IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.36127/2017(GM-CPC) BETWEEN:
SMT. VIJAYALAKSHMI RAMANNA W/O. LATE T.V. RAMANNA AGED ABOUT 78 YEARS, R/A NO.114, NEW NO.24, K.R. ROAD, BASAVANAGUDI, BENGALURU-560004.
(BY SRI:KRISHNA KUMAR S.R., ADVOCATE) AND 1. SRI. RAGHUNANDAN RAMANNA S/O. LATE T.V. RAMANNA, AGED ABOUT 50 YEARS.
PERMANENT ADDRESS R/A NO.114, NEW NO.24, K.R. ROAD, BASAVANAGUDI, BENGALURU-560004.
CORRESPONDENCE ADDRESS R/A NO.28, AGA ABBAS ALI ROAD, C-6, SWAPNALOK, ULSOOR, BENGALURU-560042.
2. SRI. DEVANANDA RAMANNA S/O. LATE T.V. RAMANNA, AGED ABOUT 44 YEARS, R/A NO.114, NEW NO.24, K.R. ROAD, BASAVANAGUDI, BENGALURU-560004.
(BY SRI.AMAR KUMAR T.S. ADV., FOR C/R1 NOTICE TO R2 IS DISPENSED WITH) ...PETITIONER …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER AT ANNEXURE-A DATED 17.7.2017 PASSED IN O.S. NO.7325/2009 BY THE COURT OF THE XXXVIII ADDL. CITY CIVIL JUDGE AT BENGALURU, ALLOWING THE APPLICATION, I.A. NO.10 FILED BY THE RESPONDENT NO.1 UNDER ORDER VI RULE 17 OF CPC., 1908 FOR PERMISSION TO AMEND PLAINT AND CONSEQUENTLY ALLOW I.A. NO.10.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The defendant No.1 filed the present writ petition against the order dated 17.7.2017 on I.A.10 in O.S. No.7325/2009 allowing the application filed by the plaintiff under Order VI rule 17 r/w Section 151 of Code of Civil Procedure by imposing cost of Rs.500/-.
2. The present 1st respondent who is the plaintiff in O.S. No.7325/2009 filed the suit for declaration, permanent injunction and for partition of the suit schedule properties that the plaintiff has got 1/3rd share in item No.1 of the suit schedule property morefully described in item No.1 of the schedule and he is entitled for 1/3rd share and also sought for declaration of the release deed 8.5.2007 and partition deed dated 14.5.2007 entered into by the defendants is not binding on the plaintiff’s share over 1/3rd share of the suit schedule properties contending that the 1st defendant is the mother and defendant No.2 is the younger brother of the plaintiff. The father of the plaintiff late Sri.T.V. Ramanna inherited certain properties via partition deed on 16.7.1959 morefully mentioned in para No.11 of the plaint and further contended that in the year 1993, the plaintiff’s father effected an oral partition among the family members and separated the coconut gardens to each individual. In the said oral partition, plaintiff was allotted with the coconut garden Doddi Thota measuring 16 guntas in Sy. No.861, 20 guntas in Sy.No.862; 1 acre 19 guntas in Sy.No.863, 1 acre 8 guntas in Sy.No.864, 2 acres 14 guntas in Sy.No.865, 1 acre 20 guntas in Sy.No.866; 2 acre 2 guntas in Sy.No.871; 1 acre 18 guntas in Sy.No.873; 1 acre 28 guntas in Sy.No.874; 1 acre 27 guntas in Sy.No.875 in all measuring 16 acres 24 guntas in Malur Village, Malur Hobli, Channapatna Taluk, Ramanagar District. Thereby, the plaintiff became the absolute owner of the said property subsequent to the oral partition effected in the year 1993-94. Ever since the date of allotment of the property the plaintiff is enjoying the same as its absolute owner with possession. It is further submitted that subsequently on 13.09.2004, plaintiff’s father Late T.V. Ramanna being absolute owner of the property bearing site No.114 (old No.77) on K.H. Road, measuring an extent of 100 feet x 80 feet had executed a Gift Deed and Gift Deed was registered in favour of the plaintiff and defendants jointly. Accordingly, the plaintiff is the absolute owner of 1/3rd share in the said property and the same is morefully described in item No.1 of the plaint schedule property. It is further submitted that subsequent to Gift deed dated 13.09.2004, the plaintiff and defendants on 15.12.2004 entered into a partnership deed to carry on business on partnership basis and formed themselves into a partnership firm with effect from 15.12.2004 to carry on hospitality business under the name and Style of M/s. Pavilion Group in the property allotted under Gift Deed on the terms and conditions agreed between the plaintiff and defendants. He would further contend that the plaintiff and defendants have agreed certain important conditions with regard to capital, place, working partners and management, salaries to partners on book profits, name of the partner, transfer of assignment and alteration of terms. It is further contended that on the request made by the 1st defendant and as per his wish, plaintiff executed General Power of Attorney for the limited purpose to safeguard the interest of the plaintiff during the absence of the plaintiff. It is submitted that a release deed executed on 8.5.2007 was created by 1st defendant in favour of 2nd defendant on 8.5.2007 is fraudulent. Therefore, he has filed the suit for the relief sought.
3. The defendants filed the written statement denied the plaint averments and contended that the very suit filed by the plaintiff and for partition and declaration as sought is not maintainable. The plaintiff is the son of Sri.Ramanna knowing fully well, has executed the power of attorney in favour of 1st defendant. The 1st defendant has acted in accordance with all the deeds alleged in the plaint and these are valid and genuine. Hence, submits that the plaintiff is not entitled any relief and sought for dismissal of the suit.
4. When the matter was posted for commencement of trial, at that stage, the plaintiff filed an application I.A.10 under Order VI Rue 17 r/w Section 151 of Code of Civil Procedure to add para No.7A and in the prayer column to add para No.4A contending that defendants in collusion with each other without the knowledge and consent of the plaintiff, created a deed of retirement dated 24.1.2007 to prevent the plaintiff from participating in the business of the Firm and to deprive the share of the plaintiff in the property of the company and business profits, created deed of retirement dated 24.1.2007, deed of release dated 8.5.2007 and deed of partition dated 14.5.2007. All these documents are signed by defendant No.1 purporting to be the Power of Attorney holder of the plaintiff, without knowledge, consent or authority of the plaintiff. The defendants have created the Deed of Retirement with a fraudulent intention of depriving the plaintiff of the legitimate share of the plaintiff in the partnership business. Hence, the said deed of retirement is null and void and has no sanctity in law and the same has not legally brought an end to the partnership agreement between the plaintiff and defendants. Therefore, sought for additional prayer to declare that deed of retirement dated 24.1.2007 is illegal, inoperative, void and the plaintiff is to continue as partner in the Firm.
5. The said application was resisted by the learned counsel for the defendants and contended that the very application filed by the plaintiff is barred by limitation and the proposed amendment is neither essential nor necessary for adjudication of the issue in controversy involved in the suit. The trial Court considering the applications and objections, by the impugned order dated 17.07.2017 allowed I.A.10 filed by the plaintiff by imposing cost of Rs.500/-. Hence, present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri.Krishna Kumar S.R., learned counsel for the petitioner-1st defendant vehemently contended that the impugned order passed by the trial Court allowing the application for amendment is erroneous and contrary to the material on record. He would further contend that the application for amendment filed is barred by limitation in view of the provisions of Article 58 of the Limitation Act (for short ‘the Act’) and also contended that when the plaintiff has issued a legal notice on 25.06.2008, claiming share alleging certain deeds executed by 1st defendant as his power of attorney is illegal, the same was replied by the defendant on 18.07.2008 referred to the retirement deed dated 21.04.2007 stating that the suit filed in the year 2009 and thereafter the written statement came to be filed on 21.1.2010. The present prayer sought to declare that the retirement deed dated 21.04.2007 is barred by limitation since the present application is filed only on 04.02.2016. Therefore, he would contend that the trial Court ought to have dismiss the application for amendment as the prayer sought is barred by limitation. In support of his contention, learned counsel relied upon the dictum of the Hon’ble Supreme Court in the Case of Khatri Hotels Private Limited and another Vs. Union of India and another reported in (2011) 9 SCC 126 to the effect that the provision of Article 58 of the Act the word ‘first’ has been used between the words ‘sue’ and accrued’. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. Suit was filed in the year 2009 and the present application for amendment was filed on 04.02.2016 is barred by limitation. He also invited the attention of the Court that while amending the plaint to add on the date of grant of amendment such amendment cannot be granted and sought to quash the impugned order passed by the trial Court by allowing the writ petition.
8. Per contra, Sri. Amar Kumar T.S., learned counsel for the plaintiff while justifying the impugned order strenuously contended that the amendment sought on I.A.10 is only a consequential prayer based on the same set of facts already pleaded in the plaint in addition to the prayer at para No.5 of the original plaint. He would contend that the plaintiff to claim additional consequential prayer by way of amendment which is necessary for sustaining the case alleged in the plaint. He further contended that the amendment should be allowed as rightly allowed by the trial Court. In support of his contention, he relied upon the judgment of the Hon’ble Supreme Court in the case of L.C. Hanumanthappa Vs H.B. Shivakumar reported in (2016) 1 SCC 332 and invited the attention of the Court to para Nos.15, 19 and 20 and sought to dismiss the writ petition.
9. In view of the rival contentions urged by learned counsel for the parties, the only point that arises for consideration is ‘Whether the impugned order passed by the trial Court allowing the application I.A.10 filed under Order VI Rule 17 r/w Section 151 of Code of Civil Procedure to amend the facts at para No.7A and prayer at para No.4A with regard to the consequential prayer is justified in the facts and circumstance of the present case?’.
10. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the materials on record carefully.
11. It is not in dispute that the present respondent who is the plaintiff before the trial Court filed the suit for partition and separate possession of 1/3rd share and seeking declaration of the release deed dated 8.5.2007 and partition deed dated 14.05.2007 are not binding on the plaintiff in respect of his share over the suit schedule properties and passed an order for reinstatement of the partnership deed dated 15.12.2004 and also to direct the defendants to pay partnership profits in the partnership business to an extent of the plaintiff’s share. The same is disputed by the defendants by filing written statement and specifically contended that on the basis of power of attorney, the 1st defendant has further transacted various deeds as alleged in the suit legally and the same are valid. Whether the plaintiff is entitled 1/3rd share, whether partition deed or release deed are not binding on the plaintiff or not and the plaintiff has to continue in the deed and whether the plaintiff has executed the power of attorney has to be adjudicated after completion of both oral and documentary evidence.
12. It is the specific case of the plaintiff in the plaint at para No.20 that as on the date of the suit, the plaintiff is continued to be a partner in the partnership Firm even though defendants have removed him from the partnership illegally. The 1st defendant illegally created certain documents showing that the plaintiff has retired from the partnership Firm. The plaintiff has never given any letter or cancellation to retire from the Firm as alleged by defendant Nos.1 and 2 in their reply notice dated 18.07.2008. The defendants have created documents according to their own whims and fancies. The plaintiff is the absolute owner of the item No.1 of the suit schedule property as well as 30% share holder of M/s Pavilion Group. It is after learning about the illegal transaction of the defendants in respect of the plaintiffs property, the plaintiff issued a legal notice to the defendants on 25.06.2008 calling upon them to cancel the partnership deed dated 8.5.2007. The said notice has been served on the defendants. In view of the facts stated with regard to the fraud played by the defendants at para No.20 before the evidence yet to commence, the present application is filed for amendment of para No.7A and para No.4A of the prayer. The amendment sought is based on the existing facts of para No.7A and 4A. The suit was filed in the year 2009 within the law prescribed under Article 58 of the Act. When the relief sought is within the time prescribed, the additional facts is only a consequential. Therefore, the question of limitation raised by the petitioner would not arise.
13. The trial Court considering the material on record, recorded a specific finding that as per order VI Rule 17 of Code of Civil Procedure, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such matter and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties, provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the mater before the commencement of trial. So, here, the trial has not commenced and evidence of both side is yet to be recorded. At this juncture, after framing issues, the case has to be adjourned for recording of evidence by the side of the plaintiff, but in the meanwhile, the plaintiff has filed the present application I.A.No.10 for amendment of pleadings at para 7 by adding para 7A. The main allegation of the plaintiff is that the 1st defendant colluding with other defendants, himself has created some documents purporting to believe that the plaintiff has executed deed of retirement dated 24.1.2007. In the prayer column of the plaint, the plaintiff has sought for declaration that release deed dated 8.5.2007 is null and void and sought for reinstatement of partition deed dated 15.12.2004. So the valuable right of the plaintiff which would be accrued to him for the adjudication of the subject matter cannot be defeated at this early stage by rejecting I.A.No.10 filed for amendment of plaint, as sought for.
14. The trial Court further recorded a finding that the amendment sought for by the plaintiff is substantially and directly connected to the subject matter of the suit which is in controversy. Moreover, the evidence by the side of the plaintiff is yet to be commenced by allowing the amendment application. Hence, by allowing this amendment application, no harm causes to the right of defendant Nos.1 and 2, because defendant Nos.1 and 2 have an ample opportunity to cross-examine the evidence of plaintiff’s side by establishing the rebuttal evidence to disprove the proposed amendment sought for by the plaintiff, if allowed. If the application is allowed after belated stage, then the point of limitation can be kept open by framing appropriate issue with regard to limitation. The proposed amendment sought for by the plaintiff by filing I.A.10 is not barred under any statutory Law. Accordingly, trial court allowed the application. When the main prayer is within the time, seeking consequential relief based on the same set of facts limitation would not arise. Even otherwise the defendant can urge limitation with regard to the additional prayer at the time of arguing the main suit itself the trial Court can consider the same.
15. The Hon’ble Supreme Court in the case of L.C. Hanumanthappa Vs. H.B. Shivakumar reported in (2016) 1 SCC 332 stated supra at para No.15, 19 and 20 is held as under:
15. As early as in the year 1909, the Bombay High Court in Kisandas Rupchand V. Rachappa Vithoba Shilwant, held as follows: (ILR p.655) “… All amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties….. but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?”
19. The facts in the aforesaid case were that the plaintiffs had, on the basis of the material facts stated in the plaint, claimed damages on the basis of the tort of conversion. It had been held by the courts below that on the pleading and on the evidence such claim must fail. At the stage of arguments in the Supreme Court, the plaintiff applied to the Supreme Court for amendment of the plaint by raising an alternative plea on the same set of facts, namely, a claim for damages for breach of contract for non-delivery of the goods. The respondents in that case resisted the said plea for amendment, stating that a suit based on this new cause of action would be barred by limitation. This Court, while allowing the said amendment, stated that no change needs to be made in the material facts pleaded before the court all of which were there in support of the amendment prayer. In any case, the prayer in the plaint as it originally stood was itself general and merely claimed damages. Thus, all the allegations which were necessary for sustaining a claim of damages for breach of contract were already there in the plaint. The only thing that was lacking was the allegation that the plaintiffs were in the alternative entitled to claim damages for breach of contract.
20. It is clear that the case belonged to an exceptional class of cases where despite the fact that a legal right had accrued to the defendant by lapse of time, yet this consideration was outweighed by the special circumstances of the case, namely, that no new material fact needed to be added at all, and only an alternative prayer in law had necessarily to be made in view of the original plea in law being discarded.
16. In view of the above, the judgment relied upon by the learned counsel for the petitioner in the case of Khatri Hotels Private Limited referred to supra it was a case where the suit filed for declaration and permanent injunction. The period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not given rise to fresh cause and the suit will be liable to be dismissed if it beyond the period of limitation counted from the day when the right to sue first accrues. The facts of the said case are different from the facts of the present case. That was a case where the plaintiff has approached the Court with unclean hands and later he sought certain amendments which was refused. It was a case where the plaintiff has not approached with clean hands and the said case was decided on the provisions of the Article 58 of the Act in the original suit. The facts of the said case has no application in the facts of the present case.
17. Considering the entire material on record, the trial Court was justified in allowing the application for amendment. Mere allowing the amendment application with regard to certain additional facts and consequential prayer does not amount to decreeing the suit. Ultimately, it is for the plaintiff to prove and establish the contentions raised in the prayer as sought for. The trial court is justified in allowing the application filed under Order VI Rule 17 r/w Section 151 of Code of Civil Procedure and no interference is called for under Article 227 of Constitution of India. Accordingly, writ petition is dismissed. All the contentions of both the parties are left open including law of limitation, if any.
Sd/-
JUDGE BS