IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.36386 OF 2016 (GM-CPC) BETWEEN:
1. YASHODHARA S/O H.C.BASAVARAJU AGED 40 YEARS 2. ASHA W/O KRISHNAMURTHY AGED 30 YEARS THE PETITIONER NUMBER 1 AND 2 ARE R/O HARANAHALLI VILLAGE KASABA HOBLI PANDAVAPURA TALUK MANDYA DISTRICT – 571 436.
(BY SRI.PRAMOD R, ADV.,) AND:
1. H.C.KRISHNACHAR S/O LATE CHIKKACHAR AGED 75 YEARS R/O NO.18, 1ST CROSS BINNI MILL ROAD GANGANAGARA EXTENSION ... PETITIONERS BANGALORE – 13.
2. KIRANKUMAR S/O LATE RADHAMMAA AGED 23 YEARS 3. SHASHIKUMAR S/O LATE RADHAMMA AGED 21 YEARS 4. VIDYA D/O LATE RADHAMMA AGED 19 YEARS THE RESPONDENT NO. 2 TO 4 ARE R/O DOOR NO.327/A MLA STREET, NEAR CHANNAKESHAVA TEMPLE BOONALLI VILLAGE HASSAN – 573 220.
5. SMT. KAMAKSHI W/O LATE SANNASWAMY AGED 61 YEARS C/O SOMESHACHAR R/O PWD QUARTERS, GORUR HASSAN DISTRICT -571 438.
6. SRI JAYARAMU S/O EREGOWDA AGED 43 YEARS R/O HARANAHALLI VILLAGE KASABA HOBLI, PANDAVAPURA TALUK MANDYA DISTRICT – 571 438.
7. MARIGOWDA S/O KARIGOWDA AGED 45 YEARS R/O CHIKKAGANGAVADI VILLAGE, DUDDA HOBLI MANDYA TALUK – 571 438.
8. SRI.B.YASHODHARA S/O H.C.BASAVARAJU AGED 34 YEARS R/O HARANAHALLI VILLAGE KASABA HOBLI PANDAVAPURA TALUK MANDYA DISTRICT – 571 438.
(BY SRI K.SRINIVASAN, ADV., FOR R1;
…RESPONDENTS NOTICE TO R2 TO R8 IS DISPENSED WITH VIDE ORDER DATED 28.03.2019) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER AT ANNEXURE - E DATED 10.06.2016 PASSED BY ADDITIONAL CIVIL JUDGE (JR.DN), AT MANDYA IN O.S.NO.326/2003 ON I.A.NO.27 FILED UNDER ORDER 11 RULE 14 OF CODE OF CIVIL PROCEDURE AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is filed by the petitioners - legal representatives of the defendant Nos.1 and 2 against the order dated 10.6.2016 made in O.S.No.326/2003 passed by the Additional Civil Judge (Jr.Dvn.) at Mandya, allowing the application for amendment of the plaint of Item No.3 of the schedule as Sy.No.67/1 instead of Sy.Nos.671/1 and 57/1 as mentioned in the plaint.
2. The first respondent who is the plaintiff before the trial Court filed the suit for partition and separate possession in respect of suit schedule properties morefully described in the schedule to the plaint (four items) contending that the suit schedule propertie are the joint family properties of the plaintiff and defendants and that there was no partition. The defendants have filed the written statement contending that the suit is not maintanable. Hence, sought for dismissal of the suit.
3. After completion of the arguments, when the matter was posted for judgment on 23.4.2016, the learned Judge has observed that on perusal of the record it shows that there was some clerical mistake in the plaint. Hence, plaintiff was directed to take necessary steps to clarify the same. In order to clarify the same, learned counsel for the plaintiff has filed application under Order VI Rule 17 to permit the plaintiff to amend the plaint of Item No.3 of the schedule as Sy.No.67/1 instead of Sy.Nos.671/1 and 57/1 as mentioned in the plaint and has contended that the said mistake occurred due to typographical error. Therefore, sought for amendment of the plaint. The said application was resisted by the defendants.
4. The trial Court considering the application and objections, by the impugned order dated 10.06.2016, allowed the application on the ground that the amendment sought is only to correct and clarify the error in the plaint. Hence, the present writ petition is filed by the legal reprsentative of the defendants.
5. I have heard the learned counsel for the parties to the lis.
6. Sri.Pramod.R, learned counsel for the petitioners contended that the impugned order passed by the trial Court allowing the application for amendment of the plaint of Item No.3 in the schedule is not proper as the same is errorenous and contrary to the materials on record. He further contended that the application is filed when the matter was posted for judgment, the same is not permissible in law and cannot be sustained. He would further contend that in view of the dictum rendered by the Division Bench of this Court in the case of RABIYA BI KASIM M,. Vs. THE COUNTRY WIDE CONSUMER FINANCIAL SERVICE LTD., - ILR 2004 KAR 2215, that once the case is posted for judgment, except the pronoucement of the judgment, no application should be filed after final arguments is heard. Therefore, sought to allow the writ petition.
7. Per contra, Sri.K.Srinivasan, learned counsel for the respondent No.1 contend that the application can be filed at any stage of the proceedings including the appeal, unless, it will not prejudice the case of other side and change the nature and character of the suit. Therefore, he sought for dismissal of the writ petition.
8. Having heard the learned counsel for the parties, it is not in dispute that the suit is filed by the plaintiff for partition and separate possesion. After completion of evidence, when the matter was posted for judgment, the Trial Court noticed that there is some clerical mistake in the plaint. Therefore, directed the plaintiff to take necessary steps to clarify the same. Admittedly, the said order passed by the trial Court has not at all been challenged by the present petitioners.
The application filed under Order VI Rule 17 of Code of Civil Procedure, 1908 by the plaintiff is to correct the survey number of Item No.3 in the plaint as Sy.No.67/1 instead of Sy.Nos.671/1 and 57/1 and the boundaries, measurements remained intact. Mere allowing the application for amendment for change of suvery number in the plaint schedule will not prejudice the case of the defendants. It is well settled that amendment of the plaint can be allowed at any stage of the proceedings, unless, the amendment sought would prejudice the case of the other side. Admittedly, in the present case, the amendment sought is only to change survey number in the schedule to the plaint, which was purely typographical error. Therefore, the same will not prejudice the case of the defendants and amendment sought is imperative for proper adjudication of the case.
9. Insofar as the contention of the learned counsel for the petitioners that once the matter has been heard and posted for judgment, no application can be filed after final arguments, cannot be accepted, because in the present case there is no objection from the other side. The above said Rabiya’s case is not applicable to the present case. The Hon’ble Apex Court in the case of K.K.VELUSAMY v. N.PALANISAMY – (2011) 11 SCC 275, it has been held as under:
“-Power under S.151 can be exercised to deal with any particular procedural aspect which is not provided expressly or impliedly in CPC, if ends of justice so warrant and to prevent abuse of process of Court – Court in appropriate cases can exercise its discretion to permit reopening of evidence and / or recalling of witnesses for further examination / cross-examination after evidence led by parties is concluded and arguments have commenced or even when arguments have concluded and case has been reserved for judgments, as there is no provision in this regard in CPC after deletion of Or.18 R.17-A”.
10. It is well settled in the case of CHAKRESHWARI CONSTRUCTION PRIVATE LIMITED v. MANOHAR LAL reported in 2017 (5) SCC 21, that amendment can be allowed at any stage of the proceedings, even in the appeal, unless and until the amendment will not cause prejudice to the other side nor cause of action or constitutionally or fundamentally changes the nature and character of the suit. In paragraph Nos.13 and 16, it is held as under:-
“13. The principle applicable for deciding the application made for amendment in the pleadeing 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 analysing 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 addequately 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 Ruke 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 application but, in out opinion, the appellant had explained the delay. One cannot dispute that in appropriate case, the parties are permitted to amend their pleading 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”.
11. The learned Judge has noticed the mistake in the plaint, when the matter was posted for judgment and directed the plaintiff to take necessary steps by an order dated 23.4.2016, in exercise of the powers under Section 151 of Code of Civil Procedure, 1908. The Court has got power under Section 151 of Code of Civil Procedure, 1908, to prevent the abuse of process of law.
Therefore, the contenion of the learned counsel for the petitioners that once the matter is posted for judgment, amendment cannot be allowed at that stage cannot be accepted.
12. For the reasons stated above, the impugned order dated 10.06.2016 in O.S.No.326/2003 passed by the trial Court is just and proper. The petitioners have not made out any good ground to interfere in the impugned order in exercise of power under Article 227 of Constitution of India. Accordingly, the writ petition is dismissed.
Sd/- JUDGE VMB