already pleaded with regard to the sale deed dated 7.10.1995, absolutely there is no impediment for the trial Court to include the date of the said sale deed in the prayer column and insofar as the 2nd sale deed dated 5.7.1997 is concerned, it is made subsequent to filing of the suit. Therefore he sought to allow the application for amendment. The trial court ought to have allowed the application. The same has not been done. Therefore he sought to quash the impugned order passed by the trial Court and allow the application for amendment.
9. Per contra, Sri P.B. Ajit, learned counsel for respondent Nos.1 to 4 & 6 sought to justify the impugned order and contended that though there is a pleading regarding the sale deed dated 7.10.1995 in the plaint, absolutely there is no pleading in respect of the subsequent sale deed dated 5.7.1997. Therefore the trial Court is justified in rejecting the application. He would further contend that the application for amendment filed when the matter is posted for arguments after commencement of the trial which is impermissible under the provisions of Order 6 Rule 17 Code of Civil Procedure. Therefore he sought to dismiss the writ petition.
10. Having heard the learned counsel for the parties, it is an undisputed fact that the plaintiffs filed the suit for declaration and Permanent Injunction in respect of the suit schedule properties morefully described in the schedule to the plaint. In the prayer column of the plaint, the plaintiffs sought for declaration that they are the owners of B,C and D schedule properties by holding that the sale deed is not binding on B,C and D schedule properties, but in the body of the plaint it is specifically stated in paragraph-12 with regard to the sale deed dated 7.10.1995. While seeking prayer, date of sale deed is omitted by mistake. It is also not in dispute that the plaintiffs specifically stated in the application for amendment that subsequent to filing of the suit, the defendants have created forged sale deed dated 5.7.1997 and same is hit by the provisions of law of lis pendens. Therefore the plaintiffs want to incorporate the dates of sale deeds dated 7.10.1995 and 5.7.1997 in the prayer column by way of amendment. Mere allowing the application for amendment does not amount to decreeing the suit and granting the relief in favour of the plaintiffs. It is for the plaintiffs to establish and prove that they are the owners of the suit schedule properties based on the oral and documentary evidence on record.
11. The trial Court considering the application and the objections has stated that not mentioning of the sale deed dated 7.10.1995 in the prayer column of the plaint no way prejudice the case of the plaintiffs. When plaintiffs are seeking mentioning of the dates of sale deeds, the trial Court ought to have stated that by mentioning the dates in the prayer column, it will not prejudice the case of the defendants and not the plaintiffs. The learned Judge further held with regard to the sale deed dated 5.7.1997 that in the entire body of the plaint, the plaintiffs have not whispered anything about the transaction of the sale deed dated 5.7.1997. The same cannot be accepted for the simple reason that admittedly the suit was filed in the year 1996 and sale deed dated 5.7.1997 came into existence after the suit filed. That is the specific pleading in the application for amendment. The same has not been considered by the trial Court.
12. Though Sri Ajith, learned counsel for the defendants contended that the application for amendment of the plaint was filed at a belated stage when the matter is posted for arguments, it is well settled that application for amendment can be filed at any stage if it does not prejudice the case of the defendants and if it does not amount to multiplicity of the proceedings. Mere incorporation of the date of sale deed i.e., 7.10.1995 in the prayer column when it is already pleaded in paragraph 12 of the plaint will no way prejudice the case of the defendants and will not alter the nature of the suit. Insofar as the sale deed dated 5.7.1997 is concerned, it is made subsequent to filing of the suit. It is for the plaintiffs to prove their case for declaration and Permanent Injunction based on the oral and documentary evidence on record. The present application filed for amendment of prayer column to include the dates of sale deeds based on the same set of facts deserves to be allowed since same is required for proper adjudication of the case. Refusing the prayer sought in the application for amendment will lead to injustice and multiplicity of proceedings. The proposed amendment will not change the nature and character of the suit. Therefore the trial Court ought to have allowed the application for amendment of the plaint by imposing some costs for filing the application at the belated stage eventhough there is no bar to file at any stage of the proceedings.
13. In view of the aforesaid reasons, the writ petition is allowed. The impugned order passed by the trial Court dated 18.1.2014 on I.A. No.25 made in O.S. No.3/1996 is quashed. I.A. No.25 filed by the plaintiffs under Order 6 Rule 17 r/w Section 151 of Code of Civil Procedure is allowed subject to payment of costs of Rs.5,000/- (Rupees five thousand only) payable by the plaintiff Nos.1(a) and 3 to the defendants on the hearing date immediately after receipt of certified copy of this order. It is always open for the defendants to file additional written statement, if any.
The suit is of the year 1996 and nearly 21 years have elapsed and the suit is already posted for arguments and hence it is appropriate to direct the trial Court to dispose of the suit itself expeditiously. Therefore, the trial Court is directed to dispose of the suit itself within three months from the date of receipt of copy of the order subject to cooperation from both the parties and their counsel.
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JUDGE Gss/-