Karnataka High Court
M/S Prime Books vs Baldwin Girls High School on 10 January, 2023
Bench: S.Sunil Dutt Yadav
-1-
WP No. 6448 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 6448 OF 2022 (GM-CPC)
BETWEEN:
1. M/S PRIME BOOKS
A PARTNERSHIP FIRM
SITUATED AT NO.16 AND 17
'C' CROSS, 43RD MAIN
IDEAL HOMES TOWNSHIP
2ND STAGE, RAJARAJESHWARI NAGAR
BENGALURU-560 098
REPRESENTED HEREIN BY ITS
AUTHORIZED SIGNATORY
MR. S. K. KHUSHDIL
... PETITIONER
(BY SRI. SRINIVAS RAGHAVAN, SENIOR COUNSEL FOR
SRI LOMESH KIRAN N., ADVOCATE)
AND:
Digitally signed
by VIJAYA P 1. BALDWIN GIRLS HIGH SCHOOL
Location: High NO.90
Court of
RICHMOND ROAD
Karnataka
BANGALORE-560 025
REPRESENTED HEREIN BY
ITS PRINCIPAL
-2-
WP No. 6448 of 2022
2. THE PRINCIPAL
BALDWIN GIRLS HIGH SCHOOL
NO.90
RICHMOND ROAD
BANGALORE-560 025
3. THE VICE CHAIRMAN
BALDWIN GIRLS HIGH SCHOOL
NO.90
RICHMOND ROAD
BANGALORE-560 025
4. THE CHAIRMAN
BALDWIN GIRLS HIGH SCHOOL
NO.90
RICHMOND ROAD
BANGALORE-560 025
5. THE MANAGER/CORRESPONDENT
BALDWIN GIRLS HIGH SCHOOL
NO.90
RICHMOND ROAD
BANGALORE-560 025
... RESPONDENTS
(BY SRI. PRADYUMNA L.N., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ALLOW THE
PRESENT PETITION AND CONSEQUENTLY SET ASIDE THE
ORDER DTD. 29.11.2021 IN O.S. NO. 970/2017 PASSED ON
I.A. 12 BY THE HON'BLE COURT OF THE XII ADDL. CITY CIVIL
AND SESSIONS JUDGE, BENGALURU (C.C.H. NO.27)
(ANNXURE-A) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
-3-
WP No. 6448 of 2022
ORDER
Petitioner who is the plaintiff before the trial Court
has filed the present petition seeking for setting aside of
the order passed on I.A.12 by the trial Court, whereby the
application filed under Order VI Rule 17 CPC seeking
amendment of the plaint came to be rejected.
2. The parties are referred to by their rankings
before the trial Court.
3. The plaintiff has filed a suit seeking for the
relief of permanent injunction restraining the defendants
from committing breach of the memorandum of
understanding dated 05.11.2014 or acting in a manner
other than as contained in the Memorandum of
Understanding dated 05.11.2014. The plaintiff has also
sought for a decree of permanent injunction restraining
the defendants or their agents or persons claiming through
them from cancelling / terminating any approvals granted
by the defendants to the plaintiff otherwise than in
WP No. 6448 of 2022
accordance with law / Memorandum of Understanding. The
suit came to be filed on 07.02.2017. Written statement
was filed.
4. The plaintiff filed an application under Order VI
Rule 17 CPC seeking for amendment of plaint by including
additional averment in paragraph No.10(a) alleging that
the defendants have violated the orders of the Court and
during the pendency of the suit, the defendants have
committed breach of the Memorandum of Understanding
and accordingly, plaintiff has suffered loss and is entitled
for damages and has sought for quantifying such loss.
Plaintiff has sought for a specific relief by way of a prayer
as regards payment of damages as quantified.
5. The case that is made out by the plaintiff in the
affidavit filed in support of the said application also
reiterates that the plaintiff has suffered loss by virtue of
breach of Memorandum of Understanding by the
defendants and accordingly, the amendment was sought.
WP No. 6448 of 2022
Objections were filed to the said application by the
defendants contending that the proposed amendment
would have the effect of introducing a new prayer and
converting the original suit for injunction into a suit for
damages and thereby there would be a change in the
nature of suit.
6. It is submitted that the proposed amendment
sought to be made ought to have been made at an earlier
point of time as the plaintiff had access to the all
information which forms the basis of proposed amendment
of paragraph 10(a) and Prayer 9(bb). It is further
submitted that the plaintiff themselves have elected to
seek relief of specific performance and accordingly, must
not be permitted to add new relief by way of damages. It
is also submitted that the plaintiff cannot be permitted to
improve their case by way of amendment to the plaint and
that the plaintiff is seeking to prolong the proceedings.
WP No. 6448 of 2022
7. The trial Court by its impugned order has
rejected the said application while observing that the
nature of suit would change from that of a suit for
injunction into a suit for damages and accordingly, the
same is not permissible. The Court has also observed that
the aspect of limitation is also a matter to be considered
and observes that no grounds are made out to allow the
application.
8. Heard both sides.
9. Sri. Srinivas Raghavan, learned Senior counsel
appearing for the petitioner had submitted that the point
of time when the application for amendment was filed was
prior to commencement of trial and that the relief for
damages has been sought in light of the subsequent
events relating to non-compliance with the interim order
and accordingly, the amendment was sought for. It is
further submitted that the prayer sought for is also
keeping in mind that the principle under Section 40(2) of
WP No. 6448 of 2022
the Specific Relief Act, 1963 (for short 'the Act') which
provides that no relief for damages can be granted unless
the plaintiff has claimed other relief in his plaint and that
the claim for damages may be permitted at any stage of
the proceedings by allowing carrying out of amendment on
such terms.
10. It is further submitted that the different relief
sought for on the same essential facts as pleaded in the
plaint ought to be permitted and must not construed to be
amounting to change in the nature of suit though
additional relief has been sought for.
11. Sri. Pradyumna, learned counsel appearing for
the respondents on the other hand would point out while
reiterating the contentions raised in the statement of
objections that the facts forming basis for amendment
were known to the plaintiff and it was a lapse on the part
of the plaintiff in not having pleaded at the time when the
suit was filed. It is also contended that the aspect of claim
WP No. 6448 of 2022
in terms of damages in terms of Section 40(2) of the Act
was neither raised nor considered by the trial Court and if
at all this Court is inclined to allow the petition while
setting aside the impugned order, the Court ought to send
the matter back for reconsideration on such aspect which
was not argued before the trial Court.
12. At the outset, it is to be noticed that the
amendment application has been filed at the stage prior to
commencement of trial. Insofar as such amendment
sought to be made by the plaintiff prior to commencement
of trial, the Apex Court in the case of Life Insurance
Corporation of India vs. Sanjeev Builders Private
Limited and another - (2022) SCC Online SC 1128, at
Paragraph No.70(xi) has held, where amendment is
sought before the commencement of trial, the Court is
required to be liberal in its approach.
13. Insofar as the contention raised relating to
change in the nature of suit, it must be noted that the
WP No. 6448 of 2022
premise of the suit is on the basis of the agreement
entered into between the plaintiff and defendants. No
doubt, the relief as sought for originally was one of
permanent injunction. However, the facts as made out in
the affidavit filed in support of the amendment application
states that the plaintiff has sought to claim damages in
light of the alleged breach of the interim order granted and
the acts of the defendant violating the interim order has
caused loss and such facts are narrated in the affidavit.
Though the question as to whether there was any loss
suffered by the plaintiff is a matter for trial and that by
itself cannot be a reason to reject the application for
amendment, the premise of facts on which the case rests
is on the basis of agreement and additional relief by way
of damages sought in light of subsequent events requires
to be dealt with liberally and it cannot be stated that a
different relief on the same premise of facts made out in
the plaint would result in change in the nature of suit.
- 10 -
WP No. 6448 of 2022
14. Insofar as the contention that the aspect of
Section 40(2) of the Act not having been raised before the
trial Court, it must be noted that in the proceedings before
the higher judicial forum where the correctness of the
order of the trial Court is questioned, while affirming the
order, the Court can take note of additional ground raised
as have been raised in the present case.
15. Section 40(2) of the Act also does have a
bearing on the amendment that is sought for. Section
40(2) of the Act reads as follows:
"(2) No relief for damages shall be granted
under this section unless the plaintiff has
claimed such relief in his plaint: Provided that
where no such damages have been claimed in
the plaint, the court shall, at any stage of the
proceedings, allow the plaintiff to amend the
plaint on such terms as may be just for
including such claim."
- 11 -
WP No. 6448 of 2022
16. Learned counsel for the respondent relies on
the judgment in the case of Asian Hotels (North)
Limited vs. Alok Kumar Lodha and others - (2022) 8
SCC 145. However, it must be noted that the observations
made by the Apex Court are in the context of nature of
amendment sought in that case, wherein the plaintiffs who
were perpetual licence holders had sought to challenge the
mortgage created on the entire premises as void ab initio
and it is in the context of such new relief that was sought,
the observations were made and accordingly, the
observations made by the Apex Court must be read in
proper context.
17. There is jurisdictional error as such by the trial
Court warranting interference in exercising power in the
present matter. Accordingly, case is made out to allow the
petition and set aside the impugned order. The impugned
order is set aside and application - I.A.12 filed under Order
VI Rule 17 CPC for amendment is allowed. Necessary
- 12 -
WP No. 6448 of 2022
amendment to be carried out to the plaint within two
weeks from the date of furnishing of certified copy before
the trial Court. Needless to state that the observations
made are only limited to the purpose of disposing off the
application and ought not to be considered as final
adjudication of the question of law or fact
Writ petition is accordingly disposed off.
Sd/-
JUDGE
VP
