Karnataka High Court

Mr Achankunju vs Mr Thomas Joseph on 4 December, 2023

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                            NC: 2023:KHC:43684
                                                        WP No. 4652 of 2021




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 4TH DAY OF DECEMBER, 2023

                                              BEFORE

                              THE HON'BLE MR JUSTICE S.G.PANDIT

                           WRIT PETITION NO. 4652 OF 2021 (GM-CPC)

                      BETWEEN:

                      MR. ACHANKUNJU
                      S/O KUNJACHAN
                      AGED ABOUT 68 YEARS
                      R/AT SHAN VIEW HOUSE
                      LAILA VILLAGE AND POST
                      BELTHANGADY TALUK-574214
                      DAKSHINA KANNADA DISTRICT.
                                                                 ...PETITIONER
                      (BY SRI. J.M.ANIL KUMAR, ADV.)


                      AND:

Digitally signed by   1.   MR. THOMAS JOSEPH
A K CHANDRIKA              S/O JOSEPH
Location: High             ADVOCATE
Court Of
Karnataka                  AGED ABOUT 44 YEARS
                           R/A MANNUR HOUSE
                           CHEMPAMTHOTTY VILLAGE AND POST
                           TALIPARAMBA TALUK-670 631
                           KANNUR DISTRICT, KERALA STATE.

                      2.   MR. MUHAMMED KUNJI
                           S/O ABDUL KHADER
                           AGED ABOUT 55 YEARS
                           R/A THASSIFA COTTAGE
                           CHERUR POST
                           KASARGOD DISTRICT-676304
                           KERALA STATE.
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                                     WP No. 4652 of 2021




3.   MR. P M SEBASTIAN
     S/O MANI THOMAS
     AGED ABOUT 50 YEARS
     R/A POOVAKKOTTU HOUSE
     KUNJARATHANAM
     P.O KURUPANTHARA
     VAIKKOM TALUK
     KTTAYAM DISTRICT-673620
     KERALA STATE.

4.   MR. SANDEEP JAYANT SUKHTANKAR
     S/O JAYANT NARAYAN SUKHTANKAR
     AGED ABOUT 43 YEARS
     R/AT DOOR NO.1301, HURRAH
     CITY OF JOY, J S D ROAD,
     MULAD (WEST), MUMBAI-400 080
     MAHARASHTRA STATE.

5.   MR. P B ABDUL RAZAK
     S/O BEERAN MOIDEEN HAJI
     SINCE DEAD BY HIS LRS

     5(A) SAFIA RAZAK
     W/O LATE ABDUL RAZZAK
     AGED ABOUT 55 YEARS

     5(B) SHAFEEEQ RAZZAK
     S/O LATE ABDUL RAZZAK
     AGED ABOUT 35 YEARS

     5(C) SEYIRA
     D/O LATE ABDUL RAZZAK
     AGED ABOUT 33 YEARS

     5(D) SHYLA
     D/O LATE ABDUL RAZZAK
     AGED ABOUT 31 YEARS

     5(E) SHYAMA
     D/O LATE ABDUL RAZZAK
     AGEDA BOUT 29 YEARS
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                                        WP No. 4652 of 2021




     5(A) TO 5(E) ARE R/AT
     S S MANZIL, TAJ NAGAR
     ALAMBADY PSOT
     KASARGUD TALUK AND DISTRICT
     KERALA STATE-673620
                                          ...RESPONDENTS
(BY SRI.PRANAV RAVI, ADV. FOR R3
 SMT. ANANYA NAGARAGADDE, ADV. FOR
 SRI SHREYAS JAYASIMHA, ADV. FOR R4
 R1, R2 & R5(A) TO R5(E) ARE SERVED & UNREPRESENTED)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 03.02.2021 PASSED BY THE LEARNED SENIOR
CIVIL AND JMFC AT N.R.PURA ITERNTE AT SRINGERI ON
I.A.42/2020 IN O.S.NO.11/2018 FILED BY THE PETITIONER
UNDER ORDER 6 RULE 17 R/W SECTION 151 OF CPC VIDE
ANNEXURE-D TO THE W.P. AND ALLOW THE APPLICATION
NUMBERED     AS   IA   NO.42/2020   IN   O.S.NO.11/2018
(O.S.NO.122/20211) PENDING ON THE FILE OF LEARNED
SENIOR CIVIL AND JMFC AT N.R.PURA ITERNATE AT SRINGERI.

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

                          ORDER

The petitioner, plaintiff in O.S.No.11/2018 on the file

of Senior Civil Judge and JMFC at N.R.Pura is before this

Court, aggrieved by rejection of I.A.No.42/2020 under

Order VI Rule 17 of CPC to amend the plaint.

2. Heard learned counsel Sri.J.M.Anil Kumar for

petitioner/plaintiff and learned counsel Sri.Pranav Ravi for

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respondent No.3, learned counsel Smt.Ananya

Nagaragadde for Sri.Shreyas Jayasimha, learned counsel

for respondent No.4. Perused the writ petition papers.

3. Learned counsel for the petitioner would submit that

the suit of the petitioner/plaintiff as filed initially is for

specific performance, with a prayer for passing a judgment

and decree directing the defendants to receive balance

sale consideration of Rs.75,00,000/- and to register the

Title Deed in respect of plaint "A" schedule property to the

plaintiff and in the alternate to direct the defendants 1 and

2 to pay Rs.1,35,00,000/- with interest at the rate of 12%

p.a. to the plaintiff from the date of agreement till

realization, if the Court finds that the contract cannot be

enforced. Learned counsel for the petitioner would submit

that when the suit was at the stage of final arguments on

the main, the petitioner/plaintiff filed I.A. under Order VI

Rule 17 of CPC to amend the plaint to include additional

averment i.e., paragraphs 13(a) to 13(d). Learned

counsel would submit that the petitioner/plaintiff proposed

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to include averments with regard to arbitration

proceedings in O.P.No.755/2007 before the Hon'ble

Ernakulam District Court, Kerala; to add averment as to

how the plaintiff got possession of the suit schedule

property; that the defendants No.1 to 3 and 5 have not

taken any steps for registering Title Deed of 144 acres of

the suit schedule property even after receiving sale

consideration amount of Rs.1,35,00,000/- from the

plaintiff; also to state that the plaintiff also filed a criminal

case against the first defendant and to say that Ex.D1 is

nothing but concocted and created document. In the

affidavit accompanying application, the only reason

assigned by the petitioner/plaintiff is that on engaging new

Advocate while preparing for arguments on merits, it was

felt that amendment to plaint would be necessary to bring

on record the above stated facts. Learned counsel for the

petitioner would submit that the proposed amendment

would not change the nature or complexion of the suit in

any manner. Moreover, he submits that no prejudice

would be caused to the respondents/defendants. Further,

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he submits that the amendment of plaint as prayed would

assist the Court in proper appreciation of the dispute

between the parties. Thus, he prays for allowing the writ

petition.

4. Per contra, learned counsel for the respondents

would support the order passed by the trial Court and

submit that the petitioner/plaintiff has not explained due

diligence as required under proviso to Order VI Rule 17 of

CPC. It is submitted that unless the Court records its

satisfaction with regard to due diligence of the party who

seeks amendment, the Court would not get jurisdiction to

entertain amendment application. Moreover, it is

submitted that when the suit is at the stage of arguments

on the main, the petitioner/plaintiff could not have filed

the present application for amendment, which is legally

unsustainable. Thus, he prays for dismissal of the writ

petition.

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5. Having heard the learned counsel for the parties and

on perusal of the writ petition papers, I am of the view

that the petitioner has not made out any ground to

interfere with the impugned order. Moreover, the

impugned order is neither perverse nor suffers from any

material irregularity so as to warrant interference under

Article 227 of the Constitution of India.

6. Order VI Rule 17 of CPC provides for amendment of

pleadings. In terms of the said provision the Court may at

any stage of the proceedings allow either of the parties to

alter or amend pleadings in such manner and on such

terms, as may be just and necessary for the purpose of

determining real questions in controversy between the

parties. But the proviso to sub-rule puts restriction on the

Court, while considering the amendment application after

commencement of trial. If the amendment sought is after

commencement of trial, unless the court is satisfied with

regard to due diligence that the party could not have

raised the matter before commencement of trial, the Court

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would not get jurisdiction to allow such application.

Normally, amendments are allowed to do substantial

justice and to minimize litigations.

7. The Hon'ble Apex Court in a decision in the case of

VIDYABAI AND OTHERS VS. PADMALATHA AND

ANOTHER reported in (2009) 2 SCC 409 has held that

unless the Court comes to a conclusion that in spite of due

diligence, the party could not have raised the matter

before the commencement of trial, the Court would not

get jurisdiction to allow such application. Relevant

Paragraphs 10 and 19 of the above decision reads as

follows:

"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:

"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 matter before the commencement of trial."

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It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

In the instant case, admittedly the suit was at the stage of

arguments on main when I.A.No.42/2020 was filed under

Order VI Rule 17 of CPC to amend the plaint to include

additional averments. Admittedly, it is a post-trial

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amendment. If the amendment is sought after

commencement of trial, it is for the party who seeks

amendment to explain as to why he could not bring such

amendment earlier. In the instant case, the only

explanation found in the affidavit accompanying

application is that there was change of Advocate on behalf