Karnataka High Court

M/S Prime Books vs Baldwin Co Education Extension ... on 10 January, 2023

Bench: S.Sunil Dutt Yadav

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                                                           WP No. 6441 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.6441 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/PARTNER
                         MR. S. K. KHUSHDIL
                                                                ... PETITIONER

                   (BY SRI. SRINIVAS RAGHAVAN, SENIOR COUNSEL FOR
                       SRI LOMESH KIRAN N., ADVOCATE)

                   AND:

                   1.    BALDWIN CO-EDUCATION EXTENSION
Digitally signed
by VIJAYA P              HIGH SCHOOL
Location: High           2ND CROSS, 10TH MAIN
Court of                 5TH STAGE, BEML LAYOUT
Karnataka                RAJARAJESHWARINAGAR
                         BENGALURU-560 098
                         REPRESENTED HEREIN BY ITS PRINCIPAL

                   2.    THE PRINCIPAL SECRETARY
                         BALDWIN CO-EDUCATION EXTENSION
                         HIGH SCHOOL
                         2ND CROSS, 10TH MAIN
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                                     WP No. 6441 of 2022




     5TH STAGE, BEML LAYOUT
     RAJARAJESHWARINAGAR
     BENGALURU-560 098

3.   THE VICE CHAIRMAN
     BALDWIN CO-EDUCATION EXTENSION
     HIGH SCHOOL
     2ND CROSS, 10TH MAIN
     5TH STAGE, BEML LAYOUT
     RAJARAJESHWARINAGAR
     BENGALURU-560 098

4.   THE CHAIRMAN
     BALDWIN CO-EDUCATION EXTENSION
     HIGH SCHOOL
     2ND CROSS, 10TH MAIN
     5TH STAGE, BEML LAYOUT
     RAJARAJESHWARINAGAR
     BENGALURU-560 098

5.   THE MANAGER/CORRESPONDENT
     BALDWIN CO-EDUCATION EXTENSION
     HIGH SCHOOL
     2ND CROSS, 10TH MAIN
     5TH STAGE, BEML LAYOUT
     RAJARAJESHWARINAGAR
     BENGALURU-560 098

                                        ... 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. 965/2017 PASSED BY
THE HON'BLE COURT OF THE XII ADDL. CITY CIVIL AND
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                                                    WP No. 6441 of 2022




SESSIONS JUDGE, BENGALURU (C.C.H. NO.27) (ANNX-A) AND
ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
                               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 29.10.2014 or acting in a manner

other than as contained in the Memorandum of

Understanding dated 29.10.2014. The plaintiff has also

sought for a decree of permanent injunction restraining

WP No. 6441 of 2022

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

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.9(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

WP No. 6441 of 2022

reiterates that the plaintiff has suffered loss by virtue of

breach of Memorandum of Understanding by the

defendants and accordingly, the amendment was sought.

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 9(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

WP No. 6441 of 2022

their case by way of amendment to the plaint and that the

plaintiff is seeking to prolong the proceedings.

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

WP No. 6441 of 2022

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

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

WP No. 6441 of 2022

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

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

WP No. 6441 of 2022

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

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

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WP No. 6441 of 2022

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.

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

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WP No. 6441 of 2022

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."

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.