IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15th DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.54217 OF 2017(GM-CPC) BETWEEN:
SRI.M.MAHESH KUMAR S/O.LATE MUTHAPPA.V AGED ABOUT 37 YEARS BYALAKERE VILLAGE, HESSARGHATTA HOBBLI BANGALORE NORTH TALUK, SHIVAKOTE BANGALORE – 560 089.
PRESENTLY RESIDING & SERVING AT SPR, 15326717 K.15 COY 3 PLN.201, ENGINEERING REGIMENT C/O.APO, INDIAN MILITARY JODHPUR, RAJASTHAN STATE (EARLIER) NOW AT AHMEDABAD GUJARAT STATE.
(BY SRI. MADHUSUDHAN, ADVOCATE FOR SRI.VISWANATHA SETTY.V., ADV.,) AND:
SRI.V.MUTHAPPA S/O.LATE ERAIAH SINCE DEAD REPRESENTED BY LR’s ... PETITIONER 1. SMT.JAYAMMA W/O.LATE MUTHAPPA AGED 57 YEARS 2. SRI.M.RAMESH KUMAR S/O.LATE V.MUTHAPPA AGED 39 YEARS ALL ARE RESIDENTS ARE:
BYALAKERE VILLAGE HESSARGHATTA HOBLI BANGALORE NORTH TALUK BANGALORE DISTRICT.
3. SRI.J.CHANDANMAL S/O.LATE JAWAHARAMAL AGED 67 YEARS 4. SRI.J.VIRDI CHAND S/O.LATE JAWAHARAMAL AGED 62 YEARS DEFENDANTS 3 AND 4 ARE RESIDING AT NO.14, SINDARANAGAR, GOKUL BANGALORE – 560 054.
5. SMT.MUNJULA DEVI B.M. D/O.SHRI V.MUTHAPPA W/O.SHRI.RAJESH AGED 37 YEARS R/A.NO.206, 6TH MAIN ROAD AVANUR EXTENSION HESARAGHATTA MAIN ROAD BANGALORE – 560 079.
... RESPONDENTS (BY SRI.B.M.BEERAPPA., ADV., FOR C/R4, V/O.DTD.15.12.2017 NOTICE ON R1 TO R3 AND R5 ARE D/W.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.21.08.2017 VIDE ANNEX-F PASSED BY THE TRIAL COURT IN O.S.NO.2547/2006 BEFORE THE I ADDL. SENIOR CIVIL JUDGE AT BANGALORE RURAL DISTRICT, BANGALORE ON THE I.A.NO.16, FILED BY THE PETITIONER UNDER ORDER 6 RULE 17 R/W.SEC.151 OF CPC SEEKING PERMISSION TO AMEND THE PLAINT, AMENDMENT OF PRAYER IN THE ABOVE CASE.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
O R D E R The plaintiff filed the present writ petition against the order dated 21.08.2017 on I.A.No.XVI in O.S.No.2547/2006 dismissing the application filed under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure, 1908.
2. The present petitioner who was the plaintiff before the trial Court has filed the suit for partition and separate possession of his 1/3rd share in the suit schedule properties and to grant mesne profits. There was no partition in the joint family, defendant Nos.4 and 5 have purchased the suit properties from defendant Nos.1 to 3 prior to filing of the suit.
3. The defendant Nos.1 to 3 in support of their case, have not filed the written statement.
4. The defendant Nos.4 and 5 filed the written statement and denied the plaint averments and contended that the suit filed in collusion with defendant Nos.1 to 3 and they are the bonafide purchasers. The suit filed for partition is not maintainable and sought for dismissal of the suit.
5. After completion of evidence on both the sides, when the matter was posted for arguments, at that stage, the plaintiff filed the amendment application to amend paragraph No.9(a), 9(b) as well as prayer column to the effect that the plaintiff was a minor in year 1998. The defendant Nos.1 to 3 sold the land bearing Sy.No.68/1, measuring 1 acre in favour of 4th defendant under the registered sale deed dated 18.07.1998 and remaining extent of 22 guntas of land was available therein and there was no partition in the said property. The sale deed executed by defendant Nos.1 to 3 pertains to 1 acre of land in favour of defendant No.4 through the registered sale deed dated 18.07.1998 which is item No.1 of the suit schedule property is also not binding on the plaintiff to the extent of his 1/3rd legitimate share over the same. It is further submitted that the defendant Nos.1 to 3 colluding with each other have sold the land bearing Sy.No.68/1 measuring 22 guntas in favour of defendant No.5 through a registered sale deed dated 25.03.2004 in respect of item No.2 of the suit schedule property. The plaintiff was not a party to the said sale transaction. Therefore, the said sale is not binding on the plaintiff’s legitimate 1/3rd share. There was no legal necessity for the defendant Nos.1 to 3 to sell Item Nos.1 and 2 of the suit schedule properties in favour of defendant Nos.4 and 5 and therefore sought to declare that the sale deed dated 18.07.1998 and 25.03.2004 executed by the defendant Nos.1 to 3 in favour of defendant Nos.4 and 5 are not binding on the plaintiff to the extent of his legitimate share reiterating the averments made in the plaint.
6. The said application was opposed by defendant Nos.4 and 5 contending that the very application filed by the plaintiff was not only a belated one but was clearly an afterthought for an obvious purpose to avert inevitable consequences. It was further contended that the application filed only with an intention to drag on the proceedings and therefore it is liable to be dismissed. Therefore, they sought for dismissal of the application.
7. The trial Court considering the application and objections by the impugned order dated 21.08.2017 dismissed the application. Hence, the present writ petition is filed.
8. I have heard the learned counsel for the parties to the lis.
9. Sri.Madhusudhan, learned counsel for the petitioner appearing on behalf of Sri.Viswanatha Setty, learned counsel contended that the impugned order passed by the trial Court dismissing the application for amendment is erroneous and is contrary to the material on record. He further contended that since the suit is filed for partition and alienation made by defendant Nos.1 to 3 in favour of defendant Nos.4 and 5 in respect of Item Nos.1 and 2 are not binding on the plaintiff’s share. Therefore, the trial Court ought to have allowed the application. He further contended that the trial Court dismissed the application mainly on the ground that the application was filed at a belated stage and the same is erroneous. Since the amendment sought is only for clarification, it will not in any way prejudice the case of the defendants to decide the case on merits. Therefore, he sought to quash the impugned order.
10. Per contra, Sri.B.M.Beerappa, learned counsel for respondent No.4 sought to justify the impugned order and contended that the very suit filed for partition is not maintainable. After completion of evidence on both the sides, when the matter was posted for arguments, at that stage, the plaintiff filed the amendment application. The application filed by the plaintiff for amendment was not only a belated one, but was clearly an afterthought for an obvious purpose to avert inevitable consequences. It was further contended that the application is filed only with an intention to drag on the proceedings and therefore sought for dismissal of the application.
11. Having heard the learned counsel for the parties, it is undisputed fact that the plaintiff filed the suit for partition contending that the suit schedule properties are joint family properties of the plaintiff and defendant Nos.1 to 3. There was no partition in the joint family. It is the case of defendant Nos.4 and 5 that the present suit filed by the plaintiff in collusion with defendant Nos.1 to 3 is not maintainable. He also contended that the application for amendment was filed at a belated stage, when the matter was posted for arguments, which is rightly dismissed by the trial Court. The fact remains that the suit filed for partition and separate possession of the suit schedule properties and it is for the plaintiff to prove that the suit schedule properties are joint family properties of the plaintiff and defendant Nos.1 to 3 and alienation is made by defendant Nos.1 to 3 in favour of defendant Nos.4 and 5 which is not binding on the plaintiff’s legitimate share based on the oral and documentary evidence on record. The defendant Nos.4 and 5 have not disputed the fact that they have purchased from defendant Nos.1 to 3 under the registered sale deed. Whether they are bonafide purchasers and alienation made by defendant Nos.1 to 3 in favour of them is binding on the plaintiff has to be looked into by the trial Court. The amendment sought is only clarificatory in nature and how the alienation made by the defendant Nos.1 to 3 in favour of defendant Nos.4 and 5 in respect of Item Nos.1 and 2 is not binding on the plaintiff’s legitimate share.
Ultimately, it is for the plaintiff to prove his case based on the oral and documentary evidence as stated supra.
12. Mere allowing the application for amendment after completion of evidence does not amount to decreeing the suit by granting the relief. It is well settled that the amendment application can be allowed at any stage of proceedings, unless the amendment would cause prejudice to the case of the other side. Of course, there was a delay on the part of the plaintiff to file the application when the matter was posted for arguments. Therefore, present amendment sought is imperative for proper and effective adjudication of the case. Refusing such amendment would in fact lead to injustice and multiplicity of litigation. The proposed amendment constitutionally or fundamentally will not change the nature of the case. The trial Court ought to have allowed the application imposing cost on the plaintiff for filing the application at a belated stage. The same has not been done. The trial Court dismissed the application on the ground that the plaintiff could not have pleaded the facts sought to be introduced at the earliest opportunity i.e., before commencement of trial. The proposed amendment is not at all required for the purpose of determining the real question in controversy. Hence, the trial Court dismissed the application on the ground that the application is filed at a belated stage. Mere allowing of the amendment will not amount to altering the nature of the suit and in no way prejudice the case of the defendants.
13. For the reasons stated above, writ petition is allowed. The impugned order passed by the trial Court on I.A.No.XVI under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure, 1908 made in O.S.No.2547/2006 is hereby quashed. I.A.No.XVI filed by the plaintiff for amendment is allowed, subject to payment of cost of Rs.15,000/- payable by the plaintiff to defendant No.4 on the next date of hearing before the trial Court. It is needless to observe that defendant Nos.4 and 5 can file additional written statement if any, immediately.
14. Taking into consideration the suit is of the year 2006 and we are in 2017, the trial Court is directed to dispose of the suit within a period of six months from the date of receipt of a copy of this order.
Sd/- JUDGE VMB