IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO. 12925 OF 2019 (GM-CPC) BETWEEN:
SRI M RAJENDRA, S/O LATE MUNIRATHNAM, AGED ABOUT 46 YEARS, R/AT NO.4, GROUND FLOOR, 2ND MAIN, 1ST CROSS, R R LAYOUT, VIJINAPURA, BANGALORE – 560 016. … PETITIONER (BY SRI. SHIVASHANKAR K, ADV.) AND:
SMT. P L MEYYAMMAI, W/O K PALANIAPPAN, AGED ABOUT 68 YEARS, R/AT MEYYAR ILLAM, NO.11/1, SAI BABA NAGAR, 3RD CROSS, SRIRAMAPURAM, BANGALORE – 560 021. … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE CITY CIVIL JUDGE(CCH-13) BENGALURU, DATED 12.03.2019 IN O.S.NO.1017/2013 ALLOWING THE I.A.NO.17 VIDE AT ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant No.7-petitioner filed the present writ petition against the order dated 12.03.2019 passed in I.A. No.17 made in O.S.No.1017/2013 allowing the application filed by the plaintiff under Order 6 Rule 17 Code of Civil Procedure, 1908.
2. The respondent who is the plaintiff before the trial Court filed suit for declaration of title in respect of the suit Schedule-A property and to declare the GPA and registered sale deeds as null and void and not binding on the plaintiff and also to direct the first defendant and fifth defendant to deliver vacant possession of the property mentioned in Schedule-B to the plaintiff and to pay Rs.1,16,450/- towards damages from the date of the suit and continue to pay damages, so also direct second defendant and fifth defendant to deliver vacant possession in Schedule-C and to pay Rs.84,000/- towards damages from the date of the suit and continue to pay damages and also direct third defendant and fifth defendant to deliver vacant possession of Schedule-D property and to pay Rs.63,000/- towards damages from the date of suit and continue to pay damages, etc. Based on the registered sale deeds, defendants 1 to 5 were placed ex-parte.
3. The defendant No.6 filed Written Statement, denied the averments made in the plaint and contended that he has purchased the Schedule-A property from defendant No.5 on 26.02.2013 and is in possession of the same. The defendant No.7 who has purchased the said property from defendant No.6 on 30.06.2014 has denied the plaint averments and contended that he is the bonafide purchaser and has purchased the same without knowing the pendency of the suit and hence sought for dismissal of the suit.
4. After completion of the evidence, when the matter was posted for arguments, at that stage the plaintiff filed application under Order 6 Rule 17 r/w Sec.151 of Code of Civil Procedure, 1908 to insert para 21A of the facts and prayer 6(a) to the effect that defendant No.6 has sold the property subject matter of the suit to defendant No.7 under registered Sale Deed dated 30.06.2014 and when defendant No.7 filed an application under Order 8 Rule 1A on 23.04.2018, the plaintiff came to know that defendant No.7 has evicted the tenants who were let out by the plaintiff and has illegally occupied the suit property during the pendency of the suit and the existence of interim order. Therefore he is seeking vacant possession of the property from defendant No.7 and therefore he sought to add para 6(a) of the prayer to direct defendant No.7 to deliver the vacant possession of the suit schedule properties ie., Schedule A to E to the plaintiff. The said application was resisted by the defendant No.7, present petitioner contending that the application filed after more than 5 years that too after completion of arguments cannot be entertained and is highly belated and further contended that in the application no sufficient reason has been assigned for the delay in filing the application for amendment and hence sought for dismissal of the application.
5. The trial Court considering the application and objections, by the impugned order dated 12.03.2019 allowed the application for amendment filed by the applicant, hence the present writ petition.
6. I have heard the learned counsel for the petitioner.
7. Sri K.Shivashankar, learned counsel for the petitioner contended with vehemence that the impugned order passed by the trial Court allowing the application filed at the fag end of the proceedings is not maintainable. The trial Court without considering the delay in filing the application for amendment has erroneously allowed the application. He would further contend that the application filed after commencement of trial is impermissible in view of the provisions of Order 6 Rule 17 Code of Civil Procedure, 1908 (for short “CPC”). He further contended that the plaintiff has not chosen to amend the plaint before commencement of the trial and she had kept quiet for all these years and when the matter is posted for judgment at that stage, the application filed to amend the plaint is not maintainable. The learned trial Judge ought to have rejected the application. He would further contend that if the application for amendment is allowed, the proceedings will be delayed unnecessarily and the amendment will change the nature of the case and again the matter comes back to the initial stage and process will start from the beginning by filing objections, etc. Therefore he sought for allowing the writ petition.
8. In support of his contention learned counsel for the petitioners places reliance upon the dictum of the Hon’ble Supreme court in the case of VIDYABAI AND OTHERS vs. PADMALATHA AND ANOTHER reported in (2009) AIR SC 1433 to the effect that when the trial is deemed to commence when issues are settled and case is set down for recording of evidence, the application for amendment cannot be allowed.
9. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiff filed suit for declaration of title and possession of Schedule-A property and to declare GPA and several registered sale deeds as null and void and to direct defendants Nos.1 to 5 to deliver vacant possession of ‘B’, ‘C’, ‘D’ and ‘E’ properties and for payment of damages based on the registered sale deeds. Admittedly, defendants Nos.1 to 5 were placed ex-parte and defendant No.6 filed Written Statement denying the title of the plaintiff contending that he has purchased the suit schedule properties ‘A’ to ‘E’ under registered sale deeds dated 26.02.2013 and 30.06.2014 from defendant No.6 and is in possession. During the pendency of the proceedings, that too when the injunction was operating against the defendants, on 04.12.2013 defendant No.6 alienated the suit schedule properties ‘A’ to ‘E’ in favour of defendant No.7 on 30.06.2014. Both defendant No.6 and defendant No.7 claiming ownership under registered sale deeds dated 26.02.2013 and 30.06.2014, during pendency of the suit is hit by provisions of Sec.52 of Transfer of Property Act and the present petitioner-defendant No.7 has purchased the property on 30.06.2014 when injunction was operating against his vendor. The original prayer sought by the plaintiff is for declaration of title and for certain directions to defendants Nos. 1 to 5 for delivery of vacant possession of ‘B’, ‘C’, ‘D’ and ‘E’ properties and for payment of damages.
10. It is also not in dispute that an interim order restraining the defendant No.5 from alienating the suit schedule property came to be passed on 04.02.2013 and the subsequent transactions between fifth and sixth defendants and between seventh and sixth defendants were made on 26.02.2013 and 30.06.2014 ie., subsequent to injunction order. Based on the alleged registered sale deed dated 30.06.2014, when the defendant No.7 filed an application on 23.04.2018 under Order 8 Rule 1A of CPC, only then the plaintiff came to know that the suit schedule property is purchased by defendant No.7. Therefore the present application came to be filed for amendment on 18.01.2019 contending that the plaintiff came to know about the sale deed executed by defendant No.7 only on 23.04.2018. In view of the subsequent events that too during the pendency of proceedings and existence of injunction, the plaintiff was forced to file application for amendment.
11. It is also not in dispute that earlier the relief sought for by the plaintiff for possession of suit schedule property from defendants 1 to 5 in respect of ‘B’, ‘C’, ‘D’ and ‘E’ properties and when subsequent sale deeds made in favour of defendant No.7 on 30.06.2014, the pleading at para 21A and prayer at para 6(a) to direct defendant No.7 to deliver vacant possession of suit schedule properties ie., Schedule-A to E are necessitated at the instance of defendant No.5, defendant No.6 and defendant No.7. Therefore the contention of learned counsel for the petitioner that the application filed at a belated stage when the arguments are completed, cannot be accepted.
12. The defendant No.7 purchased the suit schedule property on 30.06.2014, when injunction was operating against his vendor and he filed application on 23.04.2018 under Order 8 Rule 1A of CPC and the present application came to be filed on 18.01.2019 within eight months. Therefore the contention of the learned counsel for the petitioner that there is delay of five years in filing amendment application, cannot be accepted. It is true that in view of the amended provisions of CPC, once trial is commenced, the application for amendment cannot be allowed. In view of the subsequent decisions of Hon’ble Supreme Court under Order VI Rule 17 of CPC, it is couched in a mandatory form. The Court’s jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied. At that stage the amendment application cannot be entertained and if the same has been allowed it amounts to changing the nature of the suit or prejudice the case of the other side.
13. Admittedly, the original defendants Nos.1 to 5 were placed ex-parte. Defendant No.6 and defendant No.7 were subsequent purchasers during the pendency of the proceedings. As stated above, the sale deeds is hit by provisions of Sec.52 of Transfer of Property Act and the present petitioner purchased the suit properties on 30.06.2014 when an injunction was operating against his vendor as the trial Court granted injunction against the defendants on 04.12.2013. Virtually the present petitioner has purchased the property which is under litigation and now contends that the application for amendment is highly belated and cannot be accepted. The relief sought for by the plaintiff was for possession of suit schedule property from defendants 1 to 5 in respect of ‘B’, ‘C’, ‘D’ and ‘E’ properties and when subsequent sale deeds were made in favour of defendant No.6 and defendant No.7 during pendency of proceedings and in view of allowing of the proceedings that too in violation of injunction order, he was forced to file amendment application to add para 6(a) of the prayer in the plaint which is necessitated to resolve the dispute between the parties.
14. The basic principles which ought to be taken into consideration while allowing or rejecting the application for amendment are whether the amendment sought is imperative for the proper and effective adjudication of the case; whether the application for amendment is bona fide or mala fide; the amendment sought will not prejudice the subsequent purchasers during the pendency of the proceedings; refusing the amendment would in fact lead to injustice or lead to multiple litigation. The proposed amendment will not change constitutionally and fundamentally the nature of the suit or character of the case. My view is fortified by the dictum of the Hon’ble Supreme Court in the case of CHAKRESHWARI CONSTRUCTION PRIVATE LIMITED vs. MANOHAR LAL reported in (2017) 5 SCC 212, wherein at paragraphs 13 and 16 it is 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 v. 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 analyzing both the English and Indian cases, some basic 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.”
15. In view of the above, the trial Court is justified in allowing the application for amendment and the same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order in exercise of powers under Article 227 of the Constitution. Accordingly the petition is dismissed with costs of Rs.5,000/-.
Snb/ Sd/- JUDGE