Amarappa vs Sangavva and Others

R.S. Chauhan, J.—The petitioner is aggrieved by the order dated 10th of August 2015 passed by the Prl. Civil Judge & JMFC, Hunagund, whereby the learned Civil Judge has permitted three applications filed by the respondent-plaintiff viz., I.A. No. 10 filed under Order 6 Rule 17 r/w Section 151 of CPC, for seeking permission to amend the plaint, I.A. No. 11 filed under Order 18 Rule 17 r/w Section 151 of CPC for reopening the case, and for permitting the plaintiff to lead further evidence, and lastly I.A. No. 12 filed under Order 7 Rule 14 (A) r/w. Section 151 of CPC to permit the plaintiff to produce certified copies of the proceedings in O.S. No. 238/1998 and O.S. No. 203/1999.

Briefly the facts of the case are the plaintiff-respondent had filed a civil suit against the petitioner-defendant, namely, O.S. No. 237/2011 before the Prl. Civil Judge (Jr. Dn), Hunagund, for declaration, partition and for separate possession and also for permanent injunction against the defendant-petitioner. In the suit, the respondent No. 1-plaintiff No. 1 had claimed herself to be the wife of Basappa Huligudda. She had also claimed that respondent Nos. 1 and 2 are the children from their marriage. She further claimed that the defendant-petitioner was the son of Basappa Huligudda from his first wife. She further alleged that the suit properties are joint family properties of the plaintiff, and the defendant; that they have equal share in the suit schedule properties. The plaintiff-respondent further claimed that the defendant-petitioner has refused to give their respective shares to them.

In the written statement filed by the defendant-petitioner, he denied the marital relationship of the plaintiff-respondent No. 1 with his father. He further denied that the suit properties were joint family properties. According to the petitioner, the suit properties were self-acquired properties of Basappa, his father.

After the plaintiffs evidence was closed, and during the examination-in-chief of the defendant-petitioner, the plaintiff filed three interim applications mentioned above. The defendant- petitioner filed his objections to I.A. No. 10. After hearing the parties, by the impugned order, three interim applications were allowed by the learned trial Court. Hence, the present petition before this Court.

Mr. Girish A. Yadawad, the learned counsel for the petitioner has raised the following contentions before this Court:--

"Firstly that according to the proviso appended to Order 6 Rule 17 of CPC, an application for amendment should not be allowed after the trial has commenced. Since application had been filed after the plaintiff''s evidence was closed, obviously the application was filed much after the trial had commenced.

Secondly the plaintiff-respondent had failed to prove the fact that despite due diligence, the documents which were to be brought on record were not available with the plaintiff-respondent during the course of the trial. Since the learned trial Judge has clearly noticed the fact that these documents were available with the plaintiff for over a year, there was no reason whatsoever for the learned trial Judge to permit the applicant for amending the plaint. In order to buttress his plea, the learned counsel has relied on the case of E. Raghunathan v. R. Sarala (ILR 2014 KAR 5323).

Lastly that the impugned order has been passed by the learned trial Judge even without giving the defendant-petitioner a chance to file his objections to I.As. 11 and 12. Thus, the impugned order deserves to be set aside."

On the other hand, Smt. Rekha Patil, the learned counsel for respondents, has pleaded that the sole purpose of trial is to discover the truth involved in the controversy bought by both the parties. The plaintiff had claimed that she is the lawful wedded wife of Basappa and her two children were born during the wedlock. This particular stand taken by the plaintiff was vehemently denied by the defendant-petitioner. In order to establish this fact, plaintiff was justified in relying upon the pleadings which have been recorded and the applications which were filed in an earlier civil suits filed by Basappa against defendant-petitioner. Since these documents throw light on the controversy whether the plaintiff is the legally wedded wife of Basappa or not, these documents are crucial for doing complete justice to the parties.

Secondly, the proviso to Order 6 Rule 17 of CPC cannot be an obstacle for the Court in discovering the truth. After all, the proviso to Order 6 Rule 17 of CPC is merely a handmaiden of law and justice. It cannot be permitted to act as a master.

Lastly that the consequences of allowing the application under Order 6 Rule 17 of CPC would ipso facto mean that the plaintiff should be permitted to bring these documents on record, and to lead further evidence thereon. Therefore, even if an objection could not have been filed by the defendant-petitioner to the application Nos. 11 and 12, no prejudice has been caused to the defendant-petitioner.

Heard the learned counsel for the parties, and perused the impugned order.

Needless to say, the paramount task of any Court is to discover the truth that may lie between what the plaintiff pleads and what the defendant contends. Admittedly one of the issues before the trial Court is with regard to status of the plaintiff; while the plaintiff claims to be the lawfully wedded wife and claims that plaintiffs 2 and 3 are the legitimate children from Basappa, this stand has been vehemently denied by the defendant-petitioner. In case, the plaintiff does have the availability of certain documents which are basically the certified copies of the plaint, written statement and certain orders passed by the Civil Courts in an earlier litigation, and in case these documents do establish, to a certain extent, the stand taken by the plaintiff, then these documents do throw light on the controversy, and assist the Court in discovering the truth. Thus, there are no reasons why the proposed amendment should not have been allowed by the trial Court, and why these documents should not have been taken on record.

It is true that the proviso to Order 6 Rule 17 CPC does state that no application for amendment shall be allowed after the commencement of the trial, unless due diligence has been shown. Of course, in the present case, the trial Court has noticed the fact that these documents were available with the respondent-plaintiff for over a period of one year. But merely because there has been some negligence on the part of the respondent-plaintiff, would not mean that the trial Court should close its eyes to the documents which will throw light on the controversy. In case these documents are not permitted to be brought on record, firstly the Court will fail to fulfil its primary duty to discover the truth. Secondly, it could cause grave injustice to a woman who is trying to establish her marital status as the lawfully wedded wife of Basappa. The Court cannot be oblivious of the fact that if plaintiff fails to establish her marital status, it may jeopardise her social position in the society as well. Needless to say, when the Court is dealing with marital status of a woman with sensitivity, the Court has to permit the woman to produce documents which would establish her marital status. The Court cannot be ignorant of the fact that the finding on the marital status of a woman would have many repercussions. Moreover, a judicial finding on the marital status of the woman could also jeopardise the social status of the children alleged to be born during the wedlock. Therefore, before the proviso to Order 6 Rule 17 CPC is permitted to act as an obstacle, the Court has to realise the consequences of the order. It is only while considering the consequences of the order to be passed by the trial Court, the trial Court has permitted the application for amending the plaint. Hence, the proviso to Order 6 Rule 17 CPC cannot be permitted to act as a firewall against permitting an application for amending the plaint if the consequences are overwhelming.

The consequence of permitting amending application is naturally to permit the plaintiff to bring these documents on record and if necessary, to lead further evidence on this point. Hence, even if the trial Court did not wait for the defendant-petitioner to file his objections to I.A. Nos. 11 and 12, it would not prejudice the case of the defendant-petitioner.

The learned counsel for the petitioner has also pleaded that there are certain observations made by the trial Court with regard to relevancy of the documents which are sought to be produced. According to the learned counsel, these observations may prejudice the final outcome of the trial.

Although the anxiety expressed by the learned counsel for the petitioner is slightly misplaced, but by way of abundant caution, this Court directs the trial Court not to be swayed by its prima facie observations made in the impugned order. The trial Court is expected to assess the evidence produced by both the parties, both objectively and in accordance with law. Therefore, any observation made by the trial Court or any observation made by this Court should not influence the final judgment and decree to be passed by the trial Court.

For the reasons stated above, this Court does not find any merit in the present writ petitions. The Writ Petitions are dismissed.