Karnataka High Court

Smt M K Vijayalakshmi vs Sri. Prakash P on 20 December, 2023

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                       NC: 2023:KHC:46456
                                                     WP No. 28690 of 2023




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 20TH DAY OF DECEMBER, 2023

                                        BEFORE

                       THE HON'BLE MR JUSTICE S.G.PANDIT

                   WRIT PETITION NO. 28690 OF 2023 (GM-CPC)

                BETWEEN:
                SMT. M K VIJAYALAKSHMI
                W/O SRI. K SRINIVAS MURTHY,
                AGED ABOUT 72 YEARS,
                R/AT NO.985, 4TH MAIN ROAD,
                D BLOCK, 2ND STAGE, RAJAJINAGAR,
                BENGALURU-560010.
                                                             ...PETITIONER
                (BY SRI. PRASHANTH P N, ADV.)
                AND:
                SRI. PRAKASH P
                W/O B POONARAM,
                AGED ABOUT 34 YEARS,
                R/AT NO.579, 1ST CROSS, 3RD MAIN
Digitally
signed by A K   NEAR POLICE STATION ROAD,
CHANDRIKA       HEBBAL, BENGALURU-560024.
Location:                                                  ...RESPONDENT
HIGH COURT
OF              (BY SRI.R.B. SADASIVAPPA, ADV. FOR
KARNATAKA        SRI B.S.NATARAJA, ADV. C/R)

                      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
                THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
                IMPUGNED ORDER DATED 12/10/2023 IN O.S. 3511/2019 ON
                I.A.-IV FILLED UNDER ORDER VI RULE 17 READ WITH
                SECTION 151 OF CIVIL PROCEDURE, PASSED BY THE XLII
                ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU
                (CCH-43) BY ISSUING A WRIT OF CERTIORARI AS THE
                IMPUGNED ORDER IS PERVERSE, CAPRICIOUS, ARBITRARY,
                AND BIASED FOR BEING PASSED WITHOUT PROPER JUDICIAL
                REASONING, PRODUCED HEREWITH AS ANNEXURE-F.
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                                               NC: 2023:KHC:46456
                                            WP No. 28690 of 2023




    THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

Petitioner/defendant in O.S.No.3511/2019 on the file

of the XLII Additional City Civil and Sessions Judge,

Bengaluru City (for short, 'Trial Court') is before this Court

aggrieved by order dated 12.10.2023 allowing I.A.No.4

filed by respondent/plaintiff under Order VI Rule 17 of CPC

to amend the plaint.

2. Heard the learned counsel Sri.Prashanth.P.N.,

for petitioner/defendant and learned counsel

Sri.R.B.Sadasivappa for Sri.B.S.Nataraj, learned counsel

for respondent/plaintiff. Perused the writ petition papers.

3. Learned counsel for the petitioner/defendant

would submit that suit of the respondent/plaintiff is one for

declaration that plaintiff is the absolute owner of the suit

schedule property and for possession. Learned counsel

would submit that after framing of issues,

respondent/plaintiff filed I.A.No.4 under Order VI Rule 17

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of CPC to amend the plaint to include additional averments

as well as additional prayers. Learned counsel would

submit that additional prayer sought is to declare that sale

deed dated 10.12.1998 standing in the name of defendant

does not bind the plaintiff. Learned counsel would submit

that said amendment to include additional prayer is barred

by limitation and the said application is filed belatedly after

more than 4 years from the date of filing of the suit.

Further, learned counsel would submit that there is no

explanation for delay in preferring amendment application,

that too after commencement of trial. Learned counsel

would places reliance on the decision of the High Court of

Andhra Pradesh at Amaravati in the case of IDEAL

COLLEGE OF ARTS AND SCIENCE, THROUGH ITS

GOVERNING BODY, REPRESENTED BY ITS

SECRETARY AND CORRESPONDENT VS. MEDICAL

EDUCATION SOCIETY, REP. BY ITS PRESIDENT.

(2022 SCC ONLINE AP 1446) and submits that once

issues are framed, it is deemed that trial is commenced.

Thus, learned counsel would submit that

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respondent/plaintiff ought to have explained his due

diligence and without there being explanation with regard

to due diligence, Trial Court committed an error in allowing

I.A.No.4. Further, learned counsel would submit that when

the defendant has raised question of limitation, Trial Court

ought not to have allowed to include additional prayer by

way of amendment. Thus, he prays for allowing writ

petition and to dismiss I.A.No.4.

4. Per contra, learned counsel Sri.R.B.Sadasivappa

would support the order passed by the Trial Court. Further,

learned counsel would submit that amendment sought is

pre-trial amendment and though issues are framed,

evidence on behalf of the parties is not yet commenced.

Thus, he would submit that when amendment sought

before commencement of evidence, party seeking

amendment need not explain due diligence. Further,

learned counsel referring to proviso to Rule 17 of Order VI

of CPC would submit that only in post-trial amendment

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applications, party needs to explain due diligence. Thus, he

would pray for dismissal of the writ petition.

5. Having heard the learned counsel appearing for

the parties and on perusal of the writ petition papers, I am

of the view that it would be appropriate to modify the

impugned order by obsering that amendment allowed by

Trial Court would take effect from the date of I.A.No.4 i.e.,

09.08.2023.

6. Suit of the respondent/plaintiff is one for

declaration of ownership as well as for possession of the

suit schedule property. Admittedly, before recording of

evidence, respondent/plaintiff filed I.A.No.4 under Order

VI Rule 17 of CPC to add additional averments and

additional prayers. The additional prayers sought by

respondent/plaintiff reads as follows:

"a. Pass a judgment and decree declaring that the plaintiff is the absolute owner of the suit schedule property.

aa. Pass a judgment and decree of possession by directing the defendant, here

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legal heirs, henchmen's etc., to vacate and hand over the vacant possession of the suit schedule property in favour of the plaintiff, in the event if the plaintiff fails to do the same then this Hon'ble Court can do the same with due process of law.

aaa. Pass a judgment and decree by declaring that the sale deed dated 10.12.1998 standing in the name of the defendant does not binding on the plaintiff."

7. One of the additional prayer sought is to

declare that sale deed dated 10.12.1998 is not binding on

the plaintiff. The suit is filed in the year 2019 and whereas

amendment application is filed in the year 2023 seeking

declaration of sale deed dated 10.12.1998 as not binding

on the plaintiff. Petitioner/defendant has raised question of

limitation. Normally, amendments are allowed to minimize

the litigation and to avoid multiplicity of proceedings.

8. The Hon'ble Apex Court in the case of RAJESH

KUMAR AGGARWAL AND OTHERS VS. K.K.MODI AND

OTHERS reported in (2006) 4 SCC 385 has made it clear

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that if the Court finds that amendment would be necessary

for proper adjudication of the dispute between the parties

and to avoid multiplicity of proceedings, the amendment

could be allowed at any stage of the proceedings to do

substantial justice. Relevant paragraphs 15, 18 and 19 of

the above decision reads as follows:

"15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of

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subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court.

19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

9. In the instant case also, Trial Court taking note

of the above principles allowed the amendment

application. Normally when amendment of pleading is

allowed, it would take effect from the date of presentation

of plaint, but the Court could depending on the facts of the

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case and contention taken could give effect to such

amendment from latter date. When the

petitioner/defendant has raised question of limitation,

amendment could be allowed protecting the interest of

petitioner/defendant. If it is observed that amendment

would come into effect from the date of amendment