Chandrappa and Others vs Satyabhama

A.N. Venugopal Gowda, J—The respondent, as the plaintiff, has instituted the suit against the petitioners/defendants, to pass a decree of permanent injunction in respect of the plaint schedule property. The petitioners have filed written statement on 08.12.2010 and contested the suit. Issues have been raised on 22.07.2010. Trial was concluded on 16.10.2012. At that stage, on 01.04.2013, I.A was filed by the plaintiff, under Order VI Rule 17 of CPC, to permit the amendment of the plaint, in the manner proposed. Objections filed to the said application having been found to be unacceptable, I.A was allowed on 29.03.2014 and the plaintiff was permitted to incorporate the proposed amendment. Assailing the said order, as at Annexure-A, this writ petition was filed.

Sri. Prakash T. Hebbar, learned advocate for the petitioner, by placing reliance on the decision in Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others, (2013) 4 ABR 886 : (2013) 5 AD 449 : AIR 2013 SC 3188 : (2013) 116 CLT 357 : (2013) 9 JT 98 : (2013) 2 RCR(Civil) 965 : (2013) 6 SCALE 181 : (2013) 9 SCC 485 : (2013) AIRSCW 3430 contended that there being lack of diligence on the part of the plaintiff, Trial Judge is unjustified in permitting the plaintiff to incorporate the proposed amendment. Learned counsel submitted that in view of attraction of the proviso to Rule VI of Order VI of CPC, the impugned order being illegal, interference is called for.

Sri. C.M. Nagabhushana, learned advocate appearing for the respondent, on the other hand, contended that there being inadvertent typographical errors, which were noticed on 01.04.2013, I.A was filed seeking permission to amend the plaint and as the proposed amendment neither introduces a new case nor new cause of action, much less, the nature of the suit would undergo any change, for deciding the real controversy between the parties has rightly been allowed and such an order is not liable for interference in exercising power under Article 227 of the Constitution of India.

The amendment proposed by filing an application on 01.04.2013 reads as follows:

PROPOSED AMENDMENT:

At para-2 of the facts of the case at 6th line after the word "from the" and before the word "first defendant", to be added "father of the".

At para-1, at 2nd line after the word Kaneshumari No. 211, to be deleted "present BBMP No. 21/2B" and to be added "BBMP Property No. 211".

At Para-2, at 11th line after the word Revenue Lay-out to be deleted "in erstwhile Survey No. 21/2B".

In schedule at 2nd line after the word Kaneshumari No. 211 to be deleted "present BBMP No. 21/2B" and to be added "the BBMP Property No. 211".

By the proposed amendment, certain words and figures have been permitted to be substituted. Reason assigned in the accompanying affidavit to permit the proposed amendment is a bonafide mistake. The Trial Judge being convinced, that to decide the real question in controversy between the parties, has allowed the I.A, by imposing cost on the plaintiff/applicant.

In Surender Kumar Sharma Vs. Makhan Singh, (2009) 12 SCALE 665 : (2009) 10 SCC 626 : (2009) 9 UJ 4486 , the Trial Court rejected the application for amendment of the plaint mainly on the ground that prayer for the amendment is a belated one. The said order was affirmed in the exercise of the revision jurisdiction by the High Court. When the matter was taken up before Apex Court, it was held as follows:

"Para 5. As noted here in earlier, the prayer for amendment was refused by the high court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.

Para 6. It is also well settled even if the amendment prayed for is belated, while considering such belated amendment, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise, (See B.K. Narayana Pillai v. Parameswaran Pillai.) Accordingly, we do no find any reason to hold that only because there was some delay infilling the application for amendment of the plaint, such prayer for amendment cannot be allowed."

The impugned order being inconsonance with the decision of the Apex Court, noticed supra and there being no jurisdictional error, is not liable for interference in exercising power under Article 227 of the Constitution of India.

The decision on which Sri. Prakash T. Hebbar placed reliance, noticed supra, has no application to the instant case, as the proposed amendment in the instant case is of a minimal nature, confined to the substitution of few figures and words in the plaint and does not introduce any new case or new cause of action.

The delay in disposal of the suit being not detrimental to the defendants, they having been suitably compensated by way of cost. Further, they have also opportunity to file additional written statement and adduce further evidence, if any.

In the circumstances, this writ petition is rejected, by granting 30 days time to the petitioners/defendants to file additional written statement, if any, in the Trial Court.