IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.10595 OF 2019 (GM-CPC) BETWEEN:
Sri Vijayakumar Aged about 58 years S/o M.Gundappa Resident of A.K.Colony Konanakunte Post Anjanappa Main Road Bengaluru-560 062.
... Petitioner (By Sri V.Srinivas, Advocate) AND:
Smt.Rathnamma W/o Sri H.Gurumurthy Aged about 57 years R/at No.75/5, Gururathna Bricks Factory Near Srinidhi Layout Doddakallasandra Post Bengaluru-560 062 Rep. by GPA Holder Sri H.Gurumurthy Aged about 73 years (By Sri.Vinay G., Advocate for Sri.Nagaiah, Advocate) …Respondent This Writ Petition is filed under Article 227 of Constitution of India praying to set aside the order Dtd:14.02.2019 passed on the application filed by the plaintiff/respondent herein under order VI Rule 17 r/w Section 151 of CPC which is numbered as I.A.No.1/2017 in O.S.No.5452/2005 passed by the I Additional City Civil and Sessions Judge, Bangalore, produced at Annexure-J to the writ petition and etc.
This Writ Petition is coming on for preliminary hearing, this day, the Court made the following:-
ORDER The defendant No.13 has filed the present writ petition against the order dated 14.02.2019 on I.A.1/2017 in O.S. No.5452/2005 allowing the application filed by the plaintiff under Order VI Rule 17 r/w Section 151 of Code of Civil Procedure with cost of Rs.3,000/- payable Rs.1,000/- each to the defendant Nos.2, 4 and 13.
2. The respondent herein who is the plaintiff before the trial Court filed the suit for declaration declaring the plaintiff before the trial court is the absolute owner in physical possession of the plaint schedule property by virtue of the registered sale deed dated 23.08.1992 executed by the Anjanappa @ Dodda Anjanappa and praying for cancellation of the sale deed dated 31.10.2003 stated to have been executed by the 1st defendant impersonating himself as Anjanappa @ Muni Anjanappa in favour of 13th defendant as being illegal, void and not binding on the plaintiff and also for cancellation of the compromise final decree passed in O.S. No.927/1997 dated 10.05.1997 insofar as the plaintiff’s suit property and for permanent injunction against the defendants restraining from interfering with the peaceful possession and enjoyment of the plaint schedule property.
3. Raising various contentions, defendant Nos.2, 3, 6 and 13 filed written statement denied the plaint averments and contended that the suit filed by the plaintiff for declaration is not maintainable and sought for dismissal of the suit.
4. After contest, the said suit came to be dismissed on 07.02.2009 that was the subject matter of the appeal filed by the plaintiff in R.F.A. No.290/2009. This Court after hearing both the parties by order dated 18.08.2014 allowed the appeal and set aside the judgment and decree passed by the trial Court and remanded the matter for adjudication afresh with certain observations. Thereafter, the plaintiff filed an application under order VI Rule 17 r/w Section 151 of Code of Civil Procedure to amend the schedule of the plaintiff as under:
PROPOSED AMENDMENT To amend the schedule of the plaint to delete the word measuring “East to West 60 ft., and North to South 40 ft,” and substitute in its place “East to West 36.64 meters or 120 ft., and North to South 12.80 meters or 48 ft.,” and to amend the boundaries as follows:
To delete the “western boundary namely the remaining portion of the property of Plaintiff in Sy.No.31/1” and substitute in its place “property bearing No.54” in the schedule of the plaint in consonance with para 8(a) which was allowed by the Hon’ble High Court.
5. This Court in R.F.A. No.290/2009 has reserved liberty to the plaintiff to seek appropriate amendment of the suit schedule property before the Trial Court. Accordingly, application came to be filed for amendment. The said application came to be resisted by defendant Nos.2 and 4. The trial Court considering the application and objections, by the impugned order dated 14.02.2009, allowed the application with cost of Rs.1,000/- each to the defendants No.2, 4 and 13. Hence, the present writ petition is filed.
6. I have heard the learned counsel for the parties to the list.
7. Sri D.L. Jagadish, learned Senior Counsel appearing for Smt.D.J.Rakshitha for the 13th defendant contended with vehemence that the impugned order passed by the trial Court allowing the application for amendment is erroneous and contrary to the material on record and is liable to be quashed. He would further contend that admittedly suit filed in the year 2005 and present application filed in the year 2019. After lapse of more than 12 years, application filed by the plaintiff ought to have rejected by the trial Court on the ground of delay and laches alone. He has further contended that by way of amendment the plaintiff wants to take shelter to amend the proposed suit schedule property to the plaint which would change the very nature of the suit and cannot be allowed at a belated stage. Admittedly, earlier suit came to be dismissed and this Court in R.F.A. No.290/2009 set aside the judgment and decree dated 07.02.2009 and remanded the matter afresh for consideration. Therefore, at this stage, amendment cannot be allowed. He would further contend that the proposed amendment sought is not part and parcel of the property i.e. Sy.No.31/1 belongs to 13th defendant. Therefore, sought to allow the writ petition.
8. Per contra, Smt.Kavitha, learned counsel appearing for Sri.L.S.Venkata Krishna for the plaintiff/respondent sought to justify the impugned order and contended that the proposed amendment is in pursuance of the liberty given by this Court in R.F.A. No.290/2009 dated 18.08.2014. She further contended that the proposed amendment to the schedule measurement and boundary will not take away the defence taken by 13th defendant in the written statement and will not alter the nature of the suit. Hence, sought to dismiss the writ petition.
9. Having heard the learned counsel appearing for the parties, it is an undisputed fact that the respondent-plaintiff filed the suit for declaration and permanent injunction and for cancellation of the sale deed dated 31.10.2003 and also for cancellation of the compromise final decree passed in O.S. No.927/1997 dated 10.05.1997 and is not binding on the plaintiff insofar as the suit property is concerned. Defendants denied the plaint averments and contended that the suit is not maintainable. It is also not in dispute that after contest the suit in O.S. No.5452/2005 filed by the plaintiff came to be dismissed by judgment and decree dated 07.02.2009 and that was the subject of R.F.A. No.290/2009 before this Court. This Court after hearing both the parties, by judgment and decree dated 18.08.2014, allowed the appeal and set aside the judgment and decree of the trial Court and matter was remanded to the trial Court for reconsideration afresh.
10. The said order passed by this Court in the said R.F.A. No.290/2009 has reached finality. In para No.50 of R.F.A. No.290/2009, this Court has observed as under:
Now turning my attention to second limb of the amendment sought for namely, amendment of the schedule is concerned, the answer will have to be in negative for the reason that the plaintiff herself is not clear with regard to measurement of the suit schedule property and pleading already available on record, sale deed- Ex.P-2 when compared with the proposed amendment of the schedule, would indicate that said amendment would not clarify the extent of plaintiff’s claim to the suit schedule property. It is no doubt true, under the sale deed - Ex.P-2 the extent of property purchased by the plaintiff has been described as measuring East to West 120 ft. and North to South 43 ft. and in all 468.99 sq. mtrs. At paragraph 6 of the plaint it has been contended by plaintiff that she has purchased 4 sites bearing Nos.50, 51, 52 and 53 under sale deed dated 23.8.1982- Ex.P-2 which would indicate that total measurement of these four (4) sites is 468.99 meters. On account of her assertion of being in lawful possession to an extent of 50% and there being no threat in respect of said portion, she seems to have not sought for declaration to the entire extent. Her pleading in the plaint would indicate this fact. For reasons best known plaintiff having stated originally in the plaint the measurement of suit schedule property is 120 ft. East to West has struck off the same and restricted her claim to 60 ft. East to West. Intriguingly, she has not amended the total extent of the sites bearing 50, 51, 52, 53. The inconsistencies being writ large and even by the proposed amendment, plaintiff having not sought to substitute her claim to the extent to which she claims, amendment of the schedule as sought for would not alter the situation or it would not come to the rescue of the plaintiff as it stands. Hence, the amendment of the schedule sought for cannot be permitted in the present form. However, this does not prevent or preclude the plaintiff from seeking appropriate amendment of the schedule before the trial court and liberty is reserved to plaintiff in this regard. It is needless to state the defendants would also be at liberty to file objection to such application and trial Court would also be at liberty to adjudicate said application on merits and in accordance with law.
11. R.F.A. No.290/2009 was disposed of on 18.08.2014 and application for amendment of the schedule to the plaint came to be filed on 17.03.2017 i.e. within three years from the date of order passed by this Court. Learned Senior counsel appearing for defendant No.13 praying this Court to reject the application filed for amendment mainly on the ground that there is a delay of 12 years and the order passed by this Court on 18.8.2014 in R.F.A. No.290/2009 reserving liberty to the plaintiff to amend the plaint has reached finality. Based on such liberty reserved by this Court, the application came to be filed. The trial Court considering the application and objections has recorded a finding that now after amendment as per para No.8(a), the present application is filed to delete the earlier measurement of the suit property and to delete the western boundary. The plaintiff has also sought to substitute new measurement and new Western boundary. Ex.P2 is the certified copy of the sale deed dated 23.8.1982 and as per this document, the plaintiff has purchased the alleged property measuring 120’ x 48’. It has also recorded a finding that the proposed amendment does not change the nature or character of the suit. It is the additional burden on the plaintiff to prove the alleged extent and boundary of the suit schedule property. Since the application is filed after lapse of 12 years, the plaintiff has to compensate other side for delay. Accordingly, allowed the application with cost of `3,000/- payable `1,000/- each to defendants 2, 4 and 13.
12. The material on record clearly depicts that this Court by an order dated 18.08.2014 while allowing RFA had permitted the defendants to file written statement Accordingly, I.A.1/2014 was allowed in part and permitted the plaintiff to amend the plaint by adding paragraph 8(a) to the plaint and granted liberty to the defendants to file additional written statement. The said finding recorded by this Court has reached finality. Therefore, application came to be filed from the date of order passed within three years. The reasoning assigned by the Trial Court allowing the application is just and proper, the petitioner has not made out any ground to interfere with the impugned order in exercise of power under Article 227 of Constitution of India. Accordingly, writ petition is dismissed.
13. It is needless to observe that it is always burden on the plaintiff to prove the relief sought for since the plaintiff has come to the Court for declaration and cancellation of the sale deed dated 31.10.2003 and for cancellation of the compromise final decree in O.S. No.927/1997 dated 10.05.1997. Mere allowing the application does not amounts to decreeing the suit. Ultimately, it is for the plaintiff to prove his case. Since the suit is of the year 2005 and we are in the year 2019, the Trial Court is directed to expedite suit itself subject to co-operation of the parties.
Sd/-
JUDGE BS