Smt Sarasamma vs Jagadeesh M C
2022 Latest Caselaw 9468 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF JUNE, 2022

                      BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

   WRIT PETITION NO. 35479 OF 2018(GM-CPC)

BETWEEN:

SMT SARASAMMA
W/O GANGADHARAPPA,
AGED ABOUT 52 YEARS,
NO. 64, CHIKKABANAVARA, YESHWANTHAPURA HOBLI,
BANGALORE NORTH TALUK ,
BANGALORE-560097.
REPT BY GPA HOLDER,
K.T MANJUNATH

                                      ...PETITIONER

(BY SRI.RAMESH K, ADVOCATE)

AND:

JAGADEESH M C
S/O CHIKKARAMAIAH,
AGED ABOUT 33 YEARS,
R/AT NO. 136, 2ND CROSS,
3RD MAIN, KALYAN NAGAR,
T. DASARAHALLI, BANGALORE-560057

                                      ...RESPONDENT

(BY SRI.S.Y.KUMBAR, ADVOCATE)
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     THIS PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
ANNEXURE-F, THE ORDER DTD: 12.3.2018 PASSED ON
I.A.NO.IV IN O.S.NO.561/2012, ON THE FILE OF THE
COURT OF III ADDL. CIVIL JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU AND THEREBY ALLOWING THE
AMENDMENT APPLICATION AS PRAYED FOR THEREIN IN
THE FACTS AND CIRCUMSTANCES OF THE CASE.


     THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:


                           ORDER

The captioned writ petition is filed by the plaintiff

feeling aggrieved by the order dated 12.03.2018

passed by the learned Judge on I.A.No.4 filed under

Order VI Rule 17 seeking amendment of the plaint.

2. The plaintiff has instituted a suit for

injunction simplicitor in O.S.No.561/2012. The

plaintiff claims to be the absolute owner of the suit

schedule property. The plaintiff is asserting right and

title over the suit schedule property on the basis of

the registered sale deed dated 6.2.2003. Pursuant to

the purchase, the plaintiff claims that he has

commenced with the construction over the suit

schedule property and when it was almost at the

stage of completion, the defendants highhandedly

tried to interfere with the plaintiff's peaceful

possession and enjoyment and therefore, he was

compelled to file the suit for injunction simplicitor.

3. The plaintiff has specifically pleaded that

pending suit, after trial Court granted the interim

injunction in favour of the plaintiff, the defendants

have high handedly dispossessed the plaintiff and

therefore, the present application is filed seeking

amendment of the plaint. By way of proposed

amendment, the plaintiff intends to seek the prayer

regarding cancellation of the sale deed dated

3.12.2011 and 7.3.2011 and also seeking declaration

to declare that the judgment and decree in

O.S.No.2246/2007 is not binding on plaintiff. The said

application is rejected by the trial Court. The learned

Judge while rejecting the application was of the view

that even as per the plaintiff's version he was

dispossessed on 2.5.2012. The present amendment is

sought after lapse of 3 years 10 months. Therefore,

the learned Judge was of the view that in the absence

of valid and satisfactory reasons, the petitioner cannot

be permitted to seek amendment of plaint. The

learned Judge was also of the view that the proposed

amendment is hopelessly barred by limitation. One

more reason to reject the application by the learned

Judge is that if the proposed amendment is allowed it

would virtually change the fundamental character of

the suit and therefore, declined to exercise the

discretion and consequently proceeded to reject the

application.

4. The learned counsel for the petitioner-

plaintiff would vehemently argue and contend that the

parties were litigating before the Appellate Court in

M.A.No.86/2012. He further submitted that the entire

records were summoned by the appellate Court and

therefore, the plaintiff who was litigating before the

appellate Court was not in a position to take

appropriate measures on account of high handedness

on the part of the defendants. The plaintiff alleges

that when the construction was almost complete, the

defendants have dispossessed him. It is on account of

dispossession, the present application is filed. He

would point out that the amendment was sought at

pre trial stage and therefore, he would contend that

the learned Judge ought to have taken a lenient view

in allowing the amendment application rather than

rejecting it.

5. Per contra, the learned counsel appearing

for the respondents would strenuously argue and

contend that the material on record would clearly

demonstrate that the relief of declaration is hopelessly

barred and therefore, no purpose would be served if

the proposed amendment is allowed. To buttress her

arguments, she has placed reliance on the judgment

rendered by the Apex Court in the case of L.C.

Hnumanthappa .vs. H.B. Shivakumar1. Referring

to the principles laid down by the Apex Court, she

would contend that the doctrine of relating back the

amendment to the date of filing of the suit cannot be

extended to the present case on hand and if the

doctrine of relating back cannot be extended, then

from the records, it is clearly evident that the

proposed relief of declaration sought for by the

plaintiff is hopelessly barred by limitation. Therefore,

supporting the order under challenge, she would

(2016) 1 SCC 332

contend that the petitioner is not entitled for any relief

at the hands of this Court. Referring to the judgments

cited supra, she would contend that even in the

present case, the proposed amendment cannot be

allowed as it does not relate back to the date of filing

of the suit.

6. Heard the learned counsel for the petitioner

and learned counsel for the respondents. I have given

my anxious consideration to the pleadings averred in

support of the application and also the averments

made in the objection to the amendment application.

I have also gone through the dictum laid down by the

Apex Court in the judgment cited supra.

7. The plaintiff is asserting title on the basis of

the registered sale deed dated 14.2.2003 whereas the

defendants are asserting title on the basis of the

registered sale deed dated 3.12.2011. If these two

title documents are taken into consideration, then

I am of the view that the plaintiff is entitled to

incorporate additional paragraphs as well as additional

reliefs sought by way of proposed amendment. The

petitioner is asserting right and title on the basis of

the registered sale deed of the year 2003. It is the

further specific case of the plaintiff that during the

pendency of the suit, when he had the benefit of

interim injunction, the defendants have dispossessed

him. This fact is seriously disputed by the

respondents. Now by way of amendment, the plaintiff

has sought the relief of declaration seeking

cancellation of sale deeds and is also seeking the relief

of possession, which is based on a title document.

Therefore, having regard to the nature of controversy

and having regard to the nature of reliefs sought in

the present suit by way of amendment, this Court is of

the view that complex disputed questions of facts are

involved.

8. It is more than a trite that while

considering the amendment application, the Courts

should not venture into examining merits of the

proposed amendment. It is also more than a trite

that while considering the amendment application

which is filed at pre-trial stage, the Courts have to be

more liberal in allowing the amendment application.

The proposed amendment which is sought is based on

alleged high handedness on the part of the

defendants. The plaintiff is alleging that he is

dispossessed pending suit. Based on subsequent

events, it is quite open for the plaintiff to file an

independent suit. If the plaintiff can maintain an

independent suit, then in the light of the principles laid

down by the Apex Court in the case of Sampath

Kumar vs. Ayyakannu and another2, the petitioner

should not be discouraged from seeking amendment

in the pending suit so as to avoid multiplicity of

proceedings. However, the proposed amendment in

the present case on hand would not relate back to the

date of filing of the suit. The complex question as to

whether the relief of declaration sought in the present

case cannot be entertained and granted in terms of

Article 58 of the Limitation Act is the question to be

determined only after full fledged trial. The intricate

question as to whether the petitioner has to seek the

relief of declaration and the question as to whether

the consequential relief of possession which is based

on title is also hit by the provisions of the Limitation

Act are all disputed questions of fact which can only

be ascertained after a full fledged trial. This Court

would also find that valuable rights are involved. The

petitioner claims that he has acquired title on the

(2002) 7 SCC 559

basis of the registered sale deed of the year 2003. He

further claims that he has invested huge amount and

has put up construction. When the construction was

almost complete, the defendants have dispossessed

him and taken possession of the residential house. If

these significant allegations are looked into, this Court

would find that the valuable rights are involved and

therefore, by rejecting the proposed amendment, the

petitioner's valuable rights cannot be curtailed at the

threshold without affording an opportunity to the

petitioner to establish the same in a full fledged trial.

9. Therefore, this Court would find that the

learned Judge has not exercised the discretion based

on a sound judicial principle, rather the learned Judge

has adopted a very hyper technical approach and has

proceeded to reject the proposed application. By

rejecting the application, the petitioner is virtually

non-suited as the petitioner has admitted in the

proposed amendment that he is dispossessed. It is in

this background, this Court is of the view that the

order under challenge warrants interference at the

hands of this Court as the impugned order is not at all

sustainable.

10. Hence, I proceed to pass the following:

ORDER

The writ petition is allowed. The order dated

12.03.2018 passed by the learned Judge on I.A.No.IV

filed under Order VI Rule 17 read with Section 151 of

CPC is set aside. Consequently, the application

I.A.No.IV stands allowed. The petitioner-plaintiff is

permitted to incorporate the proposed amendment.

It is open for the present respondent-defendant

to file additional written statement, if he intends to do

so.

All contentions are kept open.

Any observations made by this Court during the

course of this order shall not influence the trial Court

while rendering the judgment on merits.

Both the parties shall co-operate with the trial

Court and the trial Court is directed to decide the case

as expeditiously as possible.

Sd/-

JUDGE

*alb/-