Ashwini Pal vs Doddadase Gowda and Others

Aravind Kumar, J.

Heard Sri Krishna Murthy Hasyagar, learned Advocate appearing for petitioner and Sri G.S. Bhat, learned Advocate appearing for respondent-11. Notice to respondents-1, 9 and 10 has been dispensed with vide order dated 27.10.2014. Respondents-2, 6 and 8 are served and unrepresented. Notice to respondent-7 is dispensed with.

The benevolence extended by the trial Court to the parties has led to the sordid situation of this litigation languishing for the past 10 years. Synopsis furnished by the learned Advocates appearing for parties is clearly a pointer to the fact delay has occasioned on account of trial Court having granted adjournments time and again without any justifiable cause and obviously in the interest of justice.

Be that as it may. Petitioner who is the plaintiff has assailed the order dated 19.02.2013 -Annexure-J in this writ petition whereunder trial Court has rejected the application- Annexure-D filed under Order 6 Rule 17 CPC for amendment of the plaint.

It is the contention of Sri Krishna Murthy Hasyagar, learned Advocate appearing for petitioner that impugned order is liable to be quashed on the ground it is not readable and legible and as such, reasoning assigned by the trial Court for rejection of the application is not decipherable from the impugned order; allowing of the application would result in reduction in multiplicity of proceedings and immediately on permitting the plaintiff to file rejoinder to the written statement, amendment has been sought for without any undue haste and proposed amendment would not change the nature of the suit and it would enable the Court to adjudicate the real controversy between the parties. He would also elaborate his submission by contending that by proposed amendment which relates to bringing the plea of sale transaction having taken place between defendants-1 to 4 and 5th defendant is on account of 5th defendant having been subsequently impleaded in the suit and as such, additional relief of declaring said sale deed not binding on the plaintiff was sought to be incorporated which would neither change the basic structure of the suit nor defendants would be put to any hardship.

In support of his submissions, he has placed reliance on the following judgments:

"(1) M. Asik Ali v. The State of Tamil Nadu (Habeas Corpus Petition No. 4/2004, decided on 19.04.2004.).

(2) Pankaja and Another Vs. Yellappa (D) by Lrs. and Others,

(3) Abdul Rehman and Another Vs. Mohd. Ruldu and Others,

(4) Nanduri Yogananda Lakshminarasimhachari and Others Vs. Sri Agastheswaraswamivaru,

(5) Dalip Kaur and another Vs. Major Singh and others,

(6) Puran Ram v. Bhaguran and Another (Appeal (Civil) 1673/2008 Decided On 29.02.2008).

(7) Mr. Jomy Joseph v. Mrs. Vilja Aliswa C.K. (W.P. No. 38449/2014 Decided On 20.08.2014).

(8) Subbachari v. Devaraj and Others (W.P. No. 56648/2013 Decided On 15.09.2014)."

Per contra, Sri G.S. Bhat, learned Advocate appearing for respondent-11 would support the impugned order and contend that conduct of plaintiff is clear from the records namely, that he has been protracting the proceedings on one ground or the other and 5th defendant having placed on record the details regarding sale deed executed by defendants-1 to 4 in favour of 5th defendant way back on 16.07.2009 as well as on 30.11.2009, plaintiff was fully aware of this fact but for reasons best known did not take steps as expected of a reasonable and prudent person and valuable right which has been accrued to the defendants would be taken away if amendment application is allowed. Hence, he prays for dismissal of the application.

In support of his submission, he has relied upon the following judgments:

"(1) Vidyabai and Others Vs. Padmalatha and Another,

(2) Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others,

(3) Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Others,

(4) K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, "

Having heard the learned Advocates appearing for parties and on perusal of records as well as impugned order, this Court is of the considered view that only point which would arise for consideration is:

"Whether the Court below was justified in dismissing the application for amendment?"

Impugned order which is at Annexure-J no doubt is not legible, obviously for the reason that it has been hand written and such an exercise might have been undertaken by the learned Judge to avoid any further time being wasted or being spent on the said order being dictated, transcribed and typed. Though safe course which the learned Jude could have adopted is to ensure that typed copy is furnished, no fault can be found with the learned Judge inasmuch as, it is neither the case of petitioner - plaintiff nor the case of respondents-defendants that even after request being made for furnishing a typed copy, same has been turned down by the learned Judge. Even otherwise, learned Advocate appearing for contesting respondent-11 has made available typed copy of impugned order, contents of which is not seriously disputed by Sri Krishnamurthy Hasyagar, learned Advocate appearing for petitioner. In that view of the matter, this Court has compared the typed copy of impugned order as well as certified copy of impugned order appended to the writ petition which is at Annexure-J and found contents of typed copy is replica of the hand written order. As such, on the ground of impugned order being hand written, it cannot be set aside as sought to be contended by Sri Krishnamurthy Hasyagar, learned Advocate appearing for petitioner. Said contention is hereby rejected.

Now turning my attention to the core issue as to whether application for amendment ought to have been allowed or impugned order rejecting the application is to be sustained, when examined in the background of factual aspects, it would emerge that petitioner - plaintiff has filed a suit for specific performance of agreement of sale dated 21.09.2005. Suit in question came to be filed on 26.07.2007. Respondent No. 11 herein filed an application under Order 1 Rule 10(2) CPC to get himself impleaded on the ground that he has purchased suit schedule property from defendants-1 and 2 and their children under a registered sale deed dated 19.11.2005 for valuable consideration. Said application came to be allowed on 16.07.2009 and thereafter on 30.11.2009 written statement also came to be filed by 5th defendant i.e., 11th respondent herein vide Annexure-B to the present writ petition. In the said written statement, 5th defendant has specifically pleaded at paragraph 7 that he has purchased suit schedule property from his previous vendors under a registered sale deed 19.11.2005. Filing of such written statement was well within the knowledge of plaintiff. In fact, after four years of filing of written statement, application came to be filed by plaintiff to file rejoinder to the said written statement and same was allowed on 04.07.2013 and rejoinder to written statement came to be filed by plaintiff and same was taken on record. Thus, it cannot be gainsaid by plaintiff that he was not aware of either 5th defendant having purchased suit schedule property on 19.11.2005 or his filing of written statement on 30.11.2009 or plea regarding 5th defendant having purchased suit schedule property raised in I.A. filed under Order 1 Rule 10(2) CPC on 16.07.2009 not being within his knowledge.

Plaintiff on 19.02.2013 filed the application in question under Order 6 Rule 17 CPC seeking amendment of plaint. The proposed amendment reads as under:

"1. That after para 7, add para 7a to read as thus:

"7a. That subsequent to execution of the Agreement of Sale with the Plaintiff, the Defendants 1 to 4 and Defendant No. 5 have colluded with each other and have concocted some false documents to defeat the rights of the Plaintiff. The Defendants 1 to 5 have concocted a Registered Sale Deed dated 19-11-2005 purporting to sell the suit schedule property to the 5th Defendant. The said document is null, void and is not binding on the Plaintiff and it does not affect the rights of the Plaintiff."

That in the prayer column, line 5, after the words delivery of possession with costs, the following additional prayer may be added and for a declaration that the sale deed dated 19-11-2005 executed by the Defendants 1 to 4 in favour of Defendant No. 5 bearing Reg. No. 13621/05-06 as null, void and not binding on the Plaintiff."

Said application came to be resisted by fifth defendant i.e., 11th respondent herein and after adjudicating same, application came to be dismissed on the ground that right accrued in favour of the parties after recording of evidence, amendment could not be allowed. Though order may be cryptic, but on the said ground, it cannot be interfered with. As such, when claim of the plaintiff is examined namely, as to whether application for amendment ought to have been allowed, this Court is reminded of the judgment rendered by Hon''ble Apex Court in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, wherein Apex Court after considering the catena of judgments has laid down broad parameters which ought to be taken note of while considering an application for amendment of the pleadings namely, the factors which may be taken into consideration while dealing with application for amendment. It came to be held as under:

"Factors to be taken into consideration while dealing with applications for amendments

"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17 . These are only illustrative and not exhaustive."

As noticed therein, parameters laid down are illustrative and not exhaustive. Normally, application for amendment of pleadings is ordered to be allowed until and unless it works out injustice to other side or when it does not take away an accrued right of the opponent or it is expressly barred by law. There cannot be any straight jacket formula with regard to allowing or rejecting the application for amendment and this is the proposition which has also been laid down in judgments relied upon by learned Advocates appearing for the parties.

In this background it requires to be noticed that in the instant case, fifth defendant who came on record has stated in his application filed under Order 1 Rule 10(2) CPC that he purchased suit schedule properties from defendants-1 and 2 and their children under a registered sale deed dated 19.11.2005. Copy of said application filed under Order 1 Rule 10(2) CPC has been made available by learned Advocate appearing for petitioner and after said application having been allowed on 16.07.2009 and fifth defendant was permitted to come on record. He has filed his written statement on 30.11.2009 as per Annexure-B and he has reiterated what had been stated by him in the affidavit supporting the application for impleading. He has specifically contended that he had purchased suit schedule property under registered sale deed dated 19.11.2005. Thus, plaintiff was very much aware that as on 30.11.2009 defendant No. 5 had purchased suit schedule property, yet no diligence was exhibited by plaintiff to take steps to amend the pleadings.

On the other hand, parties went for trial to substantiate their respective claims. When the defendants sought to produce the said sale deed in the course of his evidence, at that juncture, plaintiff has come up with this application for amendment of plaint in question. Said application for amendment came to be filed on 19.02.2013 as per Annexure-D. On contest, it came to be rejected by the impugned order on the same day i.e., on 19.02.2013. Thereafter, plaintiff did not take any steps to challenge the said order. Yet again, he filed one more application similar to the one filed on 19.02.2013 and when it was noticed by the Court below that such an application having already been dismissed, a memo was filed on 08.04.2014 seeking permission to withdraw said application with liberty to adjudicate the matter before appropriate forum. As such, present writ petition has been filed.

As can be seen from the application, plaintiff intends to introduce the plea with regard to sale deed dated 19.11.2005 under which fifth defendant had purchased suit property much prior to the filing of suit and also an additional prayer to declare said sale deed dated 19.11.2005 as null and void and not binding on the plaintiff. There cannot be any dispute with regard to the proposition for amendment being allowed would relate back to date of filing of the suit until and unless the order itself would indicate otherwise. In the instant case, plaintiff is seeking for declaration that said sale deed executed by plaintiffs-1 and 2 and their children in favour of fifth defendant is not binding on the plaintiff. Said application has been resisted by fifth defendant on the ground that it is barred by limitation. It is no doubt true that even in cases where plea is barred by limitation, if such plea is very much necessary for adjudication of the dispute and if other attendant circumstances would reveal such application deserves to be allowed, it would be allowed. In this regard, judgment of Hon''ble Apex Court relied upon by Sri Krishnamurthy Hasyagar, learned Advocate appearing for petitioner in the case of Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, can be noticed wherein it has been held by Apex Court that there is no absolute rule that amendment in a case where it is barred by limitation should not be allowed. It has been held by Apex Court to the following effect:

"13. "But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments.

The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case."

The factual matrix obtained in the said case related to inclusion of prayer for declaration in a suit for bare injunction. Defence set up to oppose said application was that it was barred by limitation. On the one hand, plaintiff contended that his claim would fall under Article 64 or 65 of the Schedule to Limitation Act. On the other hand, defendant contended that it would fall under Article 58 and as such, it is barred by limitation. Hon''ble Apex Court in the facts obtained in the said case held that issue of limitation being mixed question of law and fact, it cannot be decided as an abstract principle of law. In that view of the matter, it allowed the application for amendment.

Yet again, Hon''ble Apex Court in the case of Abdul Rehman and Another Vs. Mohd. Ruldu and Others, has held that where relief sought for amendment is time barred should be decided in the light of the facts and circumstances of each case. It has been held in the said case as under:

"7. "It is clear that parties to the suit are permitted to bring forward amendment of pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others Vs. Gattu Mahesh and Others, and Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Others, . Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."

(Emphasis supplied)

As already noticed herein above, Apex Court in Revajeetu''s case has held that: the fact that claim is barred by law of limitation is one of the factors to be taken into account by the Court in exercising the discretion as to whether amendment should be allowed or refused, but it does not affect the power of the Court to allow the application if the amendment is required in the interest of justice.

Keeping these principles in mind, when the facts on hand are examined, yet again, it would indicate that on an application filed by fifth defendant for getting himself impleaded, he has specifically pleaded that he has purchased suit schedule property on 19.11.2005 and even in the written statement on 30.11.2009, he has reiterated said contention which was fully within the knowledge of plaintiff. Thus, it was incumbent upon the plaintiff to plead and state as to how he has been diligent in not put for thing the proposed plea at the earliest point of time. Affidavit filed in support of application for amendment is as vague, vagueness could be. There is not even a whisper as to the diligence exhibited by the plaintiff for filing application belatedly namely, after lapse of four years from the date of his knowledge. Plaintiff does not even say that he was not aware of fifth defendant having placed on record the fact of having purchased the suit schedule property on 19.11.2005. Thus, being fully aware of said sale transaction, plaintiff has allowed a right to accrue to the fifth defendant and now by virtue of proposed amendment such valuable right which is accrued to fifth defendant is being sought to be taken away and as such, trial Court has rightly refused to permit the plaintiff to incorporate the proposed amendment. It is because of this precise reason, though not stated in express words in the impugned order, trial Court has rejected the application. However, it is indicated in the impugned order that "rights accrued in favour of the parties after recording of evidence of both the parties and now case is set down for arguments, at that stage, application for amendment is not maintainable". There is no jurisdictional error committed by the trial Court in this regard.

With regard to issue regarding limitation, it requires to be stated that valuable right which is accrued to fifth defendant is claim of plaintiff becoming time barred. If as on the date of filing of application, claim of the plaintiff not being barred, then, this Court would have definitely allowed the application filed by plaintiff. Under Article 58 of the Limitation Act, 1963 right to seek for declaration would be three years when the right to sue first accrues. When this Article is applied, it has to be necessarily held that plaintiff being aware of the sale transaction way back as on 16.11.2009 or at least 30.11.2009 when fifth defendant filed his written statement, plaintiff ought to have sought for declaration of the said sale not binding on him within period of three years from the said dates and such an exercise having not been undertaken and application in question having been filed on 19.02.2013 which is after period of limitation came to an end or it becomes barred, it cannot be gainsaid that plaintiffs application ought to be allowed even in such an eventuality.

Yet another attendant circumstance which requires to be noticed is the fact that plaintiff has not been diligent and has been conducting the proceedings before the trial Court in a casual and pedantic manner. After dismissal of application for amendment on 19.02.2013, plaintiff filed one more application seeking the same relief on 02.04.2014 vide Annexure-F and when it was brought to the notice of trial Court by fifth defendant by filing statement of objections filed to said application vide Annexure-G that similar application had already been rejected on 19.02.2013, plaintiff filed a memo dated 08.04.2014 seeking permission to withdraw the second application with liberty to challenge the earlier order of rejection namely, one which is impugned in the present writ petition. This would only indicate that plaintiff has been conducting the proceedings in a casual manner without any seriousness and as such, there has been no due diligence on the part of plaintiff. Said application for amendment if allowed, it would take away the valuable right which is accrued to defendants and for these myriad reasons, this Court is of the considered view that there is no error in the impugned order for being interfered with by this Court.

For the reasons aforestated, I proceed to pass the following:

"(1) Writ petition is hereby dismissed with costs.

(2) Order passed by III Addl. Senior Civil Judge, Mysore in O.S. No. 1291/2007 dated 19.02.2013 on the application for amendment is hereby affirmed.

(3) Petitioner to pay costs of these proceedings which is quantified at Rs. 5,000/- to fifth defendant i.e., 11th respondent herein."

Ordered accordingly.