IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.52784/2016 (GM – CPC) BETWEEN Sri Muniyappa s/o Munihanumaiah Aged about 60 years Mallathahalli Yeshwanthapura Hobli Bengaluru – 560 056. .. Petitioner (By Sri K Sreedhar, Advocate) AND 1. Smt.Indrani, since deceased By her legal representative.
1(a) Sri Kumar s/o Ramadas and husband of Indrani Major, r/o No.104 10th Cross, Magadi Road Agrahara, Behind Prasanna Theatre, Bangalore-560023.
1(b) Master Srinivasa s/o Kumar, Minor.
1(c) Kumari Tejaswini d/o Kumar, Minor.
(Rep. by Sri Kumar as Guardian) No.104, 10th Cross Magadi Road, Agrahara Behind Prasanna Theatre Bangalore-23.
2. Sri Ramadas Major, Father’s name not known, c/o No.2/23, 9th Cross, Magadi Road, Bangalore-23.
3. Sri Bommegowda Major, Father’s name not known, c/o No.2/23, 9th Cross, Magadi Road, Bangalore-23. .. Respondents (By Sri T Srinivasan, Advocate for R1(a) and R2, and also for R1(b), R1(b) and (c) are minors reptd. by R1(a) v/o/dtd. 14.3.2017, notice to R3 is dispensed with) This WP is filed under Article 227 of the Constitution of India, praying to set aside the order dtd:23.9.2016 on I.A.No.28 in OS No.1182/2004 passed by the I Addl. City Civil and Sessions Judge, Bengaluru CCH-2 vide Annexure-E and grant the prayer made in the said I.A. for amendment of the prayer in the plaint.
This writ petition coming on for orders this day, the court passed the following: -
ORDER The plaintiff has filed the present writ petition against the order dated 23.9.2016 on I.A.No.28 made in OS No.1182/2004 rejecting the application filed under Order VI Rule 17 of Code of Civil Procedure.
2. The plaintiff has filed OS No.1182/2004 for permanent injunction against the defendants in respect of suit schedule property morefully described in the schedule contending that he is the owner in possession of the suit schedule property purchased by virtue of a registered sale deed dated 13.10.2003 and the defendants are strangers to the property and have no right, title and interest over the suit schedule property. Therefore, he filed the suit.
3. The defendants filed written statement denying the plaint averments and contended that the very suit filed by the plaintiff is not maintainable. They also contended that defendant No.1 is the absolute owner in physical possession and enjoyment of house property constructed in site Nos.46 and 47 situated in Sy.No.42 in Block No.54/2 at Mallathhalli Grama Panchayath, Yeshwanthpura Hobli, Bengaluru North Taluk and sought for dismissal of the suit.
4. When the matter was posted for cross- examination of PW1, at that stage, the plaintiff filed the present application under Order VI Rule 17 of Code of Civil Procedure to permit the plaintiff to amend prayer No.2 declaring that he is the absolute owner of the suit schedule property contending that while drafting the plaint, the words mentioned in the present application have been left out. It is only a typographical error. Therefore, the present application has been filed. If the application for amendment is allowed, no prejudice will be caused to the defendants and it would not alter the nature of the suit.
5. The defendants filed objection to the application contending that the very application filed by the plaintiff at a belated stage is not maintainable. The suit was filed in the year 2004 and the application for amendment was filed in the year 2016 i.e. after lapse of 12 years. Therefore, the application for amendment lacks bonafide and is liable to be rejected.
6. The Trial Court considering the application and objection by impugned order dated 23.9.2016 has rejected the application filed by the plaintiff mainly on the ground that the amendment sought for by plaintiff at belated stage cannot be allowed. Hence, the present writ petition is filed.
7. I have heard the learned counsel for the parties to the lis.
8. Sri M S Hiremath, learned counsel appearing for Sri K Sreedhar, learned counsel for the petitioner vehemently contended that the impugned order passed by the Trial Court rejecting the application for amendment is erroneous and contrary to the material on record. Further, learned counsel contended that the petitioner filed the present application for amendment seeking permission to amend the prayer in the prayer column of the plaint declaring that he is the absolute owner of the suit schedule property is necessary to decide the dispute between the parties. The Trial Court without considering the averments made in the original plaint and the proposed amendment has proceeded to reject the application erroneously. Therefore, he sought for allowing the writ petition by quashing the impugned order. In support of his contention, learned counsel appearing for the petitioner sought the reliance on the judgment of the Hon’ble Supreme Court in the case of Sampath Kumar –vs- Ayyakannu and another reported in AIR 2002 SC 3369 and so also dictum of this Court in the case of Ramaswamy Reddy –vs- Smt.Yellamma and others reported in 2016 (3) KCCR 2568.
9. Per contra, Sri T Srinivasan, learned counsel appearing for respondent Nos.1(a) and 2 sought to justify the impugned order and contended that the proposed application was filed for amendment after the lapse of more than 12 years. Therefore, he submits that the Trial Court was justified in rejecting the application for amendment and sought for dismissal of the writ petition.
10. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties.
11. It is not in dispute that the plaintiff filed the suit for permanent injunction in respect of the suit schedule property contending that the plaintiff is the owner in possession and enjoyment of suit schedule property having purchased the same by means of a registered sale deed dated 13.10.2003 from his vendor, Sri M P Gundappa and he has constructed a small house and compound wall. The defendants are strangers to the property etc.
12. The defendants filed the written statement denying the plaint averments and contended in para-6 of the written statement that defendant No.1 is the absolute owner in physical possession and enjoyment of the house property constructed in site Nos.46 and 47 situated in Sy.No.42 in Block No.54/2 at Mallathhalli Grama Panchayath, Yeshwanthpura Hobli, Bengaluru North Taluk.
13. It is well settled that a suit for permanent injunction can be converted into declaration of title at any stage on the basis of the same set of pleadings. In the application for amendment, the petitioner/plaintiff sought prayer permitting him to amend the prayer column of the plaint declaring that he is the absolute owner of the suit schedule property based on the same set of pleadings originally pleaded in the plaint. Mere allowing the prayer to the effect that the plaintiff is the absolute owner of the suit schedule property based on the same set of pleadings will not change the nature of the suit and no prejudice will be caused to the defendants. It is the case of the defendants that the plaintiff has to establish his title and possession over the suit schedule property based on the oral and documentary evidence to be adduced and produced by both the parties. It is always open for the defendants to file additional written statement, if any, denying the contentions raised in the application for amendment.
14. The Trial Court while considering the application for amendment and objections has dismissed the application only on the ground that it was filed at the belated stage. The Hon’ble Supreme Court in the case of Chakreshwari Construction Private Limited –vs- Manohar Lal reported in (2017) 5 SCC 212 while considering the provision of Order 6 Rule 17 held that the proviso to Order 6 Rule 17 of CPC is directory and not mandatory and at any stage of the proceedings, an application can be allowed, it will not change the nature of the suit and no prejudice will be caused to the defendants at paras-13 and 16 read 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 Buildings 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. The Hon’ble Supreme Court in the case of Revajeetu Buildings and Developers –vs- Narayanaswamy and sons and others reported in (2009) 10 SCC 84 held at paras-59 and 64 as under:
“59. The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The courts have very wide discretion in the matter of amendment of pleadings but court’s powers must be exercised judiciously and with great care.
64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.”
16. For the reasons stated above, the writ petition is allowed. The impugned order dated 23.9.2016 on I.A.No.28 filed under Order VI Rule 17 of Code of Civil Procedure made in OS No.1182/2004 passed by the I Addl. City Civil and Sessions Judge, Bengaluru City is quashed. I.A.No.28 filed by the plaintiff under Order VI Rule 17 of Code of Civil Procedure made in OS No.1182/2004 is allowed subject to payment of cost of Rs.3,000/- to the defendants by the plaintiff. The defendants are also permitted to file additional written statement, if any.
All the contentions raised by both the parties are left open.
Sd/- JUDGE Bkm