Karnataka High Court
Surekha Nataraj vs Smt. Kumari on 2 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 2975 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 2975 OF 2024 (GM-CPC)
BETWEEN:
1. SUREKHA NATARAJ
D/O. MR. PUTTAVEERAIAH,
AGED ABOUT 58 YEARS,
R/AT NO. 76/1, SOUTH END ROAD,
BASAVANAGUDI,
BENGALURU-560 004.
2. P. UMASHANKAR
S/O. PUTTAVEERAIAH,
AGED ABOUT 65 YEARS,
R/AT POST BOX NO. 508,
NORWICH, CONNECTICUT-06360,
USA.
3. DR. H. N. KUMARA
S/O. NANJE GOWDA,
AGED ABOUT 50 YEARS,
R/AT NO. 8806, CHULAN PASS,
SAN ANTONIO, TEXA-78255,
USA.
Digitally signed
by VANDANA S THE PETITIONER NO.2
Location:
HIGH COURT REPRESENTING PETITIONERS NO.2 AND 3
OF AS THEIR GENERAL POWER OF
KARNATAKA
ATTORNEY HOLDER.
...PETITIONERS
(BY SRI. B K MANJUNATH.,ADVOCATE)
AND:
SMT. KUMARI
W/O. SRI. K. RAVI,
AGED ABOUT 36 YEARS,
R/AT DOOR NO. 36, CHOULAGALLI,
RAMANNA PETE, CUBBONPET,
BENGALURU-560 002.
...RESPONDENT
(BY SRI. M.N. UMASHANKAR. ,ADVOCATE)
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WP No. 2975 of 2024
THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS AND QUASH
THE IMPUGNED ORDER DTD 16.12.2023 ANNEXURE-A PASSED BY THE
LEARNED I ADDITIONAL CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU ON IA NO.1/21 IN O.S.NO.1010/2012.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition by the defendants in O.S.No.1010/2012 is
directed against the impugned order dated 16.12.2023 passed by
the I Addl. Civil Judge, Bangalore Rural District, Bangalore,
whereby the application I.A.No.1/2021 filed by the respondent-
plaintiff under Order 6 Rule 17, CPC seeking amendment of the
plaint was allowed by the Trial Court.
2. Heard learned counsel for the petitioners and learned
counsel for the respondent and perused the material on record.
3. A perusal of the material on record will indicate that the
respondent-plaintiff instituted the aforesaid suit in the year 2012
against the petitioners-defendants seeking permanent injunction
and other reliefs in relations to the suit schedule property. The said
suit is being contested by the petitioners-defendants, prior to the
commencement of a trial, respondent-plaintiff filed the instant
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application on 22.09.2021 interalia contending on account of
certain subsequent events that heard / transpired in the pendency
of the suit resulting in alleged disposition of the plaintiff from the
suit schedule property, respondent-plaintiff was considered to seek
additional prayers to declaration and possession together with
corresponding pleadings in this regard. The said application was
opposed by the petitioners-defendants who not only disputed the
various allegations and claim made in the proposed amendment
but also contended that the proposed amendment was barred by
limitation and would change or alter the nature and character of the
suit. After hearing the parties, the Trial Court proceeded to pass
the impugned order allowing the application by holding as under:
REASONS
"11. POINT No.1: Admittedly the plaintiff has filed this suit for
the relief of permanent injunction against the defendants.
Now the matter is set down for cross examination of P.W.1.
At this stage, the plaintiff has filed this application and sought
permission to amend the plaint as per the proposed
amendment. The defendants are denied the same and
prays to dismiss the application.
12. The rule of 17 of Order VI confirms wide discretion on a
court to allow either party to alter or amend his pleading of
any stage of the proceedings on such terms as it seems fit.
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Such discretion, however must be exercised judicially and in
consonance with well established principle of law.
13. The object of the rule is that, the Court should try the
merits of the case that, come before them and should
consequently allow all amendment that may be necessary for
determining the real question in controversy between the
parties provides if does not cause injustice or prejudice to the
other parties. Ultimately, court exits for the purpose of doing
justice between the parties and not for the punishing them.
And they are empower to grant amendment of pleading in
the larger interest of doing full and completed justice to
parties.
14. This court has carefully perused the proposed
amendment. The specific contention of the plaintiff is that
after filing of the present suit and passing order of temporary
injunction to restrain the defendants from interfering with the
possession and enjoyment of the suit schedule property, the
defendants illegally dispossess the plaintiff and put up shed
and compound wall on the suit schedule property. So, it
clears that after filing of the suit, the defendants are
trespassed in to the suit schedule property and dispossess
the plaintiff from the suit schedule. So, it is subsequent
event. Therefore in order to shorten the litigation, to
preserve and safeguard the fights of the both the parties and
to sub serve the ends of justice it is necessary to plead the
subsequent events in the plaint.
15. The plaintiff has filed this suit for permanent injunction
based on the possession over the suit schedule property.
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Now, the allegation of the plaintiff that the defendant forcibly
entered into the suit schedule property and put up compound
wall and shed in the schedule property. So, it clears that the
plaintiff is not in possession over the suit schedule property
and during the possession of this suit, the plaintiff was
dispossessed by the defendants. Therefore it is necessary to
seek the relief of declaration of title and possession.
Therefore present amendment seeking the relief of
declaration and recovery of possession and mandatory
injunction is necessary.
16. Admittedly the defendants are denying the very title and
possession of the plaintiff over the suit schedule property.
Under such circumstances, the suit for base injunction is not
maintainable without seeking the relief of declaration.
Therefore the proposed amendment is necessary for proper
adjudication of the suit. If the present application is allowed,
nature of the suit will not be changed. Only additional relief
added in the plaint and not changed the basic structure of
the suit. The Hon'ble Supreme Court in Sampath Kumar V/s
Ayyakannu (AIR 2002 SC 3369), held that an amendment a
suit filed for permanent prohibitory injunction into suit for
declaration of title and recovery of possession, it was
permissible.
17. In M/s Ganesh Trading Co. V/s Moji Ram (1978) 2 SCC
91, the Hon'ble Supreme Court of India held that the main
rules of pleadings in Order 6 CPC, 1908, show that provision
for the amendment of pleadings subject to such terms as to
costs and giving to all parties concerned necessary
opportunities to meet exact situations resulting from any
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amendment, are intended for promoting the ends of justice
and not for defeating them. This Court further held that the
amendment only sought to give notice to the defendant on
facts which the plaintiff would and could have tried to prove
in any case. Such notice was given only by way of abundant
caution so that no technical objection can be taken that what
was sought to be proved was outside the pleadings.
18. In Jai Jai Ram Maohar Lal V/s National Building Material
Supply, Gurgaon, 1969(1) SCC 869 It was held that a party
cannot be refused just relief merely because of some
mistake, negligence, inadvertence or even infraction of the
rules of procedure. The court always gives leave to amend
the pleading of a party, unless it is satisfied that the party
applying was acting malafide, or that by his blunder he had
caused injury to his opponent which may not be
compensated for by an order of costs. However negligent or
careless may have been the firs omission and however late
the proposed amendment, the amendment may be allowed if
it can be made without injustice to the other side.
19. In Ragu Thilak D. John V/s. S. Rayappan and other
(2001) 2 SCC 472 the Hon'ble Apex Court observed that the
amendment sought would change the nature of the suit
originally filed was not a reason for refusing application for
amendment and that the dominant purpose of Order VI Rule
17 was to minimize litigation and that the plea that the relief
sought for by way of amendment was barred by time is
arguable in the circumstances of the case. The Hon'ble Apex
Court further observed in para 5 as under:
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"5. After referring to the judgments in Charan Das v. Amir Khan,
AIR 1921 PC 50, L.J. Leach & Co., Ltd V. Jardine Skinner & Co.,
AIR 1957 SC 357, Gangabai V. Vijay Kumar, (1974) 2 SCC 393,
Ganesh Trading Co. V. Maoji Raj, (1978) 2 SCC 91 and various
other authorities, this Court in B.K. Narayana Pillai v.
Parameshwaran Pilla, (2000) 1 SCC 712 held: (SCC p.715, para
3)" 3. The purpose and object of Order 6 Rule 17, CPC is to allow
either party to alter or amend his pleadings in such manner and on
such terms as may be just. The power to allow the amendment is
wide and can be exercised at any stage of the proceedings in the
interests of justice on the basis of guidelines laid down by various
High Courts and this court. It is true that the amendment cannot
be claimed as a matter of right and under all circumstances. But it
is equally true that courts while deciding such prayers should not
adopt a hyper-technical approach. Liberal approach should be the
general rule particularly in cases where the other side can be
compensated with the costs. Technicalities of law should not be
permitted to hamper the courts in the administration of justice
between the parties. Amendments are allowed in the pleadings to
avoid uncalled - for multiplicity of litigation."
20. The defendants have specifically contended that present
application is barred by limitation. In support of their
contention, the defendants relied the decision of the Hon'ble
Supreme Court in Civil Appeal No.1700/2007 (arising out of
SLP(Civil) No.1729/2006. It is settled law that an
amendment application cannot be rejected merely on the
ground of delay when the opposite party can be
compensated by costs and no serious prejudice caused to
the other side.
21. Therefore this court is of the considered opinion that the
present amendment is necessary for the proper adjudication
of the present suit. Further allowing the present application
will curtail the further litigation in between the parties.
Further if granting of amendment really sub-serves the
ultimate cause of justice and await further litigation. If the
present application is allowed, no prejudice would be caused
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to other side. On the other hand, proposed amendment is
necessary for the determining the real question in
controversy between the parties. It is needless to say that
the defendants having every opportunity to file additional
written statement and contest the matter. Therefore, this
court is holds that the proposed amendment is necessary for
the purpose of determining the real question in controversy
between the parties. With these observations and for the
aforesaid reasons, this court has answered point No.1 in the
Affirmative.
22. POINT No.2: In view of the answer to point No.1, this
court proceed to pass the following;
ORDER
The I.A.1/2021 filed by the plaintiff under Order VI
Rule 17 R/w Section 151 of Code of Civil Procedure is
hereby allowed on costs of Rs.1000/-
The plaintiff is permitted to amend the plaint as per
the proposed amendment."
4. A perusal of the proposed amendment will indicate that
the same relates to certain subsequent events which are alleged to
have transpired during the pendency of the suit. The rival
contentions as regards the claims put forth by both parties in
relation to the proposed amendment would necessarily have to be
decided by the Trial Court after a full-fledged trial. However, for the
purpose of considering the application for amendment, suffice it to
state that the right of the petitioners-defendants can be adequately
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safeguarded by directing that the proposed amendment shall not
relate back to the date of the suit but shall be reckoned/considered
from the date of filing an application on 22.09.2021 and by keeping
the question /issue relating to limitation to be decided by the Trial
Court at the time of final disposal of the suit, as held by Apex Court
in the case of Sampath Kumar v Ayyakannu and Ors. - AIR
2002 SC 3369 and L.C. Hanumanthappa v H.B. Shivakumar -
(2016) 1 SCC 332 as well as Life Insurance Corporation of
India v Sanjeev Builders Private Limited and Ors
- AIR 2022 SC 4256.
5. Accordingly, the impugned order passed by the Trial
Court deserves to be modified and I.A.No.1/2021 deserves to be
disposed of.
6. In the result, I pass the following:
ORDER
(i) Petition is hereby disposed of.
(ii) Impugned order dated 16.12.2023 in O.S.No.1010/2012
passed by the I Addl. Civil Judge, Bangalore Rural District,
Bangalore, is hereby, modified.
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(iii) I.A.No.1/2021 filed by the respondents-plaintiffs, stands
allowed subject to condition that the proposed amendment shall not
relate back to the date of the suit but shall be reckoned/considered
from the date of filing the application dated 22.09.2021, the said
application was filed by the respondent-plaintiff.
(iv) Liberty is reserved in favour of the petitioners-
defendants to file their additional written statement to the amended
plaint and put forth all defences including the defence of limitation.
(v) All rival contentions between the parties including the
question / issue relating to limitation is kept open, to be decided by
the Trial Court.
Sd/-
JUDGE
DHA
