H.M. Jagadeesh vs Basavanna and Others

Ram Mohan Reddy, J.—Defendant No. 3 in O.S. 60/2003 on the file of the II Civil Judge and JMFC, Mysore aggrieved by the common order dated 11.1.2013 rejecting IA-13 under Order 8 Rule 1(a) and IA-14 under Order 6 Rule 17 CPC has presented these petitions.

Respondent No. 1 instituted O.S. 60/2003 arraigning respondents 2 and 3 as defendants 1 and 2, to declare, as null and void, and not binding on him the sale deed dated 6.8.1959 executed by his father in favour of the father of defendants, and for permanent injunction restraining defendants from receiving compensation from the Mysore Urban Development Authority, Mysore, on acquisition of the suit schedule property. That suit was contested by filing written statement of defendants 1 and 2. Thereafterwards petitioner is said to have made an application under Order 1 Rule 10(2) CPC to be impleaded as defendant No. 3, accompanied by an affidavit stating that plaintiff is the son of one Dodda Mugaiah @ Makaiah, who executed the sale deed in favour of one H.S. Nagappa, since deceased, the paternal uncle of the petitioner, while petitioner''s father, by name H.S. Mahadevappa, since deceased, is the brother of H.S. Nagappa, also no more. It was also asserted that the suit schedule property was subject matter of joint family property in which petitioner has an undivided interest, hence is a proper and necessary party. On impleading the petitioner as 3rd respondent, opposed the suit by filing a written statement on 27.11.2007, inter alia, stating in paragraph 2, that petitioner''s father H.S. Nagappa and plaintiff Basavanna are Class I heirs and further that plaintiff''s father is the paternal uncle, while H.S. Mahadevappa and H.S. Nagappa are brothers, and all are related to the plaintiff.

Plaintiff having amended the plaint at paragraph 11(a) necessitated the 3rd defendant-petitioner to file an additional written statement over the amended plaint. In the premise of pleadings of the parties the trial Court framed issues, the parties entered trial and on the closure of the side of the plaintiff, at the stage of recording the testimony of defendants'' witnesses, the 3rd defendant, filed IA-14/11 under Order 6 Rule 17 CPC to amend the written statement, to delete line 2 of paragraph 2 of the written statement wherein reference was made to the relationship of the 3rd defendant with the plaintiff. In other words, H.S. Nagappa, H.S. Mahadevappa and H.S. Thotappa being Class I heirs, the 3rd defendant the son of H.S. Mahadevappa, hence, were not related to the plaintiff and that his uncle H.S. Nagappa having purchased the property from out of joint family funds, it is a joint family property. In addition, petitioner sought to incorporate an additional plea at paragraph 2(a) of the written statement, to contend, that H.S. Nagappa had purchased the property from out of the joint family funds on 6.8.1959 under the registered sale deed from Doddamoogaiah @ Makaiah, father of the plaintiff and was put in possession of the same, while, the mortgagee Javanamma released the mortgage in favour of H.S. Nagappa by executing an unregistered ''Khulase patra'' dated 6.8.1959. In the affidavit accompanying the application, it was stated that the necessity for the amendments was a mistake of fact over the relationship and to amplify 3rd defendant''s source of title to the suit schedule property.

That application was opposed by filing statement of objections of the plaintiff inter alia asserting that by allowing the application, it would take away the valuable rights accrued to the plaintiff, causing untold hardship and prejudice.

Petitioner also filed IA-13 under Order 8 Rule 1-A of the CPC to produce document mentioned in the memo and to condone the delay in doing so. In the affidavit, it was stated that the document being a release deed/ ''Khulase Patra'', when misplaced and found, recently, along with other documents, being relevant for adjudicating the dispute between the parties required to be placed on record. That application was opposed by filing statement of objections of the plaintiff inter alia denying the assertions in the affidavit and contending that the application was misconceived, while, the claim that the documents were misplaced was a story created by the 3rd defendant, in addition, that plaintiff is taken by surprise.

The trial Court having regard to the pleadings of the parties in the IAs and objections, framed points for consideration, answered in the negative, and dismissed the IAs'' by the order impugned.

Learned counsel for the petitioner submits that at the very threshold, in the affidavit accompanying IA under Order 1 Rule 10(2) CPC to be impleaded as a proper and necessary party, defendant No. 3, advanced a specific plea that his father by name H.S. Mahadevappa, along with his other brothers viz., H.S. Nagappa and H.S. Thotappa were Class I heirs and that he claimed title through H.S. Nagappa who purchased the property during the year 1959 from out of joint family funds. According to the learned counsel that pleading though required to be made in the written statement dated 27.11.2007, nevertheless a mistake crept in paragraph 2 of the written statement by stating that plaintiff and the defendants were relatives. It is in this context, it is submitted the necessity to amend the written statement to point out that there existed no relationship between the plaintiff and his father including his uncles. In addition, learned counsel submits that though in the said affidavit as well as in the written statement a stand is taken over the deponent''s right, title and interest to the property in question, nevertheless, since not elaborated, and the misplaced document viz., ''Khulase patra'' having come to light on being traced with other documents, necessitated the amendment. In other words, learned counsel submits that the amendment was to amplify the right, title and interest asserted in the written statement.

Per contra, learned counsel for the plaintiff/respondent No. 1 seeks to sustain the order impugned as being well merited, fully justified and not calling for interference.

The trial Court having noticed the aforesaid facts as well as the pleadings of the parties in the application and objections, in great elaboration, recorded reasons and finding that:- the proviso to Order 6 Rule 17 did not permit amendment of the pleadings once the trial commenced except under exceptional circumstances; the failure to assign reasons for non production of documents at the earliest stage; defence when not taken at the earliest before the amendment; the proposed amendments altogether introduces a new case in defence and takes away the admissions in the written statement, a right accrued to the plaintiff, accordingly rejected the applications.

It is no doubt true that the proviso to Order 6 Rule 17 CPC does not permit amendments to pleadings once the trial has commenced, except in exceptional circumstances, whence a discretion is vested in the Court to allow amendments to pleadings.

In Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, the Apex Court held that if an amendment subserves the ultimate cause of justice and avoids further litigation, it has to be allowed and if the facts and circumstances warrant, the amendment has to be allowed, even if it is time barred; and in B.N. Kamalanabha Reddy Vs. Munivenkatappa and Others, , this Court held that there is no blanket ban to allow amendment even after commencement of the trial and courts have to be liberal, so as to meet the ends of justice, to avoid parties from instituting subsequent litigation.

If these two decisions are reckoned then the trial Court was not justified in recording a finding that the proviso created a bar to permit amendments, after trial commenced, without applying its mind to exceptional circumstances. That finding must necessarily stand negated.

It is no doubt true that in the affidavit annexed to the IAs, reasons, in great elaboration, though not forthcoming nevertheless all pleadings, were required to be noticed by the trial Court, to decide whether allowing the amendments would meet the ends of justice and avoid parties from instituting subsequent litigation, more so, in the light of the fact that it was not the case of the plaintiff that defendants were related to him and if that is so, then there was no reason to allow the amendment of the written statement to delete the contentions relating to relationship between the plaintiff and defendants. Therefore the question of admission of relationship between the parties did neither arise nor a right accrue to the plaintiff over such a pleading. The proposed amendment is not shown to introduce a new defence, since, all that is sought to be done is to undo the contention over relationship which in any event the plaintiff did not admit. The other amendment proposed is to amplify the case of the plaintiff, over the source of his title to the suit schedule immovable property on the basis of the registered sale deed and unregistered ''Khulase Patra''. Thus, amendments, in my considered opinion, do not introduce a new set of defence or retract from admission of facts, which would prejudice the case of the plaintiff. Therefore, the finding of the trial Court that a new case is made out by the amendment is perverse, wholly unjustified. In the absence of such a consideration, merely because reasons in great elaboration were not forthcoming in the affidavit accompanying the applications, the trial Court was not justified in rejecting IA-14 under Order 6 Rule 17 CPC.

In IA-13 under Order 8 Rule 1(a) of CPC petitioner having stated that the documents since misplaced and a certified copy obtained, hence the delay in producing the documents, in the facts and circumstances, was acceptable reasons to condone the delay and permits their production, since they touch upon facts, and for a complete adjudication of disputed facts. In that view of the matter, the trial court was not justified in rejecting IA-13.

Petitioner having not filed the applications well within time, must be saddled with costs.

In the result, these petitions are allowed. The order dated 11.1.2013 in O.S. 67/2003 is quashed. IA 13 under Order 8 Rule 1(a) and IA-14 under Order 6 Rule 17 CPC are allowed. Petitioner to file an amended written statement. Costs quantified at Rs. 2,000/- payable to the plaintiff before the trial Court on the next date of hearing.